TRC Final Report

Volume 6

Section 1

Chapter 5

Subsection 3

A Few Reflections on the Provisions of the Act

30. In some instances, applicants applied for amnesty in respect of offences for which, they maintained, they had been wrongly convicted. Since the Act required that the conduct for which amnesty was sought should have constituted an offence or delict, the Committee could not consider such applications favourably. In some cases, co-applicants confirmed the innocence of such an applicant. The Committee referred those cases to the Department of Justice in the hope that they could be dealt with in terms of the Presidential prerogative . The Committee merely wishes to record that such cases could have been dealt with had the legislation either conferred additional powers on the Committee or provided for a concurrent process to deal with those cases.

31. In a few cases, the Committee found that gross human rights violations that did not fall within the ambit of the Act had occurred during and as a result of the conflicts of the past. These related mainly to intra-organisational conflicts. In such conflicts, the acts in question were not directed at a political opponent as required by the Act. Although these cases might have been deserving, they could not qualify for amnesty. This difficulty could have been addressed by extending the ambit of ‘an act associated with a political objective’ so as to encompass matters of this nature .

32. In many instances, where applications were unopposed and the facts common cause among all interested parties, the Committee was still compelled to hold public hearings merely by virtue of the fact that these matters concerned gros s human rights violations. These included, for example, matters related to conspiracies to commit a gross violation of human rights where plans were later aborted, and abductions of persons for a very limited period of a few hours without any physical harm being done to the victim. A wider discretion to grant amnesty in matters where the application was unopposed and the facts common cause, without having had to hold a public hearing, would have contributed to a more expeditious process and cost savings.

33. Applications for amnesty were received from persons in leadership positions in various political groupings, who accepted collective responsibility for (gross) human rights violations committed within the ambit of their policies or resulting f rom a misguided but bona fide belief that these violations were perpetrated in the implementation of such policies. Often these applications were made pursuant to calls by the Commission on persons in leadership to apply for amnesty. The application of the provisions of the Act to such matters was fully dealt with in the High Court review of the collective amnesty application by ANC leaders. The latter applications were eventually disposed of on the basis that no act or omission had been disclosed which constituted an offence or delict. The findings of the Committee in these applications were not, therefore, to the effect that an o ffence or delict had been committed for which amnesty was refused. On the contrary, the findings on the applications per se w e re that none of the applicants had committed any offence or delict.

34. The Committee considers it to be in the interests of justice to clarify the mistaken public impression that these applicants (most of whom occupy key public positions) a re liable for prosecution in the light of their unsuccessful amnesty applications. It is arguable whether statutory provision for such applications was necessary or would have benefited the Commission process.

Reconciliation and National Unity

35. The various participants experienced the Amnesty Committee process differently. Victims who attended hearings had to contend, generally speaking, with the reopening of old wounds. Their responses varied from strongly opposing to supporting applications for amnesty; from opposing the principles underlying the amnesty process to embracing them; from frustration with perceived nondisclosure by perpetrators to satisfaction at having learnt the facts; from animosity towards applicants to embracing them in forgiveness and reconciliation. Often they merely stated that they had learnt the truth and now at least they understood how and why particular incidents had happened.

36. Perpetrators’ attitudes ranged from taking pride in their past actions, to disavowing any further support for their earlier attitudes, to expressions of deep remorse. Often they had to experience the humiliation of public exposure of their shameful pasts. Others said that they would probably repeat what they had done in similar circumstances .

37 The Committee believes that, in all its many facets, the amnesty process made a meaningful contribution to a better understanding of the causes, nature and extent of the conflicts and divisions of the past. It did so by uncovering many aspects of our past that been hidden from view, and by giving us a unique insight into the perspectives and motives of those who committed gross violations of human rights and the context in which these events took place.

38. By sharing these insights, the Committee hopes that its efforts have made a real contribution to the challenge of ensuring that our country and future generations will continue to build on the process towards unity and reconciliation in which the Commission has played so integral a part.