What the TRC won't tell you

Mired in controversy almost from the day of its establishment, the Truth and Reconciliation Commission is set to generate even more contention as it enters the final phase of its existence. One factor alone ensures that: an amendment to the TRC founding law, the Promotion of National Unity and Reconciliation Act, extending its operations indefinitely. That ensures that its work will converge with campaigning by the political parties contesting next year’s general and provincial elections.

The result is predictable. Discord over the TRC will be amplified as political parties seek to use its proceedings to score points against their rivals or to defend themselves against damaging disclosures. Whether it likes it or not, the TRC will inevitably add to the cacophony of electioneering and compound its already difficult mandate to promote reconciliation.

The TRC’s life has been extended three times since its formal establishment in December 1995: in June 1997, when it availed itself of the option in the enabling law to extend its existence for six months; in December 1997, when a legislative amendment gave it a further six months to complete its mandate; and in June this year. The amendment, approved by Parliament on June 10, prolongs the life of the TRC from June 30 to October 31, the revised date on which its must submit an interim report on “the truth” of South Africa’s past conflict to President Nelson Mandela. On that date the TRC in its present form will be suspended. But the same amendment enables the amnesty committee — on which several TRC commissioners serve — to continue assessing applications for amnesty from self-confessed perpetrators of human rights abuses until it completes its task. The amendment simultaneously empowers the amnesty committee to fulfil TRC functions, including the potentially disputatious task of appraising applications for reparations from victims of past human rights abuses.

When the amnesty committee completes its mandate on an undetermined, and perhaps indeterminable, future date, the TRC per se will be reconvened by presidential proclamation so that it can write its final report and present it to President Mandela or, more likely, to his successor. An estimated 2500 amnesty applications are outstanding, of which about 1000 involve gross human rights abuses. By law the amnesty committee will have to hold public hearings into these cases before it can grant or refuse amnesty to the applicants. Such hearings, in which applicants and those opposing their applications are entitled to legal representation, take time. TRC spokesperson Christelle Terreblanche says that it will take at least a year before the last public hearing is held. The National Party’s Jacko Maree thinks it could take two. Either way amnesty committee hearings will vie for attention with party propagandists seeking to win voters to their cause in next year’s election, which has to be held between May 1 and July 31.

The TRC is largely modelled on the Chilean Truth Commission whose raison d’être was to reconcile supporters and opponents of the military dictator, Augusto Pinochet, and bolster the transition to democracy. An important part of the latter’s success, however, derives from the fact that its life was brief. If the process of establishing truth is drawn out, there is a risk that it will become counter-productive and open rather than heal past wounds. The Chilean truth commission completed its investigation and submitted its report within a year, but the TRC may still be in existence at the beginning of the next millennium.

The TRC has already demonstrated its capacity to provoke discord. A chorus of protest greeted the amnesty committee’s decision late last year to grant amnesty to 37 ANC leaders, including Deputy President Thabo Mbeki, without requiring them to specify the actions for which they were seeking amnesty, as laid down in the TRC founding law. As Dene Smuts, the Democratic Party MP, aptly remarked, Mbeki and his comrades sought amnesty for everything in general and nothing in particular. Since then, of course, in apparent reaction to strenuous protests from opposition parties, the TRC has been granted a court ruling overturning the amnesty committee’s decision.

There are other high-profile cases that are extremely sensitive. One comes to mind immediately: the applications for amnesty from Janus Waluz and Clive Derby-Lewis for assassinating the South African Communist Party leader Chris Hani. Naturally the ANC and its communist party ally have vigorously opposed their applications. The experienced George Bizos, SC, is representing the SACP and Hani family in their bid to deny amnesty to the assassins. This case will be a litmus test of the even-handedness of the committee. Brian Mitchell was granted amnesty for his part in the Trust Feed massacre and, more recently, the three APLA fighters who murdered 11 worshippers when they attacked St James’ Church in Cape Town, have had their amnesty applications accepted. With such precedents, the committee’s decision on Waluz and Derby-Lewis will be particularly salient in the run up to the election.

But can the commission as constituted be even-handed? The pro and anti-Pinochet forces were equally balanced on Chile’s truth commission. Of the eight commissioners, four were drawn from the old military-dominated regime and four from the new, democratic Chile. That is not the case in South Africa. As Professor Hermann Giliomee of the University of Cape Town has observed, the 17 TRC commissioners are overwhelmingly “pro-struggle”, meaning dedicated opponents of the previous government. A glance at the list substantiates Giliomee’s point. Not a single commissioner can be categorised as a representative of either the National Party or the Inkatha Freedom Party. The only original commissioner with links to Afrikaner nationalism is Chris de Jager. He has since resigned, accusing the TRC of bias. He now serves on the amnesty committee, presumably because he thinks it is less biased or more open to legal argument since it has to grant amnesty in accordance with the Promotion of National Unity and Reconciliation Act.

The preponderance of pro-struggle commissioners has made the TRC suspect in the eyes of people who supported the old regime or who, like Inkatha members, have been castigated as its surrogates or puppets. These suspicions have skewed the balance of those applying for amnesty. Figures supplied by Martin Coetzee, executive secretary of the amnesty committee, show that ANC supporters account for easily the largest number of people seeking amnesty. Of the 1700 applications for amnesty for gross human rights abuses (including murder, torture and kidnapping) the breakdown in round figures is: 750 from the ANC, 350 from members of the former security forces, 230 from the Pan Africanist Congress, 200 from Inkatha, and 50 from the Afrikaner Weerstandsbeweging. The remainder are made up of a miscellany of applicants. Predictably the ANC is the prime beneficiary of the process. Of the 75 successful applicants, the ANC again accounts for the largest number: 27 against seven for the AWB, five for the security forces and three for Inkatha.

The same kind of imbalance appears to apply to hearings by the human rights violations committee. Judging by the TRC’s report on the first six months of its existence, the overwhelming number of depositions to the human rights violations committee identify the security forces as the prime perpetrators of human rights abuses. There is only minimal evidence about the ANC-led people’s war, the murder of South Africans deemed to be “enemies of the people” or the ANC’s use of violence to assert its hegemony over rival political movements in the black community, including various formations of the black consciousness movement and, of course, Inkatha.

Coetzee offers a personal opinion, as distinct from an official explanation, for the imbalance: people with ANC affiliations were less fearful and suspicious of the TRC while those of different ideological persuasion lacked the same trust.
To the “pro-struggle” profile of the TRC commissioners must be added the repeated insistence of its chairman, Desmond Tutu, that he is not morally neutral on apartheid but tries to be even-handed in his capacity as chairman. To many observers that is a contradiction in terms: having declared for one side how is it possible for Tutu to be even-handed and, as important, to persuade the general public, including those members who are opposed to the ANC, that he is? Alex Boraine, deputy TRC chairman, insists that to declare abhorrence of apartheid does not exclude an even-handed approach when dealing with gross human rights violations. “The Act makes it very clear that murder is murder is murder,” he says, “and that is the approach we have adopted throughout.”

Yet while the TRC has investigated the role of the State Security Council (SSC) in developing a counter-insurgency strategy against the ANC-led rebellion in the 1980s, there has been no equivalent investigation into the parallel ANC organisation, the Political Military Council (PMC) which planned the revolutionary war against the minority regime. The TRC has pursued the question of whether the SSC, and the political leaders who served on it, sanctioned the murder of opponents of the old regime. But it has shown far less energy and commitment establishing whether members of the PMC were culpable of atrocities committed in the ANC prison camps in Angola and for the attacks on civilians in South Africa. Former President P.W. Botha and members of his cabinet have been subpoenaed to account for their actions; no one of equivalent rank in the ANC has been summoned to appear before the TRC.

Boraine offers a twofold explanation for the commission’s failure to investigate the PMC’s role in the revolutionary war and its culpability, if any, for executions and torture in its detention camps. The first is that the ANC “gave very full information” to the TRC in its second, supplementary, submission of May 1997. The second is that the ANC operated outside South Africa at the time and the TRC was therefore unable to obtain access to its documentation in the same way that it has been able to “secure all the minutes of the SSC meetings”. The import of Boraine’s second point, contained in a faxed reply to questions, is unclear. One interpretation is that the TRC is unable to formulate precise questions because it does not have the detailed information that it has obtained on SSC proceedings. Against that, however, it can be argued that lack of precise information reinforces the case for a hearing in which members of the PMC could be asked to provide the missing details.

Another factor — for which the TRC cannot be blamed — has contributed to the apparent imbalance in its proceedings. Special units have conducted thorough investigations into the role of former security forces in the assassination of political foes of the previous government, but similar investigations of the role of ANC fighters in murdering their opponents have not been undertaken.

An investigation unit headed by Frank Dutton into the massacre at KwaMakhutha in January 1987 led to the indictment of the former defence minister, Magnus Malan, together with several former generals and the deputy secretary-general of the IFP. Another investigation unit headed by no less a person than attorney-general Jan d’Oliveira led to the successful prosecution for murder of Eugene de Kock, former commander of the dreaded police unit at Vlakplaas, and former Civil Co-operation Bureau operative Ferdi Barnard. These sensational trials sent a clear message to former security force men: if they did not apply for amnesty, there was a real possibility that they would end up facing serious charges in court. But there has been no similar pressure on ANC leaders. D’Oliviera admits that a unit established under his deputy, Paul Fick, to investigate the alleged involvement of ANC fighters in atrocities such as the Pretoria Church Street bombing of May 1983, exists on paper only. D’Oliviera’s explanation is that many ANC suspects pre-empted the issue by applying for amnesty. But that raises again the issue of the TRC’s pro-struggle profile: ANC fighters felt confident that their applications for amnesty would succeed; former security force men and former minister of law and order, Adriaan Vlok, had to be flushed out and driven to the amnesty committee by the threat of prosecution. The absence of vigorous investigation into the ANC’s involvement into alleged criminal activities has made life a lot easier for its political “big shots” (to borrow Mandela’s phrase).

Suspicions about the TRC’s moral and political preference for the ANC over rival parties are manifest in the findings of a MarkData survey. It shows that a minority of whites, coloureds and Indian believe that the commission is fair and unbiased. While a clear majority of blacks believe that it is fair and unbiased, more than a third do not endorse that view. Of those who think that the TRC prefers one party above its rivals, the ANC is the most frequently named party. Critically for the TRC’s mandate to promote national unity and reconciliation between former adversaries, the proportion of people who think that it will either create hostility (27 per cent) or make little difference (23 per cent) is larger than the proportion who believe it will bring South Africans closer together (40 per cent).

The situation is compounded by fears that the TRC’s final report will form the basis of a new official history, one which will sanitise or even sanctify the ANC and demonise parties which are associated in any way with the old order. These could include the NP, the Freedom Front, the IFP (for participating in the bantustan system) and perhaps even the Democratic Party (for providing a mantle of legitimacy to the old regime by voicing opposition to apartheid within narrow parameters). These fears originate in part from an article by TRC commissioner Richard Lyster. Emphasising his concern that the nation should not be left with “a number of contradictory versions of our history” that could serve factional interests, he has identified the TRC’s final task as providing the government with a “publicly sanctioned history” which “can be taught in our schools”. The premise of his argument is that the TRC represents a wide spread of ideological views. His premise is faulty. The Inkatha MP Abraham Mzizi summed up the suspicions of many when he described the TRC as the “Truth Revision Commission”.

Despite all these reservations, the TRC has done valuable work in exposing past atrocities. These include the execution-style murder in Kathlehong of nine ANC Youth League members by 15 members of a self-defence unit, all of whom pledged allegiance to the ANC. But disclosures of security force brutality, particularly by the men who served in police and military special (and secret) units, has been the dominant and grim theme of its investigations. As the political analyst Frederik Van Zyl Slabbert notes, the TRC has challenged white South Africans to take a stand on the past, a challenge which some have met by retreating into collective amnesia. However, the perceived bias of the TRC has given a powerful excuse to those who wish to avoid facing the truth about the cruelty that underpinned minority rule.

The TRC’s hope of promoting unity and reconciliation is based on the biblical aphorism: “Ye shall know the truth and the truth shall set you free.” So far the truth as revealed by the TRC has fallen short of that promise.