Blanket amnesty poses a threat to reconciliation

Graeme Simpson

As the Transitional Executive Council started its sittings, most South Africans celebrated the success of two years of stormy bilateral and multi-party negotiations. However, in the midst of the celebration, it is easy to lose sight of some of the socially compromising agreements that were made in order to drive the negotiation process forward.

One such agreement was the negotiated amnesty granted under the Further Indemnity Act to those involved in acts of political violence before October 8, 1990.

The Sunday Times reported that government had sought to have the general amnesty extended to include all political offences committed before December 1 this year. It was reported that in terms of the proposal, the identity of killers of at least 10 000 victims of political violence over the past three years would, by implication, remain secret and the victims' families would be denied any right to sue for compensation.

Furthermore, it was also proposed that anyone disclosing details about the granting of amnesty to a killer could be imprisoned. Fortunately, it appears that the proposal was rejected by the ANC...although the amnesty granted under the Further Indemnity Act remains in place.

These blanket amnesties in respect of human rights abuses by the state during the apartheid era, without any parallel obligation to disclose the nature of the "crimes" perpetrated, have grave implications for the prospects of national reconciliation. In particular, for the victims of these abuses of power, on whichever side of the political spectrum they may reside, the implication is that they may never have access to the information essential to their rehabilitation.

The prospect is that there will be no public or private acknowledgement of their past, let alone any capacity for redress at law. In the absence of any socially sanctioned forms of restitution, widespread resentment is likely to manifest itself in informal retribution at both an individual and a collective level, resulting in escalating rather than lessening violence under the new democratic dispensation.

It is impossible not to be struck by some of the absurd contradictions which are manifesting themselves in this country as it stumbles along the bumpy road towards transition.

On one hand, the highest court in the land has held that newspapers publishing allegations of Gen. Lothar Neethling's poisoning of anti-apartheid activists have the onus of proving the likely truth of these allegations. Yet there is no public right of access to the security police files (assuming these have not been destroyed) which may, in the public interest, have helped to resolve the issue either way.

On the other hand, an unauthorised biographer of Winnie Mandela seems to have been given free access to files of this very nature, despite the potential compromise to any rights of privacy.

The common issue here relates to what is to become of the mass of information that has been gathered by the "security" establishment over the years, much of which is likely to throw considerable light on the lives of many of apartheid's enemies, and which may well disclose criminal abuse of power by these authorities in the past.

It is essential that South Africans actively grapple with their past, for individual rehabilitation, as well as for the collective purpose of reconciliation. This could take various forms.

In post-Second World War Germany, the vehicle was highly public criminal prosecutions in the form of the Nuremberg trials. In more sensitive negotiated transitions such as in Argentina and Chile, the mechanism which accompanied the granting of amnesties was a judicial "truth commission" which sought to uncover the past without jeopardising the tenuous negotiated truce through the threat of prosecutions.

Yet recent media reports suggest that in Chile there is still growing popular displeasure over the failure to deal adequately with the large numbers of disappearances and unsolved murders which occurred under the Pinochet regime.

The most elaborate approach is that adopted in the new unified Germany. In this instance, extensive rights of public access have been granted to the records of the former state security service of the (East) German Democratic Republic - the Stasi archives.

Legislation passed in 1991 provided for the right of access to the Stasi files. The primary motivation behind the law was to ensure that "victims" of spying and secret information gathering were able to scrutinise the records which had been compiled about them. This was seen as essential to assisting in the rehabilitation and compensation claims of such victims.

However, Germany's 1991 Stasi Records Act went even further. It allowed public access to the files of the informers and spies themselves, or at least to information about who had been involved, either formally or informally, in providing information to the "security" establishment.

This meant public and private bodies could gain access to such information and this was seen as essential in "purifying" the post-unification administration by rooting out all the former spies and informers.

To this end, the German legislation effectively allowed for the investigation of a wide range of public officials as well as members of the legal profession, church employees, business executives or managers, party politicians, members of workers' councils and so on.

By March 1993, just 15 months after the passage of the Stasi Records Act, the federal authority administering the Act had received no fewer than 600 000 requests to inspect records and 1,25-million applications for investigations about whether relevant records existed.

The German experience is somewhat different to the South African case in that the process of transition was more akin to a conquest than a negotiated settlement. The bulk of the Stasi archive was captured intact - although burned out shredding machines and thousands of bags of paper were found in the basement of the Berlin building housing the records. Furthermore, the extent of the German Act does leave one wondering exactly where the national rehabilitation process ends, and where the administratively sanctioned purge begins.

In the context of a rather delicate negotiated process such as that in South Africa, where the future government will for the most part inherit intact the existing civil administration and policing personnel, perceptions of an impending purge are extremely threatened by democratic change. It therefore seems that the German experiment may go a little too far and could not appropriately be imposed on the South African situation.

Nonetheless, the alternative of a blanket amnesty is even more threatening to long-term prospects of stability and national reconciliation. The solution must surely lie somewhere in between, and the time is right for the Transitional Executive Council at least to begin to secure the survival of these records which could be vital to the rewriting of the recent history of our country, and to the rehabilitation of its victimised communities.

Graeme Simpson is a founder and former Executive Director of the Centre for the Study of Violence and Reconciliation.

In the Business Day, 22 December 1993.

© Centre for the Study of Violence and Reconciliation