TRC Final Report

Volume 6

Section 2

Chapter 2

Subsection 2

Amnesty and reparations: Achieving a balance

8. The argument that the case for reparations is well founded in the Constitution and in the Act is also supported and underpinned by a majority judgment of the Constitutional Court.¹⁶ The judgment emphasises the obligation on the state to meet the ‘need for reparations’ as enshrined in the Constitution.

9. The Act requires that, once a perpetrator has been granted amnesty, the right of the victims and/or their families to institute criminal and/or civil proceedings is extinguished .¹⁷ In 1996, the Azanian People’s Organisation (AZAPO) and several relative s¹⁸ of persons killed by the security forces challenged the constitutionality of the amnesty provisions .¹⁹ The Constitutional Court dismissed the application in a majority judgment. Affirming the constitutionality of the provisions, the Court²⁰ noted that the notion of amnesty was a cornerstone of the negotiated settlement and was enshrined in the ‘postamble’ to the Interim Constitution²¹ . However, the judgment noted that the ‘postamble’ made provision not only for amnesty, but also for a reparations process:

The election made by the makers of the Constitution was to permit Parliament to favour ‘the reconstruction of society’ involving in the process a wider concept of ‘reparation’ which would allow the state to take into account the competing claims on its resources, but at the same time, to have regard to the ‘untold sufferings’ of individuals and families whose fundamental human rights had been invaded during the conflict of the past. ^{2 2}

10. The Court offered some examples of such reparations, including: bursaries and scholarships for the youth; occupational training and rehabilitation; surgical inter-vention and medical assistance; housing subsidies, and tombstones and memorials.²³

11. Thus it may be seen that the Act as passed by Parliament includes provisions for both amnesty and reparations, and embodies and endorses the spirit of the Interim Constitution.

12. Mr Justice Didcott, a Constitutional Court judge, issued a separate judgment in which he considered various constitutional matters and questions of law. In this judgment, which in no way disagrees with the majority view, Judge Didcott expressed the following opinion on the phrase ‘need for reparation’, which appears in the postscript of the Interim Constitution:

Reparations are usually payable by states, and there is no reason to doubt that the postscript envisages our own state shouldering the national responsibility for those. It therefore does not contemplate that the state will go scot-free. On the contrary, I believe, an actual commitment on the point is implicit in its terms, a commitment in principle to the assumption by the state of the burden. What remains to be examined is the extent to which the statute gives effect to the acknowledgment of that re sponsibility. The question arises because it was said in argument to have done so insufficiently.

The long title of the statute declares one of the objects that it promotes to be: ‘… the taking of measures aimed at the granting of reparation to, and the re h abilitation and restoration of the human and civil dignity of, victims of violations of human rights’.

Section 1 defines ‘reparation’ in terms that include – ‘… any form of compensation, ex gratia payment, restoration, rehabilitation or recognition ’. ^{2 4}

13. Judge Didcott discussed the effects of granting amnesty and the award of reparations as follows:

The statute does not, it is true, grant any legally enforceable rights in lieu of those lost by claimants whom the amnesties hit. It nevertheless offers some quid pro quo for the loss and established the machinery for determining such alternate redress .²⁵

14. Whilst the granting of reparations to victims whose rights to criminal prosecution and civil claims have been destroyed by the granting of amnesty to perpetrators may conceivably be described as a quid pro quo, it must be noted that the proportion of victims emerging from the amnesty process is relatively small compared to the total number of persons declared to be victims by the Commission. It must be stressed, however, that any reparation policy that attempted to make a distinction between these two categories of victims would be divisive and counter- productive.