Truth Commission selection process was not soft
Paul van Zyl and Patrick Kelly
Richard Calland's views on the selection process for the Truth and Reconciliation Commission (Business Day, November 16) cannot go unchallenged. His criticisms of the process do it an injustice and could serve to prematurely discredit what we believe to be a valuable model for the future.
Calland questions the "conceptual underpinnings of the interviews" and argues that, unlike the Judicial Services Commission (JSC), the role of the panel which interviewed prospective candidates is not "clear cut". He complains that the "panel has no written document to guide them" and implies the criteria it applied were "plucked from the air".
Calland's comparison with the JSC is not useful. The JSC was interviewing candidates for the Constitutional Court. Although we have not had a previous Constitutional Court to use as a benchmark to evaluate potential candidates, it is relatively easy to agree on the skills and qualities one is looking for in a judge. Given this agreement, it is then straightforward to draw up a fixed set of criteria according to which each candidate is assessed.
Selecting truth commissioners is a profoundly different enterprise. It is difficult to construct the ideal truth commissioner. Should one prioritise impartiality above all else or should one rather place a premium on a person's commitment to human rights? Given that the legislation precludes the appointment of people with a high political profile, how does one define this term?
How does one ensure that the commission as a whole enjoys the greatest possible trust across the broadest spectrum of people? How does one deal with the historical fact that the vast majority of people who campaigned and suffered for the cause of human rights were associated, or seen to be associated, with only one side of the South African conflict?
These are not easy questions to answer and the panel chose (wisely) not to generate solutions mechanically and then to commit them to a "written document" in the form of narrow and specific criteria. Instead, the panel maintained an open mind and invited candidates to offer their views on how best to constitute the commission.
In so doing, the panel was given the opportunity to engage in an intelligent and enriching dialogue, not only about the substantive issues entailed in dealing with the past, but also about the composition of the body that will spearhead this process. By the end of the 49 interviews, the panel had gained insights which allowed them to discuss the formulation of the shortlist in a subtle and sophisticated manner. This is far preferable to a process of "appointment by checklist".
Calland's second objection is that the questions put to candidates were "rarely anything other than general and/or benign".
In this respect he has mistaken form for content. It is true that the panel did not adopt a style of questioning similar to Judge Mahomed's grilling of the candidates for the SABC board. In fact, they consciously chose not to adopt an inquisitorial approach to the hearings. This allowed candidates to engage with the substance of questions without having to resort to banter or point-scoring.
However, the fact that the hearings were conducted in a cordial and informal manner did not mean that the questions were "soft" or innocuous. Virtually all candidates were asked: "If the Truth and Reconciliation Commission uncovers information which would lead to a rebellion or a collapse of the government of national unity, would you release it?"" A state prosecutor was asked: "Do you think a person whom you prosecuted and had convicted would feel comfortable testifying before the commission if you were on it?"
The following question was put to an exile: "There is an argument that exiles enriched themselves and acquired degrees overseas while others who remained in South Africa engaged in the struggle at great personal cost. How would you respond to that?" A theologian was asked: "How do you justify your church's support of apartheid?" The fact that these questions were asked in a gentle manner in a comfortable setting does not make them any less probing.
Calland's final criticism is in our opinion the most problematic. He contends that the process was "fundamentally flawed" because the selection panel was not compelled to release reasons for their decisions and because the process was not open to greater public scrutiny.
On the first score, Calland is off target. The letter containing the shortlist which the panel sent to President Mandela sets out the general approach and principles which they followed during the appointment process. It does not set out individual reasons for the selection of each candidate, but it is questionable how useful these would be anyway.
Which brings us to the contention that the process should be open to "greater public scrutiny". It is hard to imagine a more open appointment process. The public was invited to submit names for consideration for appointment to the commission. An initial shortlist was published, giving anyone the opportunity to provide the panel with comment on any of the candidates prior to their public interview.
The interviews were open, which provided organisations, lobby groups and the media with the opportunity to hear candidates' views and another chance to comment. A final shortlist has now been presented to President Mandela which yet again gives various interest groups a chance to submit their views.
If Calland is suggesting that the media or the public should have been able to attend the meeting in which the panel selected the 25 candidates for presentation to President Mandela, we submit that this would have been profoundly counter-productive. This kind of scrutiny politicises a process, making it difficult for panellists to abandon candidates which their party endorses, but which they no longer support after having had the benefit of discussion with other panellists.
It also inhibits frank discussion of the flaws of certain candidates for fear that this criticism may come to their attention. If one is opposed to crude party-political horse-trading, one should realise that an unqualified commitment to "openness" can often impede rational decision-making rather than support it.
In conclusion, the truth commission selection process offers an interesting and innovative model which should be considered for the future. It offered the opportunity for full public participation and comment at virtually every point in the process. Most importantly, the selection panel was composed of representatives of both political parties and civil society.
The presence of the latter meant that the capacity for politicians to engage in horse-trading was limited, while the presence of the former meant that a shortlist could be formulated which enjoyed the trust of a broad cross-section of society.
There is one final hurdle that the selection process must pass. President Mandela and the Cabinet must choose between 11 and 17 commissioners from the shortlist of 25 which was presented to them. There is talk that the President is considering appointing commissioners from outside the list presented to him. Only then, in Calland's words, will the truth commission process have "flattered to deceive".
Paul van Zyl is a former Researcher at the Centre for the Study of Violence and Reconciliation.
Patrick Kelly is the former National Director of the Human Rights Committee.
In the Business Day, 29 November 1995.
© Centre for the Study of Violence and Reconciliation
