Neither too much, nor too little justice: Amnesty in the South African context

Amnesty, as an instrument of political transition in the South African context, needs to be evaluated in terms of what was possible at the time and to what extent it constitutes impunity. Jose Zalaquett, a Commissioner on the Chilean National Truth and Reconciliation Commission, reflecting on the heady days following the 1973 Chilean coup d’état notes: ‘Eighteen years later, we all have come to realise that under changed circumstances, a less striking form of courage is called for. It is a courage to forgo easy righteousness, to learn how to live with real-life restrictions, but to seek nevertheless to advance one’s most cherished values day by day to the extent possible. Relentlessly. Responsibly,’ (Zalaquett, 1992).

The Final Report of the Amnesty Committee of the South African Truth and Reconciliation Commission is due for release any day now. It will need to be carefully assessed, and given the academic cottage industry that has emerged around the world concerning the TRC, it will be uncompromisingly dissected. The Institute for Justice and Reconciliation, among other organizations and academic institutions, is already involved in assessing the amnesty process in South Africa.

The genesis of amnesty can formally be traced to a meeting of the National Executive Committee of the ANC in August 1993. The report of the Motsuenyane Commission on the imprisonment and death of a number of people in ANC detention camps, who were suspected by the ANC security structures of being spies and/or agents of the South African government, was under discussion. Some argued that, given the legitimate nature of the struggle against apartheid, such actions should be tolerated if not justified. Justice Albie Sachs tells us that the National Executive was divided on how to proceed. He reports Pallo Jordan, now a leading ANC member of parliament, as saying: ‘Comrades, I’ve learnt something very interesting today. There is such a thing as regime torture, and there is ANC torture, and the regime torture is bad and the ANC torture is good; thank you for enlightening me.’ ‘But what about the decades of murder, mutilation and torture committed by the apartheid regime?’ others asked, (Sachs, 1998). In this context the notion of a Truth Commission was born, with the intent to investigate and acknowledge gross violations of human rights on all sides of the conflict.

Equally important was the need for amnesty to ensure a peaceful transition from the old to the new. The need to ensure the support of the security forces in safeguarding the elections and the emerging democracy against those intent on destroying it was pressing. The fear of prosecution had to be negated, partly to ensure their loyalty. Blanket amnesty would, at the same time, have negated the principle of institutional and personal accountability. The outcome was the present amnesty clause in the TRC Act, which requires public acknowledgment, under cross examination, of past atrocities in return for amnesty.

It was all a case of neither too much, nor too little justice. The former held the danger of precipitating a backlash from perpetrators capable of undermining the democratic process in its earliest and most vulnerable days. It further threatened to focus the attention of the nation on the past. The latter could militate against the ability of victims and survivors to come to terms with the past – a matter that could come back to haunt the nation. Not least, it would not have helped restore confidence in the rule of law and the need for accountability so desperately needed in an emerging democracy.

What next?
This brief reminder of the origins of the TRC raises the poignant question of what is to happen now that the amnesty hearings are over and the committee is about to release its report. Ought prosecutions to follow for those who did not receive amnesty or who chose not even to apply for amnesty? The nation faces the same kind of dilemma that confronted it in the negotiated settlement – the need for neither too much nor too little justice. To launch the country into a witch-hunt, designed to track down every perpetrator of human rights violations – on all sides of the political divide -- could plunge the nation into a series of political trials, which the TRC process was designed to circumvent. The threat of insurrection is no longer a real one, as it was on the eve of the 1994 elections. The exercise would, however, scarcely promote either nation-building or national reconciliation. Trials are also costly things.

A general amnesty, on the other hand, would not only undermine the carefully balanced legal and moral compromise between impunity and prosecution that bolstered the TRC initiative – it would also raise very serious questions as to what to say to those who chose to bare their souls to the nation in making full disclosure as a condition for amnesty. Not all who applied for amnesty were successful. Of the approximately 7,000 amnesty applications received by the Commission, approximately 77% were refused and approximately 16% granted. The remaining applications were either withdrawn or constituted duplications.

Some applicants, who received amnesty, disclosed a minimum amount of information in a callous act designed to escape prosecution. Others may have lied. In many instances the ‘conspiracy of silence’ surrounding past atrocities was not adequately uncovered. Some amnesty hearings, however, contributed in a significant way to the acknowledgment of past abuse. Suffice it to say, sufficient information was disclosed through the amnesty process together with victim / survivor hearings to ensure that no South African can ever again deny knowledge of past atrocities, or deny that they happened.

So where to now? Is there a third way? If so, it is a messy, imprecise and pragmatic one. It would presumably involve some prosecutions, without making this endeavour the primary occupation of the office of the national director of public prosecutions. It would not involve what some have called ‘the duty to prosecute’ all offenders, while requiring attorneys general to ensure that the concerns expressed in the postamble of the Interim Constitution which gave rise to the TRC be taken into account. This would involve a sense of prosecutorial discretion that seeks to:

… transcend the divisions and strife of the past which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and the legacy of hatred, fear, guilt and revenge. These can now be addressed on the basis that there is a need for understanding but not vengeance, a need for reparation but not for retaliation, a need for ubuntu and not victimisation.
Human rights purists will, no doubt, cry foul. Questions correctly abound: Who will be prosecuted and who not? Who is to make that decision? What role will influence, power and factors of political rapprochement play in prosecutorial discretion? Will it not involve a simple withering away of the will to prosecute past offenders? Does it mean that a chosen group of offenders, those with the capacity to make waves, will escape the law while others will bear its brunt? Will it not amount to a blanket amnesty by default -- an entrenchment of impunity in a society that struggles to establish the rule of law?
It is very messy. It would at the same time confront perpetrators with the threat of prosecution. It would require attorneys general to investigate clear cases of perpetration. It would not constitute statutory or legal impunity. It would constitute a reasonable balance between human rights that affirm the right of an individual and society to find redress for past wrongs, as well as the right of the nation to cobble together an ongoing route for political coexistence and peace. Bluntly put, the South African transition is not yet over. Both too much prosecution and too little prosecution are likely to shape the nature of where we go from here in a disastrous manner. South Africans, it seems, may well be asked to make yet a further historic compromise for the sake of the common good.

Three options
South Africans continue to live with the impact of the past – including the context that gave rise to the need for amnesty in the first place. The country was on the brink of self-destruction in the late 1980s. Certain hard realities needed to be faced concerning the past. The outcome of the negotiations saw the security forces remaining under the control of, or loyal to, the apartheid regime. Together with their political allies, they were powerful enough to undermine the political transition. The emerging state was, in turn, faced with insuperable practical difficulties that made it impossible to punish more than a small number of those responsible for past atrocities -- difficulties that included a lack of adequate legal infrastructure and economic resources to pay for endless trails. The resultant negotiations produced three options:

ö Blanket or General Amnesty. This was strongly motivated by the former government led by Mr FW de Klerk, as well as the military and the police. The option was rejected.

ö Trials and Prosecutions. This option was a serious ingredient in the thinking of the liberation movements in South Africa. Suffice it to say, there are still many in South Africa who would argue that had the anti-apartheid struggle ended in the defeat of the South African regime this would have been the preferred option. Ironically it is the forced compromise between the forces of liberation and the forces of apartheid that provided an alternative way to dealing with the atrocities of the past.

ö A Truth Commission. This was the third option and it was the one that gained majority support. The goal was to seek the truth concerning victims and perpetrators, a restoration of dignity for victims and survivors, a limited amnesty and a search for healing and reconciliation. Justice Richard Goldstone put it this way: ‘The decision to opt for a Truth and Reconciliation Commission was an important compromise. If the ANC had insisted on Nuremberg-style trials for the leaders of the former apartheid government, there would have been no peaceful transition to democracy, and if the former government had insisted on a blanket amnesty then, similarly, the negotiations would have broken down. A bloody revolution sooner rather than later would have been inevitable. The Truth and Reconciliation Commission is a bridge from the old to the new,’ (Goldstone, 1997).

But what of the Rome Statute of the International Criminal Court (ICC), involving a duty to prosecute perpetrators of gross violations of human rights? This is a development that surely represents a major triumph in the fight against political crime, genocide and other forms of radical evil. An uncompromising commitment to prosecution is at the same time a little frightening. Frightening because it threatens to shut down a space within which truth commissions offer an alternative and sometimes more efficient and more effective way of restoring the moral order of society in a manner that makes for peaceful coexistence.

The South African Truth and Reconciliation process can be faulted in many ways – not least in its failure to pressurise the state to pay reparations. Opportunities have been missed – not least its failure to be more active in seeking to bridge the gap between the rich and poor. It did not work hard enough at promoting reconciliation. It could have done more to ensure that its recommendations were addressed by government and by society as a whole. And yet the question remains: Given the South African context in the late 1980s, was there a viable alternative to the TRC? Was Judge Goldstone correct in suggesting that the Commission averted a violent revolution – which could have ended in the kind of Armageddon that would have left no benefit for anyone?

The Secretary-General of the United Nations, Kofi Annan, spoke of the proposed International Criminal Court and the South African Truth and Reconciliation Commission in his graduation address to the University of the Witwatersrand, on the occasion of the conferment on him of an Honorary Doctor of Laws Degree. Responding to the suggestion that the implementation of the Court may in future undermine initiatives in peace-making as undertaken by the TRC, he stated:

‘The purpose of that clause in the Statute [which allows the Court to intervene where the state is ‘unwilling or unable’ to exercise jurisdiction] is to ensure that mass-murderers and other arch-criminals cannot shelter behind a State run by themselves or their cronies, or take advantage of a general breakdown of law and order. No one should imagine that it would apply to a case like South Africa’s, where the regime and the conflict, which caused the crimes, have come to an end, and the victims have inherited power. It is inconceivable that, in such a case, the Court would seek to substitute its judgement for that of a whole nation, which is seeking the best way to put a traumatic past behind it and build a better future’ (Annan, 1998).

His words suggest space for both ICC and TRC-type initiatives. It is at the interface of the two that retributive and restorative justices meet. It is also here that peace making needs to be given a chance in a violent world that all too often chooses war over peace and vengeance rather than restoration. In brief, the relationship between the ICC and truth commissions should not be viewed as mutually exclusive. Retributive justice, symbolised by the ICC, and restorative justice, represented by truth commissions, ultimately have similar goals. Provided that the goals of each are recognized and honoured, a non-prosecutorial truth-seeking process and prosecutions can be of mutual benefit to one another.

References
Annan, Kofi (1998). Address delivered at the Witwatersrand University Graduation Ceremony, Johannesburg, September.
Goldstone, Richard (1997). The Hauser Lecture, New York University, January.
Jacques, Genevieve (2000). Beyond Impunity. Geneva: WCC.
Sachs, Albie (1998). Fourth DT Lakdawala Memorial lecture, New Delhi, December.
Zalaquett, Jose (1992). ‘Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations,’ Hastings Law Journal, August.

Charles Villa-Vicencio is Executive Director of the Institute for Justice and Reconciliation in Cape Town, South Africa. He was the National Research Director of the South African Truth and Reconciliation Commission and prior to that he was Professor of Religion and Society at the University of Cape Town. The Institute for Justice and Reconciliation seeks to bring justice and reconciliation into creative unity and it addresses a range of legal, ethical, psychological, social analytical and theological issues, with communication and media at the centre of its agenda.