In a landmark judgment handed down today the Constitutional Court upheld the rights of victims of apartheid era abuses, as well as the media and public, to speak the truth about crimes amnestied by the Truth and Reconciliation Commission (TRC).
The Court held that truth-telling was the moral base of the transition from the injustice of apartheid to democracy and constitutionalism. It held further that the TRC process, which was premised on the necessity of truth-telling in pursuit of national unity and reconciliation, could not operate so as to render the truth false.
The High Court and the Supreme Court of Appeal had earlier ruled that the Promotion of National Unity and Reconciliation Act (the TRC Act), which provides that a grant of amnesty expunges a conviction "for all purposes", meant that the criminal act amnestied did not occur. McBride, who had been convicted for murder following the bombing of a bar in the 1980s, was granted amnesty for his murder convictions. According to the lower courts this meant he "could no longer be considered to a criminal" and to call him a murderer is thus false.
The South African Coalition for Transitional Justice (SACTJ) supported two victims of apartheid atrocities, Joyce Mbizana and Mbasa Mxenge, to bring an amicus brief before the Constitutional Court. Family members of Mizana and Mxenge were murdered by the apartheid security police who were granted amnesty by the TRC's Amnesty Committee for such murders. They submitted that the ruling of the lower courts impaired their ability to speak freely about the crimes committed against their family members, and about the wrongdoers who received amnesty. They contended that freedom of expression is constitutive of dignity: to deny persons in their position the right to speak the truth without fear of being sued for defamation strips them of their dignity. They argued that the effect of amnesty could not alter the historical facts.
Further, Mbizana and Mxenge contended that individuals have a "right to truth", which is recognised as an emerging right in customary international law. They asserted that the constitutional protection of this right (and the ability to engage with the truth) emerges from the values of human dignity, equality, the rule of law, free expression and access to information.
The Constitutional Court held that full disclosure of the truth, as a means to pursue national transition and reconciliation, was the basis of the moral and operational structure of the TRC law. It held that the rulings of the lower courts were in conflict with the statute's context and historical setting, and at odds with one of the moral impulses of the reconciliation process itself. The Court stated that it "is hardly conceivable that its provisions could muzzle truth and render true statements about our history false".
Justice Edwin Cameron, writing on behalf of the majority, held that proscribing the truth would be antithetical to the adequate compilation of the collective memory of South Africa's past.
In particular, the Court recognized that family members have a right to describe, with truth and accuracy, the perpetrators of the gross wrongs inflicted on their loved ones. They were entitled, despite the amnesty granted, to continue to call the killing of their loved ones "murder", and those who perpetrated the killings "murderers".
The Court held that the process of reconciliation is still unfolding, and that the fragilities of its meaning cannot be prescribed by law. It noted that the best chance for successful reconciliation lies in fostering open public discussion and that public debate lies at the heart of participatory democracy.
The SACTJ welcomes this judgment for protecting the right of victims and the public to express the full truth about South Africa's past conflicts. The Constitutional Court has preserved the legacy of South Africa's groundbreaking truth and reconciliation process. It has upheld the principles underpinning the birth of our constitutional democracy, including truth, openness, accountability and the right to human dignity. It is an important milestone, not only for victims of South Africa's past conflicts, but also for victims of human rights atrocities worldwide.
The SACTJ comprises the Khulumani Support Group, Centre for the Study of Violence and Reconciliation, International Centre for Transitional Justice, South African History Archives, Human Rights Media Centre, Institute for Justice and Reconciliation and the Freedom of Expression Institute. Joyce Mbizana and Mbasa Mxenge were represented by Webber Wentzel Attorneys.