Hamber, B. & Kibble, S. (1999). From Truth to Transformation: The Truth and Reconciliation Commission in South Africa. Catholic Institute for International Relations Report, February.

 

Brandon Hamber & Steve Kibble

Brandon Hamber is an independent consultant.

Steve Kibble is the Southern Africa Policy Officer in the International Policy Department at the Catholic Institute for International Relations.

Introduction

All that a truth commission can achieve is to reduce the number of lies that can be circulated unchallenged in public discourse. In Argentina, its work has made it impossible to claim, for example, that the military did not throw half-dead victims in the sea from helicopters. In Chile, it is no longer permissible to assert in public that the Pinochet regime did not dispatch thousands of entirely innocent people.1

The South African Truth and Reconciliation Commission (TRC) has now almost completed its work. This report questions whether people's expectations of the process have been met, and tries to provide a framework in which to gauge the success or failure of the Commission. To help understand these arguments, the report first outlines the background behind truth commissions and how they operate. It examines the work of the South African TRC and some of the debates surrounding it, and looks in particular at the role the TRC has played in the process of democratisation and transformation in South Africa.

The report draws on the proceedings of a conference organised by the Centre for the Study of Violence and Reconciliation (CSVR) in South Africa in April 1998. The purpose of the conference, 'From Truth to Transformation', was to evaluate the work of the TRC, and to consider future challenges, especially those confronting non-governmental organisations that would be working on reconciliation once the TRC had been wound up. Individuals from civil society organisations, both in South Africa and elsewhere, took part in the debate people involved in the work of the TRC and others who had a primary or supporting role in the testimony put before it.

As well as using material from the CSVR conference, this report looks at the TRC in the context of other truth and reconciliation processes in countries in political transition. The paper summarises the key contextual ideas and arguments. It does not seek to provide a commentary on the day-to-day work of South Africa's TRC or the cases heard before it.2

Truth Commissions: A background

To many, notably those in the leadership in the government and security forces in the 1980s, the conclusion that the state sanctioned murder may and probably will be an unpalatable assertion. It is also probably not what the Commission expected to find when it started its work two years ago. It is, however, a 'truth' to which it has been drawn by the evidence.3
The International Context

Numerous transitions to democracy in recent decades have seen newly-installed governments faced with the question of how to deal with human rights violations committed by previous regimes and with the legacy of political violence. Governments' responses have ranged from profound unwillingness to call to account the authors of past human rights violations, to purges, prosecutions of human rights violators, and the setting up of processes which we refer to broadly as truth commissions.

Reluctance to confront the past

Most typically, countries do little about dealing with politically motivated atrocities of the past. In some countries - Namibia, Mozambique and Angola, for example - there appears to be no desire at government level to confront the past, and strong government resistance to investigations or calls for them. In Zimbabwe the government itself has investigated human rights violations but has not published its findings.

Purges

By contrast, some countries have undergone what have commonly been termed 'lustrations',4 or purges. Bulgaria's Panev Law, for example, adopted in December 1992, requires individuals holding leading positions in the state to provide a written statement of past communist activities. As a result, 9,000 enterprise managers, 14,000 officers of the security agency, 90 per cent of government administrators and a third of all diplomats have been removed for past communist activity or connections.5

Prosecutions

In other countries former human rights violators have been prosecuted. In Germany the newly unified state has tried generals and politicians of the former regime for killing people attempting to escape across the Berlin Wall. The International Tribunal for the Former Yugoslavia in the Hague has been listening to testimony about events in the recent Balkan wars.

International non-governmental organisations (INGOs) have assisted in the prosecution of people responsible for war crimes in Rwanda. The International Tribunal for Rwanda sentenced Jean-Paul Akayezu, mayor of Taba in Gitarama province, to life imprisonment on 2 October 1998 for genocide-related crimes committed in 1994.

In Ethiopia the surviving members of the 1974 government known as the 'Dergue' (Provisional Military Administrative Council) went on trial in 1994 following the defeat of the Mengistu Haile-Mariam government. The trial was continuing at the time this report was written.

Nonetheless, hopes that trials might establish the truth about political violence of the past have not always been fulfilled. Instead, show-trials that reveal few of the facts are often all that transpire, although there have been some commissions of inquiry.

Truth commissions

As a result, since the early 1980s the concept of the truth commission has gained prominence as a mechanism for elucidating history and addressing human rights violations. Argentina's National Commission on the Disappearance of Persons 1983-84 began the process, and the 1993 report of the UN Commission on the Truth in El Salvador, From Madness to Hope, sharpened the focus on truth recovery processes. There have been at least 15 truth commissions since 1971.6

The South African TRC is a sophisticated truth recovery process. It began its first hearings in April 1996 in East London in South Africa's Eastern Cape chosen because it was the site of intense repression in the 1970s and 1980s. It was also the home of Steve Biko who died in police detention in 1977.7 The TRC has attracted extensive national and international attention. This is partly because of its scale, reflected in the sheer number of cases it dealt with and the resources at the commission's disposal (see Amnesty Applications. It is also partly a reflection of the high international profile of the struggle against apartheid. But more importantly perhaps, the TRC has also thrown into sharp relief the widely divergent issues and conflicting interests that require balancing in a process of political transformation. It is the first commission to deal practically with amnesty as a compromise between the polar opposites of blanket amnesty and judicial prosecution. In the words of the TRC's chair Archbishop Desmond Tutu, the commission represents a compromise 'between those who want amnesia and those who want retribution'. It has also come under the international spotlight because it has tried to learn and incorporate lessons from the strengths and weaknesses of other truth commissions.

What is a Truth Commission?

Although many truth commissions have shared certain characteristics, there is no commonly accepted definition of what a truth commission is or what it should do. Indeed, the role, mandate and impact of truth commissions are shaped by the balance of political forces at the time they are established. A truth commission is typically a body set up at a time of political transition to investigate past violations of human rights in a particular country over a defined period. Although legislatures or non-governmental organisations (NGOs) could initiate them, it is usually the executive arm of a new government that does so. Occasionally, as in the case of El Salvador, INGOs have set them up and run them.

The mandates for truth commissions vary. Some focus exclusively on one type of violation (such as disappearances), whereas others have had broader remits allowing the commissions themselves to shape their area of investigation. Truth commissions are usually distinguished both from the normal legal process (where individuals are prosecuted for abuses) and from commissions of inquiry (which focus on a specific incident or set of events). There may, however, be overlaps of functions and terminology. Most truth commissions share certain common characteristics; many find their work shaped or constrained by the political environment at the time they are established.

Common characteristics

Hayner argues that there are four elements common to most truth commissions:

  • their focus is on the past
  • their aim is to provide a comprehensive picture of human rights abuses and of violations of international law over a period of time, and not simply to focus on one event
  • they exist for a limited period of time, usually winding up when their report is complete
  • they have authority to access information and demand protection; thus they can examine sensitive issues and maximise the impact of their report.8

Generally, truth commissions have not prosecuted individuals, although some have handed over names for the normal judicial process to do so. Nevertheless, truth commissions are not precluded by definition from conducting prosecutions; they could have such a remit, just as South Africa's TRC was mandated to grant amnesty.

Most commissions also have an important function in terms of making a public acknowledgement of the truth. Often one of their aims is to give the country a broad and reliable picture of past abuses.

Political constraints

The political juncture at which a truth commission is established always shapes its mandate and work. Periods of political transition rarely involve a clean break from the old regime and transfer of power to the new. A negotiated settlement will often see considerable political and economic power still resting with the alleged perpetrators of abuse. This can have a direct bearing on the investigations carried out by truth commissions.

Where perpetrators are granted amnesty, victims or survivors can be asked, in effect, to give up their rights to justice or compensation in exchange for the truth. Indeed, most amnesties have been granted without any conditions being placed on the perpetrator. Although it is often argued that such unconditional 'forgiveness' is necessary to ensure peace, Hayner points out that this tends to be the perpetrators' argument.9 It is also an argument used by new governments seeking political stability. Again, although it can be argued that political stability is in the interest of peace, more often than not a new government is also interested in consolidating its own power.

Thus, in many countries the granting of amnesty has not reflected a search for peace. Rather, it has been motivated by political elites' desires to escape accountability for past human rights abuses, is born from a long history of military power, and takes place in the vacuum left by a dysfunctional judicial system.

In South Africa there has been an attempt to ensure that perpetrators must give something in exchange for amnesty. Amnesty was conditional, it had to be applied for and has not been granted unquestioningly. However, the South African government has also resorted to justifying amnesty by saying that it is in the interests of maintaining the peace. Significantly, the government has not asked the survivors of the political violence whether they felt the amnesty was a just and necessary step.

Why Focus on the Past?

Nearly all truth commissions have emerged from political transitions as mechanisms for demonstrating a break from human rights violations of the past, and engendering political legitimacy.

There can, however, be widely divergent reasons for setting up a truth commission. These may include honest efforts to uncover and acknowledge the truth, and to prevent human rights violations occurring in the future. Yet they can also be manipulated as public relations exercises, covering rather than revealing the truth.

Truth commissions face a number of difficulties. First, they are rarely democratically accountable. They tend to have been established as part of a negotiated settlement, and such agreements are usually brokered by political elites. Second, their logistical capacity is often inadequate, and they operate within politically determined parameters for example, whether they 'name names' will tend to be influenced by political circumstances. As a result, truth commissions rarely live up to everyone's expectations.

Establishing and acknowledging the truth

The most obvious reason for setting up a truth commission is to establish an accurate historical record. From this basis a process of learning from the past may be promoted. In theory the process re-establishes the rule of law in emerging democracies and prevents future violations.

From the perspective of the survivor of political violence, it is argued that it is healthier, psychologically, to uncover the past than to leave it untouched.

It is also argued that revealing the truth is an important step towards reconciling old enemies, and that truth commissions can therefore play important roles in building reconciliation. Through public acknowledgement, in a managed forum, they can lay the foundations for sustainable conflict resolution.

Equally important is the ability of truth commissions to provide official and public acknowledgement of facts about crimes that may have been known by local people for many years but have never been officially recognised. The capacity of a truth commission to break the culture of silence that prevails under authoritarian rule is therefore another key feature.

However, there is a difference between 'acknowledging' and 'finding' the truth. There is increasing international pressure to ensure that survivors realise their right to the truth, irrespective of political context. Where this has occurred, and people have, for example, found the remains of the 'disappeared' family members (such as in Guatemala), truth processes have been hailed as enormous successes. Yet to describe such processes as a straightforward 'fact-finding' exercise can be misleading: often the crimes and their perpetrators are already well known. It is official acknowledgement of the facts that can make them an important part of the healing process.10

Truth commissions and official inquiries as public relations exercises

Truth commissions can also be set up as a cynical exercise by governments to persuade the international community that something is being done about violations in their country, when in fact the reverse is true, as in 1970s Uganda under President Idi Amin.11 Similarly, in South Africa, the Harms Commission of Enquiry, set up by the ruling National Party in the early 1990s, signally failed to uncover the hit-squad activity it was mandated to investigate. Harms was widely seen as a whitewash because the activities of hit squads were subsequently well documented and some witnesses admitted to lying to the commission of inquiry.

Even so, most truth commissions have emerged during periods of political transition as mechanisms for demonstrating a genuine change in human rights practice, promoting respect for the law, or legitimising the new regime or for a combination of these reasons.

Preventing future violations

Most truth commissions are intended to prevent future violations. To this end, most commissions in their reports make suggestions for reform of the police, legal practices, measures for reparation and reconciliation, etc. Although these recommendations are usually not legally binding, they provide a focus for civil society lobbying on these issues.

Clearly, truth commissions cannot be certain of preventing the recurrence of human rights abuses. The risk of failure - if this is their aim - is highest when truth commissions have been tied into (or limited by) amnesty provisions that ensure former abusers retain their positions in the security apparatus or military.

As for effectiveness, the recommendations of truth commissions in Chile and Argentina have been followed up, and in most cases it could be argued that human rights awareness has been increased although abuses have not actually stopped.

Lack of democratic accountability

Truth commissions are rarely subject to democratic accountability. They and amnesties are generally championed at government level rather than being brought about through popular demand. This was certainly the case in South Africa.

Yet South Africa is the only country to have allowed some public and civil society debate over the terms and scope of the truth commission.12 This debate led to its proceedings being held in public, rather than in camera, as was first proposed by the political parties in the negotiations process, and initially by the new government (see box: The Media). Human rights organisations tend to call for public hearings in the interest of impartiality, although some consider that publication of the findings, rather than public hearings per se, is the key. Openness is sometimes thought to discourage witnesses from giving evidence, for fear of reprisals. One view is that in certain cases confidentiality is necessary in order to ensure that a commission can carry out its work (as was the case in El Salvador), or to prevent governments running show-trials of their enemies. The South African TRC emphasised the public process, but also had powers to hold hearings in camera and to provide formal protection to witnesses.

Human rights activists have called for popular referenda to approve governmental human rights work and for commissions to have popularly elected representatives. This is thought to be essential, since survivors of violence are often asked to give up their 'rights' to justice in favour of wider goals such as reconciliation, stability, and (possibly) transformation - goals which benefit the majority.

Usually, however, constraints of time and the threat of political instability make popular input unlikely. The voice of the people in general, and of survivors and victims' families in particular, is seldom heard directly until the truth commission process gets underway, by which time the rules of engagement are set.

The Media

'A distinctive feature of the Commission was its openness to public participation and scrutiny. This enabled it to reach out on a daily basis to large numbers of people inside and outside South Africa, and to confront them with vivid images on their television screens or on the front pages of their newspapers. People saw, for example, a former security police officer demonstrating his torture techniques. They saw weeping men and women asking for the truth about their missing loved ones. The media also helped generate public debate on central aspects of South Africa's past and to raise the level of historical awareness. The issues that emerged as a consequence helped the nation to focus on values central to a healthy democracy: transparency, public debate, public participation and criticism'.

'The sword wielded by the media is, however, double-edged. The fact that much of the Commission's work was transmitted by the media meant that public perceptions were formed by what people saw on television, heard on the radio or read in the newspapers. Thus, while the 'soundbites', headlines and photographs of what happened in the public domain contributed significantly to the work of the Commission, they also had the effect of making aspects of its work more vulnerable to criticism. For example, the Commission was accused of accepting untested allegations, primarily because the activities that led to its findings (investigation, research, inquiries in closed hearings and the actual decision-making process by commissioners) were less visible. Similarly, the first steps towards reconciliation, such as private encounters between victims and perpetrators or pre- and post-hearing community visits by commissioners, usually took place out of sight of the media'.13

Naming names

Should truth commissions 'name names' - identify perpetrators of human rights violations? Either side of the debate can be defended on the basis of human rights principles. Due process of law requires that individuals receive fair treatment and be allowed to defend themselves before being pronounced guilty.14 On the other hand, in the effort to arrive at the truth, a human rights framework requires that people responsible for human rights abuses be named when there is clear evidence of their guilt - such as eye-witnesses or corroborative evidence, or an admission of guilt.

The decision about whether to name people has typically rested with commissioners. Commissions which have named names were those in Chad, El Salvador, Rwanda and South Africa (although the ANC's second report into abuses in its camps on foreign soil would probably qualify as a commission of inquiry rather than a truth commission). The official Guatemalan truth commission15 cannot name names, and the well-known commissions in Argentina and Chile did not. The commission in El Salvador stated that it named names because it wanted to establish the whole truth; it recommended that named individuals, military or civilian, be removed from their posts and be barred from serving in any public position for 10 years (or permanently in the case of those holding a military or security position). In Rwanda individuals were removed from public positions, although usually on pretexts other than that of being named in the truth commission's report. These processes are similar to 'lustrations', although merely being associated with a political ideal (through membership of the Communist Party, for example), rather than substantial evidence of abuse, might lead to an individual being 'purged'.

The political context

Truth commissions tend to face political opposition, and in some cases active obstruction, from actors who have managed to retain military, economic or political power from the old regime. They are peculiarly vulnerable to politically-imposed constraints. All aspects of their work can be determined by the political context: their structure; support; mandate; financial and personnel resources; access to information; popular participation; their ability to challenge and investigate powerful groups such as the military; their ability to examine sensitive events; naming names; whether their hearings are public or closed; and the strength and autonomy of their final report.

The terms of a commission's work need to be sufficiently broad to allow investigation of all human rights abuses, with considerable autonomy for the commission to determine the most appropriate practices and cases. El Salvador and South Africa had flexible mandates16 that were used to gain a greater picture of the truth than in Uruguay, Argentina, Chad or Chile. Chile and Argentina, for example, focused on 'disappearances' only.

A common technical problem is that too little time is allowed to work through the volume of material. This was apparent in South Africa, and the current Guatemalan commission has been criticised for having only a six-month mandate to investigate a war that went on for 36 years. There may be a shortage of financial resources, often compounded by inadequate support from the government or other powerful actors. For example, a shortage of basic materials such as stationery and transport saw Uganda's Commission of Inquiry into Violations of Human Rights (established under the government of President Museveni in 1986) grind to a halt.

What role is there for a truth commission?

Establishing a truth commission can be, in theory, part of a broad process of reconstruction and transformation, moving a country towards peace, reconciliation, and the initiation of a human rights culture. It is only one part of that process: other institutional changes are necessary (such as reform of political and military bodies), as well as government action in promoting peace, reconciliation and justice.

So what might be the role of a truth commission? They can promote debate on the past and future of a country. They can help bring human rights abuses to an end and set in motion the creation of a culture of respect and protection of human rights. Truth commissions can provide some comfort for survivors, and can be linked to establishing effective reparations. They can also help produce a balanced historical record.

In reality, however, commissions have rarely had all the positive impacts that proponents claim. Most have been unable to deal effectively with the full consequences of extensive political violence. In most countries where truth commissions have been established, the number of unsolved cases of human rights violations matches the new facts uncovered. In many instances, truth commissions have issued recommendations for reform that have never been implemented.

Truth Commissions and Justice

There is considerable international debate over the meaning of terms integral to TRCs: justice, reconciliation and truth, and what balance is best achieved between them.17 The different interpretations offered would lead to radically different post-transition outcomes.

Truth, justice, mercy and peace

Reconciliation, according to the political philosopher John Paul Lederach, occurs in the space occupied by four concepts that 'stand in paradoxical tension with each other': truth, mercy, peace and justice.18 He writes:

Truth is the longing for acknowledgement of wrong and the validation of painful loss and experiences, but it is coupled with Mercy which articulates the need for acceptance, letting go, and a new beginning. Justice represents the search for individual and group rights, for social restructuring and restitution, but it is linked with Peace which underscores the need for interdependence, well-being and security.19

Andries Odendaal, a South African historian and peace researcher, believes in balancing truth, mercy, peace and justice. He argues that there is a need for truth against the background of the lies and distortions of apartheid, but that revealing the truth must avoid forms of retribution and revenge that would damage peace. Archbishop Tutu put it more apocalyptically shortly before the TRC hearings began when he said that if justice alone were allowed to take its course, the country would be reduced to ashes.20

Odendaal suggests that justice contains both the notions of restitution and retribution. South Africa's TRC process, in order to maintain a balance, has privileged restitution above retribution, although stopping short of offering a general amnesty. Had a general amnesty been granted, the process would depend on mercy alone rather than maintaining the balance described by Lederach.

Perspectives on justice

Others have put it in different ways. In terms of the balance between impunity and justice, the Chilean TRC reported that people's responses to justice determines how they look at ideas of impunity and amnesty. There are at least three possible perspectives on justice:

  • First, the Western judicial system which has more to do with punishment than justice. However, for many, it has little to do with justice either. In an English or US court of law for example, establishing guilt or innocence and deciding punishment are seen as more important than establishing the truth. The victims of crimes tend to have little say in the process, other than through a civil claim (which can be prohibitively costly).

  • Second, that of 'justice after transition'. This says that pardoning selected (or all) categories of perpetrators is defensible for the sake of establishing the truth, knowledge which supposedly provides some consolation for victims/survivors. This is, in the words of José‚ Zalaquett, 'Justice to the extent possible'.21

  • Third, that which has been used to confront teenage crime in New Zealand and the United Kingdom, known as 'restorative' justice. This puts reconciliation rather than punishment at the heart of the process. Restorative justice has evolved from the concept of healing the community rather than punishing the individual perpetrator. By extension it looks to the future rather than the past, to seek a way for the perpetrator to make personal restitution or change. Supporters claim this to be a better form of justice than retributive justice, since it gives central importance to the victims, rather than rendering them spectators of alienating court processes. Similarly, offenders are brought face to face with the consequences of their actions and have to answer for them in the community rather than in prison. It is argued that this is a community-centred approach and therefore more democratic.

    The South African TRC has been flexible in its approach to justice, but has operated mainly on the basis of 'justice after transition' and 'restorative' justice.

The South African Truth and Reconciliation Commission

Despite the unique nature of apartheid, South Africa shares many characteristics with other countries attempting to deal with the crimes of the past. Most handovers of power in emerging democracies in the 1990s contain an element of negotiation. The 'losers' have often retained the ability to overthrow, destabilise or possibly embarrass the new regime if certain demands are not met.

In South Africa, the balance of forces at the time of transition played a significant role in shaping the reconciliation process. It has been argued that, given the nature of the negotiated settlement, it was impossible to undertake large-scale prosecutions. Amnesty was an essential and inescapable precondition to the negotiated peace settlement. In turn, the amnesty 'deal' shaped and gave birth to the Truth and Reconciliation Commission. The African National Congress (ANC) had insufficient power at the negotiating table to ensure that perpetrators would be prosecuted, but had enough power to demand truth in exchange for amnesty.22 This exchange, along with giving victims23 space to tell their stories and the granting of reparations, is the essence of the South African TRC.

Constitutional Remit of the TRC

The foundation of the TRC lies in the interim constitution of South Africa that made provision, as part of the negotiated settlement, for the granting of amnesty. The interim constitution noted that:

In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past. To this end, Parliament under this Constitution shall adopt a law determining a firm cut-off date which shall be a date after 8 October 1990 and before 6 December 1993, and providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed.

This was carried over and finalised in the final Constitution of 1995.24, 25

The full remit of the work of the TRC was finalised by an Act of Parliament known as the Promotion of National Unity and Reconciliation Act, Number 34 of 1995, also referred to here as the TRC Act.26 The TRC began operating in December 1995, with the broad aims of promoting national unity and reconciliation in a spirit of understanding that would transcend the conflicts and divisions of the past. To achieve this the TRC would give voice to the experiences of victims, witnesses and perpetrators of apartheid-era violence so as to provide as complete a picture as possible of the causes, nature and extent of past abuses that occurred between 1 March 1960 and 10 May 1994.27

The more specific aims of recording the testimony of victims, granting reparations and amnesty and the stipulations of the final report are embodied in the workings of the committees of the TRC.

TRC Committees

The TRC has three committees dealing with human rights violations, amnesty, and reparations and rehabilitation.

Human Rights Violations Committee28

The Human Rights Violations Committee had the express purpose of facilitating a truth recovery process. It was to do this by taking statements from survivors and families of victims of gross violations of human rights.29 Vol. 1 (4) 42 of the TRC Report quotes the Act establishing it as defining 'gross violation of human rights' to mean:

the violation of human rights through - (a) the killing, abduction, torture or severe ill-treatment of any person; or (b) any attempt, conspiracy, incitement, instigation, command or procurement to commit an act referred to in paragraph (a), which emanated from conflicts of the past and which was committed during the period 1 March 1960 to 10 May 1994 within or outside the Republic, and the commission of which was advised, planned, directed, commanded or ordered, by any person acting with a political motive (section 1(1)(ix)).30

So-called representative and demonstrative cases were chosen from among the statements taken31 in order to be presented at public hearings.32 At these hearings, survivors and families of victims told how they had been victimised. More than 50 public hearings were held, spanning a total of 244 days for the so-called representative cases.33 The TRC Report (Vol. 2 (1) 2 states that it received more than 21,000 statements from individuals alleging that they were victims of human rights abuses and 7,124 from people requesting amnesty for acts they committed, authorised or failed to prevent. An estimated less than 10 per cent of the 21,000 statements taken were heard by the commissioners.34 The others were processed, and in each case either the TRC recommended whether the individual should receive reparations, and/ or investigations were initiated.

By the end of the Commission's lifespan, 21,000 people had come forward, women and men, old and young, and told the Commission about nearly 38,000 gross violations of human rights. In the process, the broad outlines of the past emerged with undeniable clarity. Ninety percent of those who came forward were black. Most of them were women. The greatest number of these approached the Commission on behalf of dead men to whom they were related.35
Amnesty Committee

As part of its reconciliatory function, the TRC was made responsible for the granting of amnesty. The Amnesty Committee was put in charge of facilitating this process and heard perpetrators' confessions and amnesty applications. Some of the conditions for the granting of amnesty were fixed and others were interpretative. In terms of fixed criteria, the offence for which amnesty was sought must have been committed between 1 March 1960 and 10 May 1994. In addition, the application had to be registered before 30 September 1997. The remainder of the criteria were largely open to the interpretation of the TRC Act by the Amnesty Committee.

Amnesty was to be granted where applicants made full disclosure of all relevant facts and only for acts 'associated with a political objective committed in the course of the conflicts of the past'.36 The individual must not have been acting on his or her own, or for private gain, or through personal malice, ill-will or spite. Rather, individuals must have been members of a publicly-known political party or an employee of the state who 'on reasonable grounds believed that he or she was acting in the course and scope of his or her express or implied authority'.37

The TRC Act also considers the definition of a political objective. The motive, context, gravity of the act, whether the target was public or private, whether the applicant acted on orders, and whether the act was proportionate to the political goal38 had to be considered in conjunction with the other criteria (such as full disclosure). In effect, this means that amnesty is not automatic in South Africa.39 However, perpetrators of gross violations of human rights who met the TRC's criteria for amnesty were to be immune from prosecution and all criminal and civil liability. If the criteria for amnesty were met the TRC would substitute or trade retributive justice in exchange for the truth. A total of 7,124 people applied for amnesty. Only 'gross' violations required a public hearing, yet the TRC fell desperately behind in processing these applications and was unlikely to finish before mid 1999.

Amnesty Applications in Figures
Amnesty figures at June 1998
Total applications received 7,060
Total dealt with 4,696
Amnesty granted at hearings 75
Amnesty refused at hearings 61
Amnesty granted in chambers 50
Amnesty refused administratively 4,510
  • applicant denied guilt
385
  • act was for personal gain
320
  • no political objective
2,830
  • outside jurisdiction
410
  • outside cut-off date
565
Reparations and Rehabilitation Committee

The Reparations and Rehabilitations Committee was the only one of the three TRC committees not to hold public hearings. Rather, based on evidence presented to the TRC, it was, according to the TRC Act, to put forward recommendations for a comprehensive reparations policy for those found to be 'victims' (both direct or indirect, namely family members or dependants) of gross violations of human rights during the period that the TRC was investigating.

The government is responsible for implementing these recommendations and the reparations policy. Other recommendations aimed at preventing the recurrence of abuses were also to be legislated for in the TRC's final report. It was intended that the information made available through the TRC process would assist in providing an undisputed historical record and thorough documentation of violations. This, in theory, would enable the learning of lessons from the past and prevent violations occurring again. At the end of its full term of office in October 1998 the TRC submitted its findings to Parliament.

Why Amnesty in South Africa?

The most important difference between the South African Commission and others was that it was the first to be given the power to grant amnesty to individual perpetrators. No other state had combined this quasi-judicial power with the investigative tasks of a truth-seeking body. More typically, where amnesty was introduced to protect perpetrators from being prosecuted for the crimes of the past, the provision was broad and unconditional, with no requirement for individual application or confession of particular crimes. The South African format had the advantage that it elicited detailed accounts from perpetrators and institutions, unlike commissions elsewhere which have received very little cooperation from those responsible for past abuses.

Another significant difference can be found in the Commission's powers of subpoena, search and seizure, which are much stronger than those of other truth commissions. This has led to more thorough internal investigation and direct questioning of witnesses, including those who were implicated in violations and did not apply for amnesty. None of the Latin American commissions, for example, was granted the power to compel witnesses or perpetrators to come forward with evidence, and these commissions have had great difficulty in obtaining official written records from the government and the armed forces.40

Despite what the TRC wrote about its own powers, the amnesty provision has thwarted many of the formal judicial possibilities for prosecuting former abusers of human rights.41 In South Africa people responsible for politically motivated gross human rights violations who acknowledge fully their crimes will be allowed to go free. Victims are not allowed their standard constitutional rights to seek redress through civil court actions. Nor do perpetrators have to apologise for their actions, although some have. This, obviously, is a recipe for anger. However, in South Africa there are many arguments in favour of the amnesty-driven approach.

Arguments in favour of amnesty

South Africa's approach to its truth commission suggests it has opted for the ethics of responsibility (which take into account the predictable consequences of actions) rather than the ethics of conviction (where principles are adhered to regardless of the consequences). Proponents of the amnesty argue that it has to be understood in its political context and with regard to the long-term outcomes of the process.

  • Compromise dictated by balance of power

    Firstly, those arguing for the amnesty note that the South African TRC was set up within the conditions of the negotiated settlement: it is about 'justice within transitions' rather than justice per se. Except in tribunals, as at Nuremberg or Tokyo after the Second World War, it is probable that one of the preconditions for full retributive justice will not be met: the new government does not have unlimited power or resources to bring to justice all transgressors from the previous regime.

    The balance of forces, and the compromises made during peace negotiations, have dictated that for new governments in eastern Europe, Latin America and now South Africa criminal prosecution is not possible in most cases. The new governments have to attempt to balance amnesty, clemency and justice, since prosecuting and imprisoning the previous regime's servants and ministers could renew the conflict and have economic repercussions.

  • Insufficient evidence for criminal trials

    Secondly, there are questions over the capacity and effectiveness of the criminal trials system in South Africa. They would probably have been overstretched by large-scale trials. An example is the trial for murder in March 1996 of former defence minister Magnus Malan, with 19 others including two former chiefs of the South African Defence Force. They were charged with the murders of 13 people in KwaZulu/Natal in January 1987, when a hit-squad attack was carried out on the home of anti-apartheid activist Victor Ntuli. The case collapsed because of lack of evidence linking him directly to the killings.

    The TRC makes a similar point in relation to the trials of both Malan and Eugene de Kock:

    Trials of this nature are extremely time-consuming and expensive and require large teams of skilled and highly competent investigators. It took over eighteen months to secure a single conviction in the de Kock trial. A specialised investigative unit, consisting of over thirty detectives and six civilian analysts, spent more than nine months investigating and preparing the indictment in the Malan trial. The trial itself lasted a further nine months. Furthermore, since the accused in many of these trials were former state employees, the state was obliged to pay for the costs of their legal defence. In the Malan trial, these costs exceeded R12 million; and in the de Kock trial, the taxpayer had to pay more than R5 million. These figures do not include the costs of the teams of investigators and prosecutors, nor do they reflect the costs of supporting large numbers of witnesses, some of them placed in expensive witness protection programmes. Despite this massive expenditure of time and money, the former General Malan was found not guilty, although numerous allegations continue to be made against him. The costly and time-consuming Goniwe inquest also failed to answer the numerous questions concerning the death of the 'Cradock Four'. Judicial inquiries into politically-sensitive matters rarely satisfy the need for truth and closure. As such, they should not necessarily be seen as superior alternatives to the Commission.42

    Criminal justice usually works best where an individual, or a small number of individuals, can be shown to be guilty on the basis of the interaction of criminal motivation and actions. When these conditions cannot be met 'beyond reasonable doubt', then a not-guilty verdict has to be brought in. Paradoxically, the collapse of the Malan case was a set-back both to those wanting to hear the truth and those wishing to punish individuals perceived as embodying the apartheid system. The case strengthened the hand of those arguing that criminal trials are inappropriate for the fulfilment of either of these objectives.

    However, for every case where the criminal justice system failed, another case has been successful. Of note was the prosecution of Ferdi Barnard for the murder of David Webster and the numerous convictions of Eugene de Kock. In both of these cases some version of truth has been established, notwithstanding the indemnities granted to many state witnesses to ensure prosecution, and the costs.

    Nonetheless, it would be difficult for the courts to discover what happened in many cases of human rights violations: some of the violations occurred many years ago, and since 1990 a great deal of documentary evidence has been destroyed. Exchanging amnesty for truth probably offers the best chance of discovering the truth. In addition, in South Africa few people would have access to formal justice. The TRC provides potential access both to some form of 'truth' and to some form of justice. Proponents of the TRC argue that justice and amnesty are complementary. This is partly because the publication of perpetrators' names is akin to shaming the offenders and making them publicly accountable. Furthermore, alleged perpetrators could be prosecuted if they did not apply for amnesty. Indeed in February 1999 Bulelani Ngcuka, the national director of prosecutions, established a special unit to coordinate the trials arising from failed amnesty applications. This followed the failed amnesty applications from four policemen relating to the death in custody of Steve Biko.

  • Looking to a better future

    A third argument for the granting of amnesty is based on the assumption that the more peaceful the transition, the sooner social inequities can be addressed. The pursuit of retributive justice against the old regime might jeopardise peace and therefore long-term political and socio-economic justice.

    Apartheid was a system of gross racist human rights violations such as the infamous Bantu education laws, pass laws, restricted adult suffrage and socio-economic inequality whose legacy still shapes the lives of the black majority in South Africa. The amnesty deal means that instead of prosecuting a few, the TRC aims to establish the truth about the systemic oppression. The TRC mandate is to provide the historical background, to set individual violations within that context and to give a voice to certain survivors or their families. Proponents of the TRC argue that giving up retributive justice rights in the short term will help to institutionalise a culture of human rights where better socio-economic rights, in the absence of ongoing conflict, can be achieved in the future.

    The TRC itself argues that:

    Disclosures made during the amnesty process, together with information emerging at hearings, in victim statements and during investigations, contributed significantly to the Commission's understanding of the broad pattern of events during the thirty-four year mandate period. They also assisted the Commission in its analysis of key perpetrator groupings and institutional responsibility, and in the making of findings on the root causes of gross violations of human rights committed during the conflicts of the past. These insights provided the basis on which recommendations could be made aimed both at helping prevent future human rights violations and complementing the necessarily narrower focus of formal trials.

    A further limitation of the formal justice system emerged in relation to the need to make recommendations to help prevent future human rights abuse. A functioning and effective justice system is, of course, crucially important in this regard reinforcing the rule of law, vindicating victims and so on. However, even a justice system functioning at its best level cannot provide all the answers. Prosecution and punishment are responses to abuses that have already taken place. While they may act as a deterrent, other initiatives are required to prevent abuses taking place. The Commission's recommendations on issues such as human rights training for the security forces and human rights education in schools and universities were crucial in this regard. For example, the implementation of the Commission's recommendations on the reform of the security forces may help to restore trust between the South African Police Service (SAPS) and the majority of South Africans. Such trust is essential if the security forces are to act as guarantors of human rights for all South Africans.

    Thus, although the Commission did not offer retributive justice, placing the amnesty process within a broader framework is likely to contribute to formal justice in the long term. Instead of trading justice for truth, amnesty might, in the end, prove to have been a more profitable option than the stark choice between truth and trials. In societies in transition, at least truth must be viewed as an important element in restoring the rule of the law.43

    The counterview is that it is those who suffered the most - the direct subjects of human rights abuses - who are being asked to give up retributive justice for the sake of a majority who did not suffer so directly. The survivors are not allowed to mount civil claims. Even without the amnesty process, the TRC could still have heard victims' stories.

Reconciling truth, justice and transformation

There are inherent conflicts between reconciliation and the process of truth and justice, which can make for a painful transformation process. This is noted in the TRC final report:

The task assigned to the Commission proved to be riddled with tensions. For many, truth and reconciliation seemed separated by a gulf rather than a bridge. Moreover, in the process of implementing its obligation to consider amnesty for perpetrators (as required by the interim Constitution), the concept of justice also came under constant scrutiny. 'We've heard the truth. There is even talk about reconciliation. But where's the justice?' was a common refrain.44

This section looks at these issues and the effect of the TRC's work upon South African survivors.45

Limits of TRC reconciliation

The TRC is a part of South Africa's transformation strategy. It embodies the principle of reconciliation, which has been a major strand of the new government's thinking since 1994. The government has consistently linked reconciliation with negotiated settlement, national unity and non-racialism. It has considered direct social and economic change to be a component of reconciliation rather than a necessary product of it, and has assigned direct responsibility for promoting it to the Reconstruction and Development Programme (RDP), and subsequently the Growth, Employment and Redistribution Strategy (GEAR). The TRC, by contrast, pursues the need for socio-economic transformation and reconstruction only indirectly.

It is not surprising that reconciliation should be such a high priority for the government. The amnesty agreement was one of the compromises made by the ANC in the name of total social transformation. This compromise, and the ends it was supposed to serve, thus require governmental action to ensure ongoing ANC support at the grassroots level.

Cynics could perceive the TRC as a main ANC mechanism for justifying and rationalising compromises made at the negotiations table. The idea of reconciliation has become something of a catch-all for dealing with the outcomes of compromises made at the negotiated settlement. The ANC's promotion of reconciliation and national unity as overarching priorities has stabilised the country, at least politically, and the process of transformation therefore remains a possibility. However, as the 1999 elections approach, many people question the worth of the TRC and its particular form of reconciliation. Government delivery of social services and the redressing of apartheid's social and economic imbalances have been slow; as a result, the idea of reconciliation that does not include substantial economic redress has become increasingly challenged.

A history of structural abuse

In consequence, during 1998 the TRC came under increasing criticism for focusing narrowly on direct violent actions thereby underplaying the structural inequalities and consequences of apartheid,46 although the final report reveals a lot about the apartheid system. The majority of survivors who appear before the TRC were victimised under apartheid not only because of their political affiliation and activities, but also because of structural inequalities - their gender, poverty, race and social marginalisation.47 These issues need to be taken into account by the government. The danger in constructing the 'truth' solely from the testimony of individual human rights victims and abusers is that the larger picture - centuries of systematic subjugation, enslavement, oppression and exploitation - can be obscured.48 Furthermore, the narrow interpretation of 'gross violations of human rights' does not identify women as victims, even though they bore the brunt of oppression through forced removals, pass arrests and other acts of systematic 'apartheid' violence.49

In its final report the TRC did attempt to take these structural violations of apartheid into account, stating:

Thus, while only some 21,300 persons filed gross human rights violations and petitions with the Commission, apartheid was a grim daily reality for every black South African. For at least 3.5 million black South Africans it meant collective expulsions, forced migration, bulldozing, gutting or seizure of homes, the mandatory carrying of passes, forced removals into rural ghettos and increased poverty and desperation. Dumped in the "national states" without jobs, communities experienced powerlessness, vulnerability, fear and injustice…'

One did not need to be a political activist to become a victim of apartheid; it was sufficient to be black, alive and seeking the basic necessities of life that whites took for granted and enjoyed by right.50 Nevertheless, there remains a debate as to what degree this was emphasised during the TRC's lifetime, i.e. the public process. The public process is the first port of call for most South Africans rather than the 3,500 pages of the final report.

Justice for victims?

During the lifetime of the TRC it has become evident that there is confusion over the meaning of terms such as 'justice', 'reconciliation' and 'truth'. Although there are important debates over the definitions, this paper is more concerned with South Africans' perceptions of what these words have meant to them. Specifically, how do the primary victims of the apartheid system and their families feel about the quest for truth and reconciliation? Has it, in their eyes, brought them any gains?51

Their perceptions are undoubtedly linked to their present socio-economic situation, which represents their most direct experience of the transformation and of reconciliation. They may also be influenced by whether or not they have participated in the TRC processes and whether or not new truths have been revealed personally to them. Their reactions vary. For some, knowing the truth has helped; for others, it has intensified their anger at the compromises made in the name of transformation and reconciliation. Where the truth has not been revealed many victims or survivors have grown increasingly disillusioned with the TRC and the government's reconciliation initiatives.

It can be extremely distressing for survivors when perpetrators of abuse are granted amnesty and thereby escape (legitimate) punishment. Frustrations intensify in those cases where perpetrators have been given a 'golden' handshake by the state. Poverty can force survivors 'to play along in the hope of getting reparations'.52

Such outcomes prompt sharp criticisms of the TRC, involving demands for retributive justice and anger that survivors are not allowed their usual constitutional rights to seek redress through civil courts. People's anger is linked to the need for retribution that is often associated with years of injustice and violence, coupled with the slow delivery of real socio-economic change.

Anger has also been aggravated by the fact that perpetrators do not have to apologise for their actions in order to be granted amnesty. This appears to fly in the face of the spirit of reconciliation. From the point of view of survivors and their rights, the South African compromise becomes difficult to accept. The rights of the individual have been subsumed into the collective rights and national good.

Reconciliation and justice: incompatible bed fellows?

The TRC process rules out formal justice through the courts in favour of restorative justice. This approach emphasises accountability rather than punishment, and advocates a prominent role for the survivor in the court process, or interactions with the perpetrator. At a national level the TRC can be said to be restorative in so far as it offers the possibility of learning from the past while contributing to peace and stability. On an individual level the TRC makes it possible for perpetrators to be re-integrated into their communities at the behest of survivors, provided the latter feel the perpetrator has taken responsibility for their actions and made some form of restitution. If the TRC is defined in terms of restorative justice, then this form of justice becomes the yardstick by which to assess the Commission's performance.53

Although nationally the TRC proclaims a restorative approach, the practice at the individual level is less clear. Survivors have not necessarily had more say in the process or in what happens to perpetrators than they would have had through the judicial process. In fact it could be argued that they have had less say, since the amnesty means perpetrators are not sentenced. Furthermore, restorative justice implies direct restitution from the perpetrator to the community or individual. Without such restitution, amnesty breaks the link between violation and obligation. The TRC process places most of the onus on the State for 'reparation'; the survivors play no part in determining the perpetrators' contributions and the perpetrators are not obliged to make direct restitution.54

On the positive side, the TRC has opened up possibilities for restorative processes to take place, where victims meet perpetrators. In a few rare cases perpetrators have attempted to make direct amends to the victims or survivors involved.55 Some reconciliation has occurred spontaneously as the truth has unfolded.56 Colonel Eugene de Kock (known as 'Prime Evil'), the commander of the notorious Vlakplaas assassination squad, asked for forgiveness for his actions. Bhekisisa Khumalo, who gunned down Dumazile Xaba for allowing United Democratic Front (UDF) meetings in her house, asked the community for forgiveness. Johan and Ann-Marie Smit were reconciled with the parents of their son Cornio's killer.57

Some survivors have seized the opportunity of the TRC process and used it as part of their personal healing and to seek answers directly from the perpetrators. For example, the survivors of Western Cape torturer Jeff Benzien, including ANC MP Tony Yengeni, asked Benzien to demonstrate to a TRC hearing the wet bag torture method that he had used on them. Former activist Ashley Forbes asked Benzien to admit to the acts of torture he had committed against Forbes in detention; others challenged Benzien to name those who ordered him to torture.

In addition, the TRC has helped instigate a range of locally organised initiatives that sprang up to ensure greater participation of survivors in the Commission's process, and to try to ensure that survivors' concerns were addressed.58

The South African TRC is intended inter alia to restore the humanity and dignity of the victim, but in a way that neither excludes nor replaces justice. In this way the TRC may be said to advocate restorative justice at a national level to a greater extent than at an individual level.

This highlights one of the central tensions in the TRC project: that between the individual and collective. Reconciliation is both an individual relationship and also part of a nation-building project.59 Transformation, however, requires real socio-economic change and institutional reform. Not only have apartheid's survivors seen little change in their material circumstances, but they also see their torturers still in office, their jobs preserved by so-called 'sunset clauses' and amnesty clauses that emerged from the negotiation. Herein lie the contradictions between reconciliation and justice.

There are also questions over the capacity of the TRC to promote reconciliation at all the levels - the individual, collective, and among different races/population groups, elites, the military, and so on. There may need to be different processes for different sectors and groups.60 Whether the TRC can be the focus for all this is uncertain.

'Chairperson, may I ask Mr Meyer and his team [from the National Party] that, as you prepare that submission, you consider the following comment from the communities, particularly the greater black communities, and I want to quote: "They get amnesty. They get the golden handshake (meaning rewards). They get retirement pensions worth millions. And we get nothing. And on television they smirk or they smile to boot." As you address that submission, please address the question of the perpetrators on your side. The other parties will deal with the perpetrators on their side. But the perpetrators on your side who, so far, when they apply for amnesty and present themselves, and even say they are sorry. None of them has said: "This is my contribution. I would like to do the following." It stops with, "I am sorry". None of them has said: "As a demonstration, perhaps of how sorry I am, this is what I would like to do". None of them have done that. So as you prepare that submission, could you please address that, because that is the more tangible thing that people are asking, and people say that is a re-victimisation, that is a dehumanisation and that has caused more pain than you realise. Thank you.'61

Dr Ramashala, TRC commissioner
Rehabilitation

Is it possible to rehabilitate perpetrators of human rights abuses? How effectively has the South African TRC achieved this? In the view of Jorge Correa of the Chilean TRC, imprisoning human rights violators is ineffective because their political motivations are not susceptible to rehabilitation while they are in prison. In South Africa, whether a perpetrator demonstrates remorse and/or attempts some form of restitution seems to depend on the individual. The TRC Report looks at the whole issue of restitution and reparation:

A few amnesty applicants did seem sensitive to this need for restitution. Colonel Eugene de Kock devoted the royalties from the sale of his autobiography to a trust fund for victims. Mr Sakkie van Zyl saw his participation in the clearing of landmines in Angola as a form of restitution. Mr Brian Gcina Mkhize risked his own life by co-operating with the authorities to expose clandestine operations in KwaZulu-Natal during the years of conflict. The challenge is to involve much larger numbers of those who received amnesty and other perpetrators of gross human rights violations in the process of restitution.62

Despite the limited number of such occasions, it is likely that no such actions would have occurred without the TRC.

When discussing rehabilitation, it is worth considering precisely who - or what - is being rehabilitated. In South Africa the TRC process has created the space for perpetrators to be rehabilitated,63 as their activities have been subjected to public scrutiny, giving them the chance to repent or seek help. At the national level, however, there is still heated debate over whether the TRC has paid enough attention to the systemic abuses of apartheid, as we highlighted earlier.

Defenders of the TRC say that has placed the institutions of apartheid in the dock. Those who were in charge of apartheid but refuse to acknowledge their guilt, for example ex-presidents de Klerk and Botha, undermined any credibility they might have hoped to provide for the system they created and defended. Many people, however, consider that the systemic violations of apartheid have fallen through the cracks in the TRC system. Yet without the TRC, it is likely that there would have been no national focus on the system at all.

Repudiation, impunity and post-transition violence

The repudiation of previous human rights abuses is vital for governments working towards sustainable democracy. First, it warns previous violators that they have no legitimacy. Second, by instituting a popularly-supported human rights culture it provides barriers to future violations.

However, it could be argued that any granting of amnesty (no matter how conditional) can lead to continuing impunity. Furthermore, arguments that truth commissions prevent future violations often fail to take into account that the nature of violence changes after transition.64 Past perpetrators can, and often do, get involved in other types of violence (largely criminal acts), albeit not direct 're-offending' of political violence. For example, in Argentina, Chile and to some degree South Africa, past perpetrators have involved themselves in private security companies and continued to commit violations for seemingly different reasons, such as to combat crime.

In the months April-July 1997 the Independent Complaints Directorate (ICD) reported that 255 people died in police custody or as a result of police action in South Africa. It is unclear how many of these deaths were caused by unlawful action by the police, yet these figures are of grave concern and may point to continuing impunity in the police service. Vigilantism is also on the increase; the majority of South Africans support capital punishment and it is common for the level of crime to be blamed on the new human rights era.

Human rights education remains poor in South Africa. The majority of South Africans probably do not see torturing criminals as the same type of violation as torturing political dissidents, and probably do not see deaths in police custody as problematic, especially if the person was a suspected criminal. Despite the existence of the TRC, the deaths of suspected criminals (and other continuing abuses) have not provoked any popular outcry against the behaviour of the police.

This begs the question: Do the lessons of truth recovery processes, such as the TRC, become generalised to the wider society? The short answer is that although they may discourage future political violations, there is little evidence to date that they prevent criminal violations after their work is finished.

From Truth to Transformation: The April 1998 Conference

It was important to be forward looking in evaluating the TRC. To put the past right there in the face of future generations and make sure that they hear the voices and see the faces of the victims of apartheid who have spoken out at the TRC. The TRC process was not just for us, but also for future generations [. . .] The TRC marks the beginning rather than the end of transformation in this country.
Graeme Simpson, director, CSVR

Like the TRC itself, the CSVR conference in April 1998 had a focus on the past as well as an eye to the future. It intended to evaluate the work of the TRC, as well as consider how the process of reconciliation should be taken forward after the TRC had produced its report (due at the end of the TRC's full term).

The principal aim of the conference was to encourage civil society to begin to map out an agenda for reconciliation in South Africa building on the work of the TRC. The conference was attended by about 150 delegates mainly from South Africa, and others from El Salvador, Rwanda, Northern Ireland, Germany, Australia, the United States and the United Kingdom. Most delegates were from NGOs, government bodies and churches and had worked with the TRC in some capacity.

This section summarises some of the key debates at the conference. It is not a comprehensive presentation of the proceedings.65

The Role and Impact of the TRC
Unless economic justice is the first item on the agenda, with all that means; unless health, homes, water, electricity and, most importantly, jobs became part of the quest for reconciliation, we will remain the very deeply divided society we are.
Alex Boraine, vice-chairperson of the TRC

The conference looked closely at the role that the TRC played in the macro-political and social changes taking place in South Africa. It examined both the political context that gave rise to the TRC, and the TRC's impact on the transformation of the country.

It was agreed that the TRC's role in transformation was limited because it did not address the structural human rights violations inherent in the apartheid system. Mahmood Mamdani, of the Centre for African Studies at the University of Cape Town, criticised the TRC for defining victims too narrowly. In his opinion, South Africa's borrowing from experiences in Latin America led to an over-emphasis on the notion of perpetrators and victims, thereby ignoring the unique structural issues related to victimisation in South Africa. The result, in Mamdani's opinion, is that there has been insufficient focus on those who benefited from apartheid but may not have been direct perpetrators of human rights violations; this would include the white population which benefited materially and was complicit by its silence. This has made the TRC a-contextual in its approach even if its origin was particularly contextual.66

There are counter-arguments to these criticisms of the TRC's mandate. Focusing on the structural oppression of apartheid might have made the TRC's work unmanageable. The Commission's vice-chairperson, Alex Boraine, found that apartheid's beneficiaries hated the TRC, and that complaints and letters to the TRC did not support the contention that the beneficiaries were 'off the hook'. He said that responses written by members of the public in the Reconciliation Register67 did not demonstrate an expectation of forgiveness, but asked: 'What can I do to atone?'. Alex Boraine's comments highlight the fact that the TRC process has sensitised some 'beneficiaries' of apartheid (mostly white South Africans) to their complicity within the apartheid system. Some of the signatories had donated money to the TRC for the benefit of victims. How representative of the white South African population the Reconciliation Register is, however, is open to question.

Beneficiaries of apartheid

The TRC did try to probe the role of the 'beneficiaries of apartheid' by holding a number of hearings on the key players in the apartheid system, such as big business,68 the judiciary, the medical profession and the media. These hearings invited submissions from civil groups, government and those directly involved, to explain their role in past violations.

The TRC Report quotes Major Craig Williamson (a former security police spy) who expressed a similar understanding of collaboration by pointing to systemic links between the economy, civil society and apartheid:

Our weapons, ammunition, uniforms, vehicles, radios and other equipment were all developed and provided by industry. Our finances and banking were done by bankers who even gave us covert credit cards for covert operations. Our chaplains prayed for our victory and our universities educated us in war. Our propaganda was carried by the media and our political masters were voted back into power time after time with ever increasing majorities.

If accusations continue that the TRC has not looked at apartheid's beneficiaries sufficiently, how successful can these hearings be said to have been? Admittedly, without the TRC no such investigation would ever have taken place, although on the whole those complicit in the system acknowledged little accountability.69 For example, not one judge appeared before the judiciary hearing.70 Some hearings were more successful: the TRC's focus on the medical profession led to the University of Witwatersrand Medical School setting up its own Internal Reconciliation Commission in 1998. This was aimed at investigating apartheid system doctors from the medical school who were complicit in human rights violations.71

Truth: An Ill-Defined Road to Reconciliation
Reconciliation cannot be seen in isolation from the truth: the pursuit of truth is part of the reconciliation which needs to happen in South Africa.
Alex Boraine

The concept, and definition, of reconciliation remains a contested issue. Although the conference produced some clarifications, the term remains inadequately defined. Over the period that the TRC has operated, reconciliation has often been equated simplistically with forgiveness, or has been used to imply some form of co-existence. This can deny the real differences between those in conflict, whilst negating the structural components of conflict that may still be present. At the conference Eddie Makue, from the South African Council of Churches (SACC), contested the very foundation of the word, pointing out that 're-conciliation' assumed a previously harmonious relationship. He suggested that 'conciliation' is a more appropriate term.

Justice Langa, from the Constitutional Court of South Africa, argued that at the collective or social level reconciliation in South Africa has not meant forgetfulness. On an individual level, he said, there can be no reconciliation if the torturer takes forgiveness for granted. He added that reconciliation is a long-term process rather than a one-off event.

Truth was seen by most delegates as integral to reconciliation both at the collective and individual level. Thus, in order for reconciliation to take place, a clear record is needed so that individuals and the country can deal openly with the past. The argument continues that if it is understood how violations came about, mechanisms can be established to prevent them from recurring. However, in South Africa truth is equated too often with reconciliation.

Hard and soft roads

In addition, delegates at the conference criticised the TRC for the way in which it has run those of its functions aimed at reconciliation. They accused the TRC of oscillating between what could be termed a 'soft road' and a 'hard road' to reconciliation.

The 'soft road' was characterised as an approach that hoped to promote reconciliation by appealing to people's generosity of spirit to repent for their actions. Its advantage is that if the perpetrators are brought on board in this way it might be possible to mend broken relationships. The outcome of successful reconciliation using this approach is associated with mutual cooperation, co-existence, non-racialism and improved relationships and mutual understanding. This sort of resolution can provide positive role-models for other individuals, or society at large.

The 'hard road' would be characterised as an approach in which the 'teeth' of the TRC are evident: namely, the use of subpoena, the seizing of information, and so forth. It would see reconciliation as needing to re-establish the rule of law, to establish checks and balances within institutions such as the police, and to prevent the repetition of offences. This view acknowledges that truth alone will not guarantee non-repetition and that a nation in the process of reconciling with a marked history of violence leaves many people, including the general public, susceptible to committing new acts of violence. A firm approach to justice, which combats impunity and ongoing violations, is imperative.

The TRC used neither method to the complete exclusion of the other, but some delegates criticised it for not using the harder route to reconciliation earlier on.

Social transformation

The conference also addressed the idea of reconciliation being linked to, or dependent on, social transformation. In the view of Dr Nzimande, an ANC member of parliament and Secretary-General of the South African Communist Party, reconciliation goes beyond truth. The core of reconciliation, he said, is transformation; failure to understand that the TRC does not represent the sum total of reconciliation in South Africa could undermine the work of reconciliation.

The conference highlighted that, in spite of the TRC, there is no commonly shared definition of reconciliation in South Africa: people are not necessarily starting from the same point, emphasising the same issues, or envisaging the same outcomes. It is becoming clear that truth, or the pursuit of it, cannot simply be equated with reconciliation. Truth, however, is necessary for laying the foundations of the reconciliation process a process which appears to work best at the individual level when spearheaded by civil society.

Has the TRC Revealed the Truth?
There are security police who are known not to have applied for amnesty. Where are they now? Where was the general who gave the order to shoot on sight in 1976 [in Soweto]? Who had ordered the Sharpeville shootings? When the United Democratic Front (UDF) and Azanian People's Organisation (AZAPO) had been at war, who had given the orders to kill on each side?
Nomvenda Mathiane, Business Day

Assessing how effective the TRC has been at revealing the truth can be approached on two levels: firstly at the level of individual case work and investigation; and, secondly, at the level of the apartheid system and responsibility for violations.

Has the TRC exposed the truth for individuals?

The prevailing opinion at the conference was that the TRC had not uncovered as much as could have been hoped, particularly regarding individual cases. It is possible that time and a shortage of resources were against the TRC's Investigation Unit (IU) successfully investigating the thousands of cases put before it. As well as the sheer volume of work to be done, documents were destroyed by the old security apparatus.

Some participants, however, were more critical of the IU. Piers Pigou, a former TRC investigator, pointed to bureaucratic problems in the Commission,72 a lack of coordination, ad hoc decision-making, lack of prioritisation of cases until late in the Commission's life, problems with the attorney-general's office and a high work load. Alegria Noyka from the Khulumani Support Group criticised the IU for failing to follow up some leads and informing survivors of progress on their cases. Some survivors heard nothing from the TRC for two years after giving their statements.

In terms of seeking to establish the truth in individual cases, the TRC was set an impossible task. Many victims expected full disclosure and a completed investigation of their case, and these were perhaps unrealistic expectations. The TRC itself may have failed to communicate its purpose effectively: during its work the Commission did not report back to the majority of survivors on the status of their case.73

The above criticisms are concerned with the operations of the IU rather than its mandate which, on the whole, was satisfactory. Compared with other commissions, the IU has extensive powers of subpoena, search and seizure. However, it used its powers extensively only towards the closing stages of the TRC. This was perhaps because the IU was initially constrained by the TRC's 'soft road' approach to reconciliation and the delicate political balance of the transition. A shift became evident in the PW Botha case, when the former President was convicted for ignoring a subpoena issued by the Commission.74

Reconciliation without truth?

We have asked whether truth can achieve reconciliation. Yet the difficulties inherent in uncovering the truth beg the question: if the whole truth is not known, is reconciliation possible? The answer is complex.

Even though the TRC process has established some truth, for individuals the process is highly personalised and it seems unlikely that they will feel reconciled. Reconciliation cannot simply be equated with the discovery of the truth, or with forgiveness. Whether reconciliation occurs at an individual level depends on how the individual responds to the truths being revealed and acknowledged and the context in which the truth was revealed.

Has the TRC uncovered a larger truth?

The Commission's final report has revealed a considerable amount of information about the workings of the apartheid state as a system. Much of the responsibility for past atrocities were laid at the door of the previous government: in other words, the state created a context which lead to, and sanctioned, human rights violations. Political parties (including the National Party of the former government) have not, however, taken full responsibility for atrocities. They have apologised for the acts of the past but have never fully acknowledged their complicity in developing the apartheid system, nor the impact of the system on individuals. Instead they have either tried to contextualise atrocities (largely under the banner of fighting communism), or made scapegoats of specific individuals.75

At the conference, Piers Pigou expressed the view that the National Party (NP) ministers who had appeared before the TRC had been cowardly, in that they had disclaimed responsibility by accusing the other applicants of being 'a few rotten apples'. This added insult to injury for the victims. He said that individuals from liberation movements had disclosed a little more of the truth and had admitted to more responsibility.

Alex Boraine confirmed that foot-soldiers and even generals had applied for amnesty for specific crimes,76 and had thereby taken the blame, but that political leaders had refused to take responsibility for human rights violations.

The TRC's final report ascribed to key political actors (especially the NP) greater responsibility than they have assumed publicly. However, the testimonies heard during the TRC's public process will probably have greater resonance for most citizens than the words of the final report. This could create anger and resentment toward the symbols of apartheid and the white community as a whole for failing to admit responsibility. In the long run, racial tensions could increase despite the TRC having exactly the opposite intention. A survey by Market Research Africa found that almost two thirds of urban South Africans believe the Truth and Reconciliation Commission hearings into gross human rights abuses under apartheid have worsened race relations.77

Trading justice for truth
It [the TRC] said no to amnesia and yes to remembrance, no to full-scale trials but yes to the possibility of forgiveness [. . .] it is morally defensible to say that amnesty is the price for peace.
Alex Boraine

How far has the trading of justice for truth succeeded in establishing collective and individual truth? What are the long-term implications - for peace, reconciliation and the rule of law in South Africa - of using this strategy?

Implications for long-term peace and reconciliation

People are more likely to feel that some collective form of justice has been achieved through the TRC that those responsible for past atrocities have had to account for, and admit to, their actions. The TRC was more successful at the level of collective repudiative, rehabilitative and restorative levels of justice than at the individual level.

However, the question of the TRC's ability to deal with impunity and the reform of the security apparatus is important. Has the general population been left with a sense that South Africa is a just country? Given present high crime rates and accusations that the criminal justice system is inefficient and corrupt, it is unlikely that many people will feel that the TRC has re-established the rule of law. Although this is not at root the fault of the TRC, the amnesty agreements could fuel the popular perception that the guilty go unpunished in South Africa.

SAPS figures indicate that in 1996 there were a total of 25,782 reported murders, 28,516 attempted murders and 12,860 car hijackings. There were 50,481 reported rapes. The incidence of violence in South Africa is extremely high. In 1996, the homicide rate for South Africa was estimated at approximately 61 per 100,000 inhabitants, compared to approximately 9 per 100,000 in the United States and 1 per 100,000 in the United Kingdom. This may suggest the TRC is irrelevant for many people, who regard the 'fight against crime' to be of greater immediate importance.

Although there have been a number of cases where victims and perpetrators appear to have become reconciled, there is still much anger about the granting of amnesty. It is ironic that people's anger may have been compounded by the horrible truth revealed by the TRC process. This anger needs to be dealt with and legitimised. In this sense, the TRC constitutes both a threat and an opportunity. The threat lies in the opening of old wounds, which exposes the extent of the compromises made in the name of peace; the opportunity lies in this exposure, which serves to open a door to deal with some of the problems that have arisen.

Implications for the rule of law

Many conference participants argued that prosecutions are an integral and final step in the overall TRC process and that alleged perpetrators who did not apply for amnesty should be prosecuted after the TRC had been wound up. The TRC mandate, it can be argued, did not exclude the use of formal justice. Indeed, the threat of formal justice lay at the heart of forcing perpetrators to confess. The failure of trials such as that of Magnus Malan can make it easy to dismiss the legal route to truth, but the guilty verdict passed on Ferdi Barnard for the murder of anti-apartheid activist David Webster shows that the formal justice system can produce results.78

It is vital that trials are initiated against those who failed to apply for amnesty. This will send out a clear message that the TRC was both a restorative and rigorous formal justice process aimed at re-establishing the rule of law. It will also make way for new truths to be revealed that were not forthcoming during the TRC process.

Support for victims
Wounds will continue to fester from generation to generation.
Hlengiwe Mkhize, Truth Commissioner

The need for a survivor-centred approach by the TRC has been raised frequently over the last two years. There are three main issues to be considered: social and psychological support for survivors and families of victims; reparations and the effect on victims and survivors; and the question of justice, and to what degree amnesty has affected victims.

Psycho-social support79

NGOs have said throughout the TRC process that, if it is unmanaged, uncovering the past can cause more psychological damage than leaving it undisturbed. In addition, learning the truth might not ameliorate calls for formal justice but lead into cycles of revenge and retribution. Equally, trauma does not simply disappear with the passage of time and is likely to have emotional consequences for the individual and society at a later stage. The TRC provided a starting point for working through past trauma by breaking the culture of silence, and in some cases it supported victims through their suffering.80

Like many others at the conference, Hlengiwe Mkhize, head of the TRC's Reparation Committee, acknowledged that it is difficult for survivors to revisit the past. Nomfundo Walaza, Director of the Trauma Centre for Victims of Violence and Torture, noted that one of the successes of the TRC was to give a voice to the voiceless, thereby counteracting propaganda, encouraging a human rights culture and opening up the possibility for healing.

Nonetheless, most conference delegates were critical of the way in which the TRC supported victims. Nomfundo Walaza stressed that the TRC was unable to provide psychological services to survivors and the families of victims, and that its limited definition of gross human rights violations left some people feeling that their pain had been overlooked. She said that in some cases this encouraged a desire for revenge. From the TRC perspective, Hlengiwe Mkhize said that when she had wanted to initiate programmes to support survivors, she was told that there was no money available in the TRC's budget.

It seems clear that, while the TRC was perhaps a necessary step towards the provision of psychological support for victims,81 it was not sufficient. The TRC has debated whether it is responsible for supplying formal psychological support to those testifying. This may well be a reflection of the Commission's largely legalistic interpretation of its mandate, which has dominated most of its operations. It also points to the enormity of the TRC's workload and staff's reluctance to undertake additional work.

Mental health and a psychological approach to dealing with the past are not very high on the political agenda in South Africa. Mental health remains a marginal issue, even though its impact on the country's productivity can be as damaging as other health problems. Questions need to be asked about the resources made available for legal support for victims and perpetrators during the process of the TRC (most of which were paid), compared with those made available for psychological (and even healthcare) support services.82

Mental health in relation to past violations is about more than trauma. Most individuals have been left with a mixture of issues related to social, psychological and medical problems. Addressing these will require strategies beyond the simplistic belief that the only psychological impact of the past has been post-traumatic stress disorder.83

The TRC will probably recommend to the government that trauma centres are set up to provide counselling and other services. However, much of the work will still fall to NGOs and established victim support groups.

'I know, Chairperson, that the Truth Commission has got a programme of therapy, but I hope it can be sustained, because my own experience in the few months has been that some of the women whose wounds you opened we did not pay enough time or give them enough opportunity to heal once they left these halls. I have been to Cape Town where there were hearings, Chairperson. I have been to Port Elizabeth. I have been to King William's Town. There are wounds that have been left gaping. It may not be the duty of the [Commission] alone; it may be the duty of the public, of all of us; but those wounds, they need to be addressed, Chairperson. You cannot open them in this hall and leave them gaping. Somebody has got to take responsibility.'

Ms Thenjiwe Mtintso, former chairperson of the Commission on Gender Equality and currently deputy secretary general of the ANC, at the Commission hearing on women in Johannesburg.84

Reparations and making amends
The gap between hearings and actual reparations is a major weakness of the TRC.
Alex Boraine

Acknowledgement, apology, recognition and even compensation can be useful, but cannot bring back the dead or assuage the psychological pain suffered by families and victims. It is an intractable problem that reparations and compensations can only address the psychological and material impact of loss to a limited degree.

Mirroring the role that reparations have played thus far in the TRC process, the issue received relatively little emphasis at the April 1998 conference, compared to questions about justice and reconciliation. The central concern was how reparations or making amends could be balanced against the costs of amnesty. Alegria Nyoka from the Khulumani Support Group said that the government granted amnesty to perpetrators of abuse, while apparently failing in its moral obligation to assist their victims with financial, psychological and physical support at the same rate. This was reinforced by Eddie Makue from SACC, who said that although restitution was one thing on which reconciliation was based and that restitution went beyond words, the granting of amnesty has outpaced the reparations and rehabilitation work of the TRC.

It would be premature to criticise the TRC on its final reparations policy and what this might mean for survivors. The policy is complete and it now rests with the government to implement (or not). However, it is fair to note that even urgent interim-reparations took more than two and a half years to be granted.

With the TRC moving towards closure, Hlengiwe Mkhize, head of its Reparation Committee, said that there will need to be continued pressure from the media and NGOs for the government to implement final reparations. She said that reparations funds should go to NGOs working in the field of reconciliation. The TRC's current proposal (see section of final report p11 onwards) is to make grants for each person 'found to be a victim' - namely, the direct survivor or a family member and/or dependent of someone who has suffered a politically inspired and gross violation of torture, abduction, murder or attempted murder in the conflicts of the past.

It is proposed that the recommendations are implemented in two phases. Initially those found to be victims will be given an 'urgent' one-off grant ranging from R2,000 to R6,000 per victim. The grants vary as the TRC has factored in variance related to the number of people living in the victim's house or whether the survivor or family member of a victim lives in a rural or urban area. After this initial grant a longer-term strategy was proposed by the TRC. If the government accepts this proposal it would see the government (using funds from overseas donors) paying out approximately R3 billion to the 15,000-20,000 survivors. This would work out at roughly R17,000-R24,000 per victim per year over a six-year period.

The TRC has also argued for a range of other strategies for those found to be victims.85 These include, amongst others, the need for: symbolic reparations (such as the erection of headstones and memorials); legal and administrative interventions (such as expunging criminal records, and declarations of deaths); community rehabilitations (including programmes for better access to general healthcare and mental healthcare services); and institutional reforms (geared toward the judiciary, security forces, correctional services and so on).

The list of symbolic forms of reparation is long. The challenge to the TRC, and the government, will be to implement sustainable reparations initiatives and processes. Any initiative will need to be weighed against the continued structural and economic inequalities in South Africa. Can symbolic reparations, such as a remembrance park, serve a useful purpose where poverty continues?

The compensation process is likely to face a number of challenges, such as the difficulty of managing compensation payments to thousands of people. Furthermore, the TRC will have to refuse compensation to some if they do not meet its criteria. The TRC will also face resentment from those survivors who could have won civil claims but, because of the amnesty provision, have been denied this possibility; any reparations payment they receive will be substantially less than what they might have won through the courts. Nevertheless, there are those who could not have afforded a civil claim and who will receive at least some compensation.

Looking Forward: A Human Rights Culture in South Africa

In uncovering the past and making perpetrators of abuse account for their actions, the TRC intends that South Africans should learn how to prevent future atrocities. Its recommendations are meant to help develop a human rights culture in South Africa. The final session of the conference tried to capture this forward-looking aspect of the TRC by focusing on the various bodies that have been set up to help formalise such a culture.

Yasmin Sooka from the TRC noted these different mechanisms for transformation, commenting on the existence of commissions on land, gender, youth and human rights, as well as the South African NGO Coalition. The latter had taken on the function of encouraging people to tell their stories about poverty, thereby helping to fill the gaps that the TRC and its limited mandate had not addressed. Yasmin Sooka commented that the TRC was not the only instrument for reconciliation.

Graeme Simpson, director of CSVR, suggested that the TRC process needs to involve itself more with other operations that touch on its own work. He emphasised the role of the judiciary under apartheid, noting that it was of particular concern that no judges had appeared before the Commission. Similarly, correctional services, and military and policing institutions were in dire need of transformation. All of these - primary violators of human rights in the past - are now guardians of South Africa's constitution and its bill of rights. They are still infringing rights. Simpson warned against romanticising South Africa as a post-conflict society. Conflict continues in South Africa, and the real challenge is to understand the changing nature and roots of the high level of violence that still exists - in particular the shift from political to criminal violence. He said there is a risk that the TRC (particularly through granting amnesty) might contribute to a culture of impunity. It might thus undermine, rather than build, the credibility of the rule of law and of criminal justice institutions.86

There are widespread concerns about institutions continuing to violate human rights. Alegria Nyoka from the Khulumani Support Group said that in her work she sees no sign of transformation in SAPS. Former TRC investigator Piers Pigou said that he knew that torture is still used by the police in criminal investigations in South Africa. He suggested that the criminal and the political could not always be compartmentalised.87

Limitations of the TRC's lessons

The TRC has made past violators of rights accountable to an extent, or perhaps to the degree possible within the post-negotiations political context. The horrors of apartheid have been made visible and audible, and as a result it is unlikely that a system of that political character would arise in South Africa again in the near future.

Yet the conference emphasised the enormous amount of work to be done to put an end to all human rights violations in South Africa. Torture of suspected criminals and deaths in custody are still common.88 The TRC's lessons have not been broad enough and need to be extended after its life.

Jody Kollapen, from the South African Human Rights Commission (SAHRC),89 sees the issue of a future human rights culture as falling into the mandate of the SAHRC. He pointed to SAHRC's proposals for a charter of victims' rights and a victims' compensation fund for criminal matters, and noted the importance of socio-economic rights - the suffering of the poor is not alleviated merely by the right to vote. In his view, the new government's response on human rights violations had been disappointing. The High Court had ordered the provincial government of the Eastern Cape to pay social security grants, and the province was in default of that order. Kollapen ascribed some of the blame to NGOs, suggesting that in the 1970s and 1980s they could have been more vocal about such an outrage.

The conference stressed that much work needs to be done to establish a human rights culture, and also demonstrated that, despite the existence of a number of bodies and policies to protect human rights, the conversion of policy into practice is a long way off.

Life after the TRC

The work of the TRC is open to criticism. Yet it has clearly played a crucial role in South Africa's transformation to democracy and in beginning the process of reconciliation.

Poor coordination between bodies geared toward transformation

The mandate of the TRC is still a subject of debate in South Africa. The Commission has been criticised for failing to address the structural violations of South African society. That this was not its mandate points to the dissatisfaction with the entrenched social inequality in the country. It also indicates the poor coordination between the various bodies geared towards transformation in South Africa. Even where new, and often creative, policy has been developed, implementation has been slow. The gap between policy formulation and implementation urgently needs to be addressed.

Reconciliation, law enforcement and the legacy of impunity

Reconciliation remains a contested term in South Africa. It has often been used as a catch-all term typifying the government's style. The conference suggested that reconciliation is not merely forgiveness or uneasy co-existence; it implies knowing and acknowledging the truth about the past. Nor should reconciliation be a search by government for stability without transformation (not 'rocking the boat'). It has too often remained at a formal level rather than being translated into policy. The TRC has been criticised for not being associated with a more rigorous enforcement of the law, relying on individuals and perpetrators to confess their crimes rather than forcing them to come forward. Despite some gains being made with this approach, there are concerns that it might have done little to end the culture of impunity. Nonetheless the TRC final report does make some recommendations such as reviewing the role of private security companies, taking steps to inhibit the reappearance of 'people's courts', and putting any members of the security forces found to have committed human rights through the criminal justice system.

A permanent investigative body and prosecutions

Although the TRC has revealed some new truths and enormous amounts of information, many individuals feel that their cases have not been resolved. Much investigative work still needs to be undertaken, and so the issue of establishing a permanent body or office to continue investigating the crimes of the past must be considered. This could help engender a culture of accountability and responsibility.

It was perhaps inevitable that truth would be traded for justice in South Africa. However, the work of the TRC has not ended calls for formal justice - far from it. Prosecution of those who did not apply for amnesty could answer some of the calls for justice, help reveal new truths, maintain an approach that is consistent with the rule of law, and fulfil an international duty to prosecute the perpetrators of gross violations of human rights. It could also combat the perception that the TRC is focused on the perpetrator rather than the survivor. The TRC final report states that prosecutions of those who did not apply for amnesty should be considered. However, it also says that consideration must be given to imposing a time limit on such prosecutions. Thus the TRC does not call clearly for prosecutions, thereby threatening the fights of victims.

Social and psychological support mechanisms for survivors

The TRC may have started some individual and collective healing processes in the country. However, much social and psychological support for survivors still needs to be undertaken. It is imperative that civil society organisations are strengthened so that they can provide these services. Many wounds have been opened that will require years to heal. The TRC final report does call for the establishment of more accessible and appropriate health (including mental health) services. It remains to be seen if this becomes a reality.

Speedy reparations

The gap between the reparations and amnesty processes is one of the most serious criticisms of the TRC. The TRC began to provide 'urgent' interim assistance only two years into the process, so prospects for rapid implementation of long-term reparation seem poor. It is difficult to organise compensation or reparations to thousands of people who have suffered a multitude of violations. But it is necessary to overcome the perception of many victims that perpetrators have gained more than survivors. Therefore lobbying to have reparations speedily processed by government will be critical. Thought should be given to the management of problems that arise as a result of some people receiving no reparations.

The TRC's recommendations, the government and civil society

The TRC makes a host of recommendations. The implementation of many of these will rely on government, civil society and society as a whole. The relationship between the TRC, existing current human rights bodies and commissions needs to be considered. It is not sufficient to say that NGOs and current bodies like the SAHRC should take the work of the TRC forward. So how is such a process to occur? How will it work? Who will fund it? There is a danger that organisations will be expected to take up the TRC's work without a clear programme that includes assessing the capacity and needs of those continuing its work. Perhaps the Reconciliation Summit suggested by the TRC will be useful in this context. Whatever happens, an assessment and constant strengthening of civil society will need to continue unabated in South Africa.

Conclusion

The TRC has been caught in the middle of a number of processes, struggling to find a balanced way between truth and justice; blanket amnesty and retributive prosecutions/lustrations; reconciliation and justice; the right to know the truth and the desire for retribution. Equally it has embodied a number of restrictions and opportunities.

Restrictions and opportunities

The TRC faced the following constraints:

  • Context: its framework (e.g. amnesty) was defined by the negotiators
  • Time: the TRC's work has not been completed (or even half-completed) within the specified time
  • Mandate: the mandate, and the way the TRC interpreted it, has thrown up numerous constraints90
  • People have refused to co-operate, to the extent of destroying records
  • Staff inefficiencies and bureaucratic problems
  • Unrealistic expectations.

In terms of opportunities it has had, amongst others:

  • More financial and personal resources than any truth commission to date
  • The power to grant amnesty and not have to accept blanket impunity imposed from above
  • The scope to interpret its own rules within the given mandate
  • The ability to allow survivors and the general public to influence its work and its method of operation.

The TRC has given people the opportunity to engage in recording, making and writing their own history.91 Unfortunately, it did this within limited parameters, most of which were determined by the nature of the bargains struck during the 1992-94 negotiating period.

The TRC's biggest failing may yet prove to be its lack of involvement in social and economic transformation. The ANC government has tied the concept of reconciliation to the transformation agenda, and it is unlikely that reconciliation can be achieved if structural and economic inequalities continue.92 The Commission's biggest contribution may prove to be the laying down of a definitive history of apartheid's abuses, together with its work towards a sustainable human rights culture.

The TRC has not uncovered the complete picture. It is regrettable that events outside South Africa's borders could not be the subject of hearings (some are covered in the TRC Report Vol. 2 (2)) given the damage that Pretoria's destabilisation strategy inflicted on its neighbours. With xenophobia widespread in South Africa, an understanding of others' suffering is an important part of human rights discourse, and will be useful in the creation of regional solutions towards peace and stability in the southern African region. The TRC also admits to having failed to explore and investigate, to the extent that it would have wished, the 1990-1994 violence inside South Africa, which cost many lives.93 The Commission also highlighted that it had erred by not conducting a search and seize operation on the defence archives.94

The TRC and transformation?

How far has the TRC influenced transformation in South Africa? Given that the Commission was born in compromise and negotiation, and given the balance of forces at that time, it is questionable whether the TRC could have brought about transformation, especially in the economic and social sphere. The TRC could bear the weight of transformation only in legal and moral areas, so laying the foundations for others to build on. Tragically, so little transformation appears to be occurring elsewhere that the foundations of reconciliation and openness are in danger of being undermined. Government defenders can justifiably point to a number of measures in land, housing, infrastructural improvements, provision of electricity, and so on. However, many believe that the government is wedded to a neoliberal programme that has little chance of overcoming the inequalities and economic oppressions of the past, or of alleviating poverty.

Constructing the future

Part of transformation is the provision of a history common to all South Africans. Without this, the future may be difficult.

This report reveals that although the TRC has officially been wound up (the amnesty hearings will continue into 1999), much of its historical work is incomplete. This will have an impact on how it makes recommendations and implements reparations. There are thousands of unsolved cases and many survivors waiting for responses. In addition, the TRC has uncovered trauma that needs to be dealt with, and many South Africans are angry over what they see as a lack of justice in the TRC process and in the continuing socio-economic inequities. Anger (perhaps misdirected at the TRC) will probably surface as the 1999 elections approach. Even though the TRC's final report is expected to make valuable recommendations, a significant gap still exists in South Africa between policy and actual implementation and this can only add to people's frustration.

Notes:

1 Michael Ignatieff, cited in Vol. 1 (5) 33 of the report of the South African Truth and Reconciliation Commission.

2 See Appendix B.

3 TRC Report Vol. 1 (2) 80.

4 See Bronkhurst, D (1995) Truth and Reconciliation: Obstacles and Opportunities for Human Rights, Amnesty International Dutch Section, Amsterdam.

5 Ibid.

6 See Hayner (1994) 'Fifteen Truth Commissions - 1974 to 1994: A Comparative Study', in Human Rights Quarterly, 16, pp. 597-655.

7 See TRC Report Vol. 5 (1) 7.

8 Hayner, op cit, pp. 604-605.

9 Priscilla Hayner, personal communication to authors July 1998.

10 Hayner, op cit, p607.

11 President Idi Amin set up a commission to look into disappearances between 1971 and 1974. This was widely believed to have been an attempt to persuade the international community that human rights abuses were being investigated. The commission was headed by a Pakistani judge and comprised two police officers and a soldier. The commission had powers to compel witnesses to testify and obtain official information. It heard 545 witnesses and documented 308 cases of disappearances, holding two of Amin's special security bodies responsible. The commission criticised the army and the police for abuse of power and made recommendations to the government. However, access to information was blocked by many sectors of the government, and the four commissioners were later targeted by the state in apparent reprisals for their work. See Richard Carver 'Called to Account: How African governments investigate human rights violations', African Affairs 98 (356), 1990.

12 'It is important to note the uniquely open and transparent nature of the process that preceded the adoption of the Bill. Civil society played an influential role in the months of debate and compromise leading to its adoption. The parliamentary Portfolio Committee on Justice conducted extensive public hearings. As a direct result of these public hearings and the pressure exerted by civil society, the parliamentary Portfolio Committee made a significant change to the Bill'. TRC Report Vol. 1 (4) 22.
'One of the compromises reached between the African National Congress (ANC) and the National Party (NP) when the Bill was discussed in Cabinet had been that amnesty hearings should be held behind closed doors. Human rights organisations and other NGOs successfully contested this and the principle of open hearings, except where it defeated the ends of justice, was won. The Bill was signed into law by the President on 19 July 1995 and came into effect on 1 December 1995 after the commissioners had been appointed. The appointment process was also open and transparent. Despite the fact that the legislation gave the President the authority to decide who would serve on the Commission, President Mandela decided to appoint a broadly representative committee to assist him in the process of identifying the commissioners. Organisations of civil society participated in the process by nominating prospective commissioners and monitoring the hearings which led to the appointments. The committee called for nominations and 299 names were received. After the public hearings, a list of twenty-five names was submitted to President Mandela. The President consulted with his Cabinet and with the heads of the political parties and appointed the required seventeen commissioners'. TRC Report Vol. 1 (4) 23.

13 TRC Report Vol. 1 (5) 5 and 6. For more on the public process of the TRC see Hamber, Mofokeng and Simpson (1997), and van der Merwe, Dewhirst and Hamber (1998). Both pieces of research show that although public and civil society organisations' input into the South African TRC was strong at the beginning of the process, it decreased over the life of the Commission.

14 Vol. 2 (1) 168 of the TRC Report discusses the issue of naming names. See also The Guardian 31 October 1998 on Chief Buthelezi threatening to sue the TRC. Plus The Independent, 1 October 1998.

15 The official title is the Commission for Historical Clarification of the Violations of Human Rights and Acts of Violence which have caused suffering to the Guatemalan Population.

16 South Africa's TRC was restricted to specific areas such as murder, torture, attempted murder and abduction. However, some of its remit was left to the Commission to define: for example, the TRC could focus on what was termed severe ill-treatment. El Salvador's commission had a very wide mandate that could focus on any 'serious acts of violence … [whose] impact on society urgently demands that the public should know the truth'. See Hayner (1996) 'Commissioning the Truth: Further Research Questions' in Third World Quarterly, Vol. 17, No. 1, pp. 19-29.

17 Vol. 1 (5) 39-56 of the TRC Report discusses the nature of truth and its relationship to reconciliation as well as amnesty issues.

18 Andries Odendaal 'For All its Flaws', Track Two, Vol. 6, Nos. 3&4, December 1997, p4.

19 Ibid

20 The Independent, 22 August 1996.

21 Zalaquett, J (1993) 'Introduction to the Report of the Chilean National Commission on Truth and Reconciliation', in Report of the Chilean National Commission on Truth and Reconciliation, Vol. 1, London: University of Notre Dame Press.

22 In March 1996, the month before the TRC began its hearings, Justice Minister Dullah Omar announced plans to withdraw from 73 ANC members their immunity from prosecution, which had been granted to enable them to take part in the all-party talks in the early 1990s. The announcement appeared shortly after a statement by the ANC urging members to appear before the TRC. Having been able to overcome arguments for general amnesty the ANC was now faced with subjecting its members to the process.

23 The 1995 Act establishing the TRC used the term 'victim' rather than 'survivor'. The term can include those who suffered directly or their relatives or dependants who suffered indirectly. Many in South Africa, however, stress that they were not passive victims, and in that sense were survivors. The TRC Report Vol. 1 (4) 37 states: 'From the outset, the commissioners expressed some discomfort with the use of the word "victim". Although the term is commonly enough used when talking about those who suffered under apartheid, it may also be seen to imply a negativity or passivity. Vol. 1 (4) 38-39 is also relevant here.

24 Agreed in May 1996.

25 In schedule 6, paragraph 22 of the South African Constitution of 1995 it is noted: Notwithstanding the other provisions of the new Constitution and despite the repeal of the previous Constitution, all the provisions relating to amnesty contained in the previous Constitution under the heading 'National Unity and Reconciliation' are deemed to be part of the new Constitution.

26 For more detail refer to the full text of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995. There were also several amendments to the Act to ensure extensions of the cut-off dates, the life of the TRC and the ongoing work of the Amnesty Committee.

27 The original period lasted until December 1993 but was extended to the date of Nelson Mandela's inauguration as president, 10 May 1994. In the TRC final report the rationale given for the extension is as follows: 'The extension of the cut-off date for amnesty applications from 5 December 1993 (when the negotiation process was completed) to 10 May 1994 (when President Mandela was officially inaugurated) was a reminder of the transitional context in which this unique, accountable amnesty process needed to be understood. The extension of the date was due largely to pressure by, on the one hand, the white right-wing (the Afrikaner Weerstandsbeweging (AWB) and Afrikaner Volksfront) which opposed the elections by violent means and, on the other, black groups such as the Pan Africanist Congress (PAC) and Azanian Peoples Liberation Army (APLA), which had continued the 'armed struggle' during the negotiation process. It became clear to the Commission in the course of its work that such an extension would enhance the prospects of national unity and reconciliation, because it would allow these groupings to participate in the amnesty process'. Vol. 1 (5) 63.

28 For the TRC's analysis of the work of this committee see Vol. 5 (1) 1-5 of the TRC Report.

29 In Vol. 5 (1) 48-49 of the TRC Report the Commission had this to say about its work on 'gross violation of human rights': 'This definition limited the attention of the Commission to events which emanated from the conflicts of the past, rather than from the policies of apartheid. There had been an expectation that the Commission would investigate many of the human rights violations which were caused, for example, by the denial of freedom of movement through the pass laws, by forced removals of people from their land, by the denial of the franchise to citizens, by the treatment of farm workers and other labour disputes, and by discrimination in such areas as education and work opportunities. Many organisations lobbied the Commission to insist that these issues should form part of its investigations. Commission members, too, felt that these were important areas that could not be ignored. Nevertheless, they could not be interpreted as falling directly within the Commission's mandate'.

'The Commission recognised that these issues formed part of the broader context within which the specifically defined gross human rights violations had taken place. It sought to give attention to them by receiving submissions from a number of organisations that had been particularly concerned with these issues in the past. These submissions made a valuable contribution to the section of the final report dealing with the broad context within which the gross violations of human rights took place, although they could not be considered as victim hearings. They gave depth to the larger picture, but they still excluded individuals from recognition and from access to reparations, and many people remained aggrieved.'

30 For debates over the definition of severe ill-treatment see TRC Report Vol. 5 (1) 50-57.

31 Details on the statement process are in Vol. 1 (6) 15-16 of the TRC Report.

32 Vol. 1 (6) 32-36 of the TRC Report says of the nature of representative hearings: 'In selecting which persons should be afforded a public hearing, the Commission took the following considerations into account:
a The nature of abuse in the community or area: the Commission attempted to select a group of victims whose experiences represented the various forms of human rights abuse that had occurred in the area.
b The various groups which had experienced abuse: the Commission attempted to select a group which included victims from all sides of the conflict so as to present a picture of abuse from as many perspectives as possible. In many instances, this required that the Commission proactively seek out victims from particular communities.
c Representivity in relation to gender, race, age and geographical location in the area where the hearing was to be held'. (See also Vol. 5 (1) 23 for slightly different wording on this by the Human Rights Violations Committee).

33 TRC Report Vol. 1 (6) 37-41 describes the event, special, institutional and political party hearings that were also heard: 'In the event hearings, the Commission focused not on the individual experiences of victims, but on specific events in which gross violations of human rights occurred. These hearings explored the context in which a specific event occurred and typically involved testimony not only from victims but also from alleged perpetrators and experts with specific knowledge about the event or issues related to it. These hearings were selected as 'window cases' and aimed to provide detailed insights into particular incidents that were representative of broader patterns of abuse. Event hearings also provided affected communities and their representatives with the opportunity to speak about collective experiences of abuse, thus offering a more global perspective of human rights abuse. Among the event hearings were the following:
a. The 1976 Soweto student uprising;
b. The 1986 Alexandra six-day war that followed attacks on councillors;
c. The KwaNdebele/Moutse homeland incorporation conflict'.

34 'The people who testified in public made up less than one-tenth of all the people who made statements. It is important to stress that all the statements received the same degree of attention by the Human Rights Violations Committee. In order to provide this attention, it became necessary to curtail the public hearings and focus on the mass of statements and on making findings in every case.
TRC Report Vol. 5 (1) 38.

35 TRC Report Vol. 1 (6) Appendix Two, Section 29.

36 Government Gazette, 16579 Act 34 of 1995, 26 July 1995, Section 20(1)(b).

37 Government Gazette, 16579 Act 34 of 1995, 26 July 1995, Section 20 (2)(f).

38 These are known as the Norgaard principles and were used in Namibia's amnesty process.

39 See for instance the refusal to grant amnesty to ANC member Mkheyi Khanyile in August 1997 for three murders, because according to the Amnesty Committee 'the applicant chose not to be frank, and in the process has failed to make a full disclosure of all relevant facts'. The Star, 20 August 1997.

40 TRC Report Vol. 1 (4) 25-26.

41 Five families of murdered anti-apartheid activists, including those of Steve Biko and Griffiths Mxenge, backed by the Azanian People's Organisation (AZAPO), took legal action against the granting of amnesty, seeking to set aside Section 20(7) of the Promotion of National Unity and Reconciliation Act 34 of 1995 on the grounds that it was inconsistent with Section 22 of the Interim Constitution. But the constitutional court ruled on 25 July 1996 that the TRC was legally able to offer amnesty and indemnity from criminal charges and civil claims if perpetrators came forward voluntarily, freely confessed and could prove that their crimes were politically motivated. Policy considerations, especially the importance of amnesty to the 1993 political settlement and the incentive this gave to revealing the truth, weighed heavily with the constitutional court in making this ruling. See South African Journal on Human Rights, 13(2), 1997.

42 TRC Report Vol. 1 (5) 73.

43 TRC Report Vol. 1 (5) 68-70.

44 TRC Report Vol. 1 (5) 3 as well as Vol. 1 (5) 3-9 'concepts and principles' which recognises the difficulties in this task.

45 TRC Report Vol. 1 (5) 39-45 discusses the nature of truth.

46 See Mamdani (1996) 'Reconciliation without Justice', Southern African Review of Books 46, pp. 3-5. See also footnote 31 above for the TRC response to this.

47 Hamber (1998) 'Dr Jekyll and Mr Hyde: Problems of Violence Prevention and Reconciliation in South Africa's Transition to Democracy' in E Bornman, R van Eeden and M Wentzel (eds) Violence in South Africa, pp. 349-370.

48 Statman (1995) 'Exorcising the Ghosts of Apartheid: Memory, Identity and Trauma in the "New" South Africa'. Paper presented at the 18th Annual Meeting of International Society of Political Psychology, Washington DC.

49 Goldblatt and Meintjies (1997) Gender and the Truth and Reconciliation Commission. Unpublished submission to the Truth and Reconciliation Commission.

50 TRC Report Vol. 1 (2) 45-46.

51 For survivors' views on the TRC process, see van de Merwe (1998); CSVR/Khulamani Victim Support Group (1998); Frost (1998).

52 Richard Wilson, personal communication to authors in 1998. Wilson, a lecturer at the University of Sussex, has been conducting research on the TRC, including interviews with survivors.

53 The TRC Report deals with questions of restorative justice for victims in Vol. 1 (5) 89-95.

54 See Zehr (1997), who comments that the TRC 'represents an attempt to do justice restoratively, but an incomplete attempt' (p20).

55 The TRC Report Vol. 5 (9) 62 stated: 'Although it was not part of the Commission's mandate to effect reconciliation between victims, the community and perpetrators, there were a number of significant instances where the Commission directly facilitated the beginning of this complex process'.

56 See TRC Report Vol. 5 (9) 38-47.

57 See TRC Report Vol. 5 (9) 42.

58 An example is the Khulumani Support Group, a Gauteng based group with links with neighbouring provinces.

59 TRC Report Vol. 1 (5) 10 states 'Reconciliation is both a goal and a process'.

60 See for instance the apology of the Stellenbosch Presbytery of the Dutch Reformed Church in TRC Report Vol. 5 (9) 55. Sections 57-59 contain apologies from certain white professionals in the judicial, medical, church and business fields.

61 The TRC Report Vol. 5 (9) 101.

62 The TRC Report Vol. 5 (9) 98-108.

63 'In particular the case of Captain Brian Mitchell in the Trust Feed Community north-west of Pietermaritzburg in KwaZulu- Natal. Threatened by the activities of the United Democratic Front (UDF), the local police unit colluded with the IFP to wipe out UDF members. This led to a sequence of atrocities culminating in the Trust Feed massacre in December 1988 which was directly related to the clandestine activities of Captain Brian Mitchell, Station Commander at the New Hanover police station at the time. On his orders, eleven people were killed and two others wounded at a night vigil following the death of a relative. In April 1992, Captain Mitchell was sentenced to death eleven times for his role in ordering the attacks. His sentence was subsequently commuted to life imprisonment in 1994. After serving a prison term of about five years, Captain Mitchell was granted amnesty by Commission in 1997. Captain Mitchell expressed remorse and asked for forgiveness. He pledged to honour the community request to help reconstruct the community he had polarised and destroyed through his clandestine operations. TRC Report Vol. 5 (9) 70-93.

64 See Hamber (1998c) for a discussion of the changing nature of violence, and how human rights violations are committed under a new guise in post-transition societies.

65 Minutes of the conference are available from CSVR, Johannesburg.

66 See also 'TRC Accused of Obscuring the Truth', South African Press Service (SAPA) article, 23 April 1998.

67 The Reconciliation Register was established by the TRC for members of the public to sign and make a personal commitment to advancing reconciliation.

68 TRC Report Vol. 4 (2) 22.

69 This was particularly notable in the mining industry. The TRC Report Vol. 4 (2) 62-72 noted: 'From the early days of the Boer Republics, mining capital played a major role in shaping and driving cheap labour policies. It is regrettable that the Chamber of Mines made no mention in its submission of the active role they played in constructing and managing the migrant labour'.

70 For TRC findings on the judiciary see Vol. 5 (6) 158.

71 The report of the Medical School IRC is pending, as is an evaluation of the process carried out by CSVR. See also TRC Report Vol. 5 (9) 136.

72 See 'Truth Commission's failed, says a former star investigator', at http://www.dispatch.co.za/.

73 See also CSVR/Khulamani Victim Support Group (1998) 'Submission to the Truth and Reconciliation Commission: Survivors' Perceptions of the TRC and Suggestions for the Final Report'. Based on workshops with survivors, this report suggests that many individuals feel that more truth (and in some cases more justice) is necessary for reconciliation or healing to occur.

74 He was sentenced to pay a R10,000 fine (roughly £1,000) or spend 12 months in gaol.

75 See The Guardian, 16 May 1997, for details of Archbishops Tutu's response to ex-president de Klerk's testimony, in which the latter apologised but also described apartheid's rulers as 'good and honourable men', and professed ignorance of atrocities.

76 At a TRC hearing in May 1997 General Magnus Malan became the first senior military chief to apologise for covert operations. See International Herald Tribune, 8 May 1998.

77 'Most believe truth body harmed race relations, survey finds', Business Day, 27 July 1998 at http://www.bday.co.za/98/0727/news/n15.htm; and 'TRC has harmed race relations: survey', SAPA, 27 July 1998 at http://www.truth.org.za/sapa/9807/s980727a.htm. The response of Steven Crawford the TRC webmaster is also interesting in this regard, see 'Lies, Damned Lies, and Statistics' at http://www.truth.org.za/reading/survey.htm.

78 Ferdi Barnard was found guilty in 1998 of the murder of David Webster. He had not applied for amnesty thinking he was safe from prosecution. See 'The Night Ferdi told me he killed Webster'; plus 'And the Gun that could trap Ferdi'.

79 See. Bosset (1995); de Ridder (1197); Hamber (1995a; 1995b; 1996; 1998a) & Winslow (1997).

80 A number of NGOs also voiced these concerns in submissions to the TRC. See CSVR (1995) Submission to the Truth and Reconciliation Commission on Psychological and Social Support for the Truth and Reconciliation Commission, Johannesburg; Coalition of Kwazulu-Natal Mental Health and Human Rights Organisations (1995), Submission made to the Minister of Justice on the Truth and Reconciliation Commission on the Implementation of the Truth and Reconciliation Commission in Kwazulu-Natal, Kwazulu-Natal; Kwazulu-Natal Programme for Survivors of Violence (1995) Submission to the Truth and Reconciliation Commission on Preparing Survivors of Violence for the Truth Commission, Kwazulu-Natal; Mental Health Response (1996) Preliminary Perspectives from the Western Cape. Submission to the Truth and Reconciliation Commission from the Mental Health Response in the Western Cape.

81 See Hamber 1995a.

82 The drafters of the TRC Act, who were themselves lawyers, thought to put in provisions to ensure legal assistance. Psychologists and mental health workers were largely absent from the drafting process.

83 See Hamber (1998a) and de Ridder (1997).

84 TRC Report Vol. 5 (9) 18-19.

85 See the TRC Report's recommendations.

86 The TRC noted the key issue of violence against women. Ms Thenjiwe Mtintso said at the hearing on women in Johannesburg, 'The frightening statistics of violence against women and children which has reached, in my own view, Chairperson, genocide levels, have to be addressed'. TRC Report Vol. 5 (9) 124-126. The TRC final report also notes that torture, coerced confession, deaths in custody and other human rights violations continue to happen in the SA police (Vol. 5 (8) 68).

87 There are ongoing efforts to deal with some of these problems, including the establishment of anti-corruption units and an Independent Complaints Directorate. See also Bruce, D (1998) Towards a Stategy for Prevention: The occurrence of deaths in custody or as a result of police action in Gauteng, April - December 1997.

88 It is estimated that each month 60 deaths occur in custody, or as a result of police action. See Bruce, D 'Concern over deaths in custody', and 'Shroud covers deaths connected to police'. The final report notes that there were 370 deaths in custody or due to police action for April to September 1997 (Vol. 5 (8) 68).

89 SAHRC was launched on 21 March 1996, the 36th anniversary of the Sharpeville Massacre, to promote human rights awareness, investigate violations and advise government on human rights implementation. It has wide-ranging powers of investigation, subpoena of witnesses, search and seizure. It is financed by the Department of Justice and answerable to Parliament.

90 According to the Commission one of the biggest constraints was not interpretation of mandate but the definitive judgement of Mr Justice Corbett, which required the Commission to give anyone against whom a detrimental finding was being contemplated a reasonable opportunity to respond. It made a huge impact on the work of the Commission. Those who may have expected this report to contain a long list of perpetrators of gross violations of human rights will, consequently, be only partially satisfied with what they find in this and other volumes. TRC Report Vol. 2 (1) 168.

91 See TRC Report Vol. 5 (9) 5-17 for examples of such stories/testimony.

92 The TRC Report Vol. 5 (6) 165 says that 'The primary task of the Commission was to address the moral, political and legal consequences of the apartheid years. The socio-economic implications are left to other structures - the Land Commission, the Gender Commission, the Youth Commission and a range of reform processes in education, social welfare, healthcare, housing and job creation. Ultimately, however, because the work of the Commission includes reconciliation, it needs to unleash a process that contributes to economic developments that redress past wrongs as a basis for promoting lasting reconciliation. This requires all those who benefited from apartheid, not only those whom the Act defines as perpetrators, to commit themselves to the reconciliation process.' The inter-relationships, however, between these bodies remain incomplete.

93 See TRC Report Vol. 5 (6) 53.

94 See TRC Report Vol. 5 (6) 42.

Appendix A: Fifteen truth commissions compared

Table 1
Fifteen Truth Commissions in Chronological Order
Country Name of Truth Commission Title of report and publication date Date of commission Dates covered Sponsored by
Uganda Commission of Inquiry into the Disappearances of People in Uganda since the 25th January, 1971 Report of the Commission of Inquiry into the Disappearances of People in Uganda since the 25th January, 1971, 1975 1974 25 January 1971 - 1974 President
Bolivia Comisión Nacional de Investigación de Desaparecidos (National Commission of Inquiry into Disappearances) Did not produce a final report 1982 - 1984 1967 - 1982 President
Argentina Comisión Nacional para la Desaparición de Personas (National Commission on the Disappearances of Persons)('The Sábato Commission' or 'CONADEP') Nunca Más
(Never Again), 1985
1983 - 1984 1976 - 1983 President
Uraguay Comisión Investigadora sobre la Situación de Personas Desaparecidas y Hechos que la Motivaron (Investigate Commission on the Situation of 'Disappeared' People and Its Causes) Informe Final de la Comisión Investigadora sobre la Situación de Personas Desaparecidas y Hechos que la Motivaron (Final Report of the Investigative Commission on the Situation of the 'Disappeared' People and its Causes) 1985 1973 - 1982 Parliament
Zimbabwe Commission of Inquiry Report kept confidential 1985 1983 President
Uganda Commission of Inquiry into Violations of Human Rights Still in operation 1986 to present December 1962 - January 1986 President
El Salvador Comisión de la Verdad Para El Salvador (Commission on the Truth for El Salvador) De la Locura a la Esperanza (From Madness to Hope), March 15, 1993 1992 - 1993 January 1980 - July 1991 United Nations
Rwanda International Commission of Investigation on Human Rights Violations in Rwanda Since October 1, 1990 Report of the International Commission of Investigation on Human Rights Violations in Rwanda Since October 1, 1990 - March 1993 1993 October 1990 - 1993 Four international NGOs
South Africa
(ANC)
Commission of Enquiry into Certain Allegations of Cruelty and Human Rights Abuse Against ANC Prisoners and Detainees by ANC Members ('The Motsuenyane Commission') Reports of the Commission of Enquiry into Certain Allegations of Cruelty and Human Rights Abuse Against ANC Prisoners and Detainees by ANC Members August 20, 1993 1993 1979 - 1991 Afican National Congress
Ethiopia Office of the Special Prosecutor Still in operation 1993 1974 - 1991 President
Philippines Presidential Committee on Human Rights Did not complete report 1993 - present 1972 - 1986 President
Chile Comisión Nacional para la Verdad y Reconciliación (National Commission on Truth and Reconciliation)('The Rettig Commission') Informe de la Comisión de la Verdad y Reconciliación (Report of the National Commission on Truth and Reconciliation) 1991 1986 - 1987 (did not finish) 11 September 1973 - 11 March 1990 President
Chad Commission d'Enquette sur les Crimes et Détournements Commis par l'Ex-Président Habré, ses co-Auteurs et/ou Complices (Commission of Inquiry on the Crimes and Misappropriations Committed by the Ex-President Habré, his Accomplices and/or Accessories Rapport de la Commission (Report of the Commission) 1990 - 1991 1982 - 1990 President
South Africa
(ANC)
Commission of Enquiry into Complaints by Former African National Congress Prisoners and Detainees ('The Skeweyiya Commission') Report of the Commission of Enquiry into Complaints by Former African National Congress Prisoners and Detainees October 1992 1991 - 1992 1979 - 1991 African National Congress
Germany Enquet Kommission Aufarbeitung von Geschiche und Folgen der SED-Diktator in Deutschland (Study Commission for the Assessment of the History and Consequences of the SED Dictatorship in Germany) Still in operation 1992 - present 1949 - 1989 Parliament

 

Table II
A Comparison of Resources and Responsibilities
Fifteen Truth Commissions - Listed in Chronological Order
Country Number of cases presented to commission1 No. of cases or events investigated in depth2 Duration of commission's work Period covered by commission No. of commissioners No. of staff
Uganda 1974 308 disappeared - 1 year 3½years 4 -
Bolivia 155 disappeared 0 2-3 years 15 years 8 6
Argentina 8,960 disappeared, unspecified no. of victims of torture or prolonged detention 03 9 months 7 years 13 approx 60
Uruguay 164 disappeared 0 7 months 11 years approx 9 -
Zimbabwe - - several months 2 years - -
Uganda 1986 ~ ~ ~ 24 years 6 2-3
Philippines - - 1 year (disbanded before finishing) 15 years 7 0
Chile 3,428 disappeared, killed, tortured to death, or kidnapped 4 2,920 9 months 16½years 8 60
Chad 3,800 killed, unspecified no. of victims of torture, arbitrary detention 0 10 months 8 years 12-16 05
South Africa
(ANC I)
32 survivors of torture and abuse in detention camps 0 7 months 11½ years 3 -
Germany ~ ~ ~ 40 years 27 -
El Salvador 22,000 killed, tortured, or kidnapped 32 8-9 months 12 years 3 15-456
Rwanda 2,000 killed, unspecified no. of attacks on civilians, kidnappings 20 3 months (2 weeks in country) 2¼ years 10 07
South Africa
(ANC II)
29 disappeared, 19 'complaints' and 11 'defendants' presented their cases re: detention camp abuses 20 disappeared
19 complaints
11 defendants
8 months 11½ years 3 0
Ethiopia ~ ~ ~ 17 years 1 approx 30


1 These numbers provide general indications of the number of cases that were reported to each commission. For some commissions, numbers are not exact. Commission mandates have varied as to the types of human rights abuses is estimated to be far higher than the number reported to the commission.
2 The number of individual cases (such as a disappeared person or victim of torture) or events (such as massacre) that were investigated at greater depth and reported by the commission.
3 Some reports (such as Argentina, Chad and ANC I) describe at length the overall nature of human rights violations during the period at hand, including extensive quotes from testimony provided by the commission and back-up documentation, but do not enter into the investigation of any one case in depth.
4 508 of these 3,428 were deemed to fall outside of the mandate of the commission
5 The twelve (and later sixteen) 'members of the commission' include secretaries and clerks
6 Including approximately 20 temporary staff hired for one to three months for data processing and data entry
7 The Rwandan Commission hired only translators and two short-term consultants
~ Commission still in process
- Not known
Source: Hayner, 1994 op cit.

Appendix B: Reference list and further reading

Africa Watch (1992) 'South Africa Accounting for the Past: The Lessons for South Africa from Latin America', News From Africa Watch, 4(11), 1-28.

Asmal, K, Asmal, L and Roberts, RS (1996) Reconciliation Through Truth: A Reckoning of Apartheid's Criminal Governance, Cape Town: David Philip.

Baranyi, Stephen (1998) The People's Peace: Civil organisations and peace processes in the South, London: CIIR.

Boraine, A, Levy, J and Scheffer, R (eds) (1994) Dealing with the Past: Truth and Reconciliation in South Africa, Cape Town: IDASA.

Boraine, A and Levy, J (eds) (1995) The Healing of a Nation?, Cape Town: Justice in Transition.

Bosset, M (1995) 'Co-existence and Community', in Boraine, A and Levy, J (eds) (1995) The Healing of a Nation?, Cape Town: Justice in Transition.

Bronkhurst, D (1995) Truth and Reconciliation: Obstacles and Opportunities for Human Rights, Amsterdam: Amnesty International Dutch Section.

Brysk, A (1994) 'The Politics of Measurement: The Contested Court of the Disappeared in Argentina'. Human Rights Quarterly 16, pp. 676-692.

Burton, M (1998) 'The South African Truth and Reconciliation Commission: Looking Back, Moving Forward, Revisiting Conflict, Striving for Peace' in B. Hamber (ed) Past Imperfect: Dealing with the Past in Northern Ireland and Societies in Transition. Derry/ Londonderry: University of Ulster/INCORE.

Carver, Richard (1990) 'Called to Account: How African governments investigate human rights violations', African Affairs 98 (356).

CIIR (1996) Licence to Kill: Impunity in Latin America, London: CIIR.

CSVR Project on Truth Commissions, downloadable articles at http://www.csvr.org.za/res/mediart.htm#TRC; publications on the TRC at http://www.csvr.org.za/res/csvr/pubstrc.htm

CSVR/Khulumani Support Group (1998) Submission to the Truth and Reconciliation Commission: Survivor's Perceptions of the TRC and Suggestions for the Final Report. Johannesburg, Centre for the Study of Violence and Reconciliation.

De Ridder, T (1997) 'The Trauma of Testifying: Deponents' difficult healing process', Track Two, Vol. 6, Nos. 3&4, pp. 30-33.

Frost, B (1998) Struggling to Forgive: Nelson Mandela and South Africa's Search for Reconciliation, London: HarperCollins.

Goldblatt, B and Meintjies, S (1997) 'Gender and the Truth and Reconciliation Commission', submission to the TRC.

Hamber, B (1995a) Dealing with the Past and the Psychology of Reconciliation: A Psychological Perspective of the Truth and Reconciliation Commission. Address at the 4th International Conference on Psychology and Peace, Cape Town, June 1995.

Hamber, B (1995b) Do Sleeping Dogs Lie? The Psychological Implications of the Truth and Reconciliation Commission in South Africa, Johannesburg: CSVR.

Hamber, B (1996) 'Sleeping Dogs Do Not Lie', Recovery, Vol. 1, No. 3, Kwazulu-Natal: Children's Inquiry Trust.

Hamber, B (1998a) 'The Burdens of Truth: An Evaluation of the Psychological Support Services and Initiatives Undertaken by the South African Truth and Reconciliation Commission', American Imago, Vol. 55, No. 1, Spring, pp. 9-28.

Hamber, B (1998b) 'Dr Jekyll and Mr Hyde: Problems of Violence Prevention and Reconciliation in South Africa's Transition to Democracy', in E Bornman, R van Eeden and M Wentzel (eds) Violence in South Africa, pp. 349-370, Pretoria: Human Sciences and Research Council.

Hamber, B (1998c) 'Living with the Legacy of Impunity: Lessons for South Africa about Truth, Justice and Crime in Brazil', Unisa Latin American Report 13(2), July-December 1998, pp. 4-16.

Hamber, B (1998c) 'Reflecting on the Relationship between Transformation, Reconciliation and Socio-economic Change in South Africa', 16 June 1998. Medico-International Interview.

Hamber, B (1998d) Repairing the Irreparable: Dealing with the double-binds of making reparations for crimes of the past, Paper presented at the African Studies Association of the UK Biennial Conference 'Comparisons and Transitions' at School of Oriental and African Studies, University of London, London, 14-16 September 1998.

Hamber, B (1998e) (ed) Past Imperfect: Dealing with the Past in Northern Ireland and Societies in Transition, Derry/ Londonderry: University of Ulster/INCORE.

Hamber, B, Mofokeng T & Simpson G (1997) Evaluating the Role and Function of Civil Society in a Changing South Africa. The Truth and Reconciliation Commission as a Case Study, paper presented at a seminar organised by CIIR, November 1997.

Hayner, PB (1994) 'Fifteen Truth Commissions 1974 to 1994: A Comparative Study', in Human Rights Quarterly, 16, pp. 597-655.

Hayner, PB (1996) 'Commissioning the Truth: Further Research Questions' in Third World Quarterly, Vol. 17, No. 1, pp. 19-29.

Ignatieff, M (1998) The Warrior's Honour: Ethnic War and the Modern Conscience, London: Chatto and Windus.

INCORE Dealing with the Past at http://www.incore.ulst.ac.uk/publications/conference/thepast/index.html (printable articles).

INCORE Thematic Guide to Truth and Reconciliation at http://www.incore.ulst.ac.uk/cds/themes/truth.html (printable articles).

Mamdani, M (1997) 'Reconciliation Without Justice' Southern African Political and Economic Monthly, 10 (6) pp. 22-25.

Media and the TRC (1997). 'The media and the TRC: Is the truth in telling or in the tale?' Rhodes Journalism Review, May 1997.

Minutes from the 'From Truth to Transformation Conference', convened by CSVR in Johannesburg, 21-22 April 1998. Minutes published by CSVR, PO Box 30778, Braamfontein, 2017, Johannesburg, South Africa.

Nino, C.S. (1991) 'The Duty to Publish Past Abuses of Human Rights put in Context: The Case of Argentina', Yale Law Journal 100, pp. 2537-2615.

Roht-Arriaza, N (1995) 'Conclusion: Combating Impunity' in N Roht-Arriaza (ed) Impunity and Human Rights in International Law and Practice, New York: Oxford University Press.

Rolston, B (1996) 'Turning the page without closing the book' in Wounded Nations, Broken Lives: Truth Commissions and War Tribunals, Index, No 5.

Sarkin, J (1996) 'The trials and tribulations of South Africa's Truth and Reconciliation Commission', South African Journal on Human Rights, 12, No. 4, pp. 617-640.

Statman, JM (1995) 'Exorcising the Ghosts of Apartheid: Memory, Identity and Trauma in the "New" South Africa'. Paper presented at the 18th Annual Meeting of International Society of Political Psychology, Washington DC.

Transitional Justice Bibliography at http://userpage.fu-berlin.de/~theissen/biblio/

Truth and Reconciliation Commission. Website: http://www.doj.gov.za/trc/index.html

van der Merwe, H (1998) The South African Truth and Reconciliation Commission and Community Reconciliation: A Case Study of Duduza. Occasional Paper, Johannesburg: CSVR.

van der Merwe, H, Dewhirst, P and Hamber, B (1998) The Relationship Between Peace/Conflict Resolution Organisations and the TRC: An Impact Assessment. Occasional Paper, Johannesburg: CSVR.

Weschler, L (1990) A Miracle, A Universe: Settling Accounts with Torture, Penguin Books.

Wilson, Richard A (1997) The People's Conscience? Civil groups, peace and justice in the South African and Guatemalan transitions, London: CIIR.

Winslow, T (1997) 'Reconciliation: The Road to Healing? Collective good, individual harm?', Track Two, Vol. 6, Nos. 3&4, pp. 24-26, pp. 40-42.

Zalaquett, J (1993) 'Introduction to the Report of the Chilean National Commission on Truth and Reconciliation', in Report of the Chilean National Commission on Truth and Reconciliation, Vol. 1, London: University of Notre Dame Press.

Zehr, H (1997) 'Restorative Justice: When justice and healing go together', Track Two, Vol. 6, Nos. 3&4, p20.

Appendix C: Speakers at the conference, From Truth to Transformation, 18-19 April 1998, Johannesburg, South Africa

Cathy Albertyn Commission on Gender Equality
Mahlengi Bhengu Youth Commission
Alex Boraine Truth and Reconciliation Commission
Glenn Goosen Ex-TRC investigator
Brandon Hamber Centre for the Study of Violence and Reconciliation
Jody Kollapen South African Human Rights Commission
Justice Pius Langa Constitutional Court
Eddie Makua South African Council of Churches
Mahmood Mamdani Centre for African Studies, University of cape Town
Nomvenda Mathiane Business Day
Hlengiwe Mkhize Truth and Reconciliation Commission
Ester Mujawayo Rwandan Victims Support Group
Dumisa Ntsebeza Truth and Reconciliation Commission
Alegria Nyoka Khulumani Support Group
Blade Nzimande Member of Parliament
Max Du Preez Truth and Reconciliation Commission Special Report
Graeme Simpson Centre for the Study of Violence and Reconciliation
Yasmin Sooka Truth and Reconciliation Commission
Nomfundo Walaza Trauma Centre, Cape Town
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