After the TRC

THE AMNESTY PROCESS looks set to run and run — long after the life of the Truth and Reconciliation Commission and well into the term of the next government. The ANC, once strongly opposed to any granting of amnesty outside the TRC’s framework or to any extension of its timeframe, has radically shifted its position.

President Mandela spelt out one reason for the ANC’s switch in a speech to a joint sitting of Parliament on February 25. He stated flatly that it was necessary to re-examine the “TRC Act” by which he meant, of course, the Promotion of National Unity and Reconciliation Act. The Act empowers the TRC to grant amnesty — under stipulated conditions — to combatants involved in the struggle for South Africa between 1960 and May 10, 1994, the date of the president’s inauguration. Alluding to an omission on the part of legislators, Mandela said: “While individuals are accommodated, the process leaves open the possibility of endless litigation against the new democratic government, as well as the structures that were involved in [past] conflict. We hope that these matters will receive the attention of the amnesty committee as it wraps up its work.”

Legal observers close to government told Focus that Mandela was concerned because the present government is legally liable for the actions of men and women who served under the previous National Party government, including those in the security forces accused of harassing, torturing and even murdering anti-apartheid activists. The thought of using treasury funds to pay the defence costs of these defenders of the old order is undoubtedly disturbing to ANC leaders. But there is another dimension: the “endless litigation” could also be directed against the ANC and its leadership by those who suffered as a result of its actions, including the victims of abuse and torture in its guerrilla camps during the armed struggle. Mandela went on, amid applause from government ranks, to add a rider to his hints that a modification of the Act might be in the offing. “Let us reiterate that we are not contemplating a general amnesty under any guise,” he said. “Such an approach would go against the grain of the very process we have all agreed upon.”

While prosecutions should be instituted against those who abused human rights where there was supporting evidence, these prosecutions had to take place within a fixed timeframe. “We cannot afford as a nation and government to be saddled with unending judicial processes,” Mandela said. But he believed that the new director of national prosecutions, former ANC representative in the National Council of Provinces, Bulelani Ngcuka, would strike a balance between the conflicting demands of establishing “accountability and the rule of law” and advancing “reconciliation and the long-term interest of our country.”
Mbeki endorsed Mandela’s stand. “Whatever happens we should never entertain the idea of a general amnesty,” he said. But, he added, consideration would have to be given to measures to ensure that South Africa was not “drawn into a situation of conflict as a result of the political crimes of the past.” Mbeki then referred to proposals for a special amnesty deal mooted by the ANC’s provincial leadership in KwaZulu-Natal, and to another set of amnesty proposals advanced by former South African Defence Force generals. “We will all have to discuss these proposals,” he stated.

Mbeki’s remarks came at the end of a long and often bitter speech. The speech accused the TRC of making the “erroneous determination” that various actions of the liberation movement constituted a gross violation of human rights, implying — according to Mbeki — that all military activity which results in the loss of civilian lives constitutes a gross violation of human rights and criminalises “a significant part of the struggle of our people for liberation.”

The speech raises the question of whether the TRC finding that the ANC was not entirely blameless — that it, too, had violated human rights — contributed to the ANC’s willingness to widen the parameters of the amnesty process. One wonders whether the ANC would have been less receptive to proposals for a new form of amnesty if the TRC had turned a blind eye to ANC abuses or rationalised civilian casualties during ANC bomb attacks as “collateral damage”. Water affairs minister Kader Asmal advanced that argument in Reconciliation Through Truth, the book that he co-authored with his wife Louise and the West Indian journalist Suresh Roberts.

Mbeki’s attack on the TRC during the parliamentary debate on the TRC’s voluminous final report drew disapproval from Human Rights Watch. In a letter to Mbeki, its executive director Peter Tkairambudde says: “Serious human rights abuses were committed by the ANC during the struggle against apartheid.” Among these he lists the taking of civilian hostages and indiscriminate bombings. According to him the ANC itself provided the TRC with a list of its members who died as a result of excessively harsh treatment after committing breaches of discipline and agents executed on orders of tribunals, “most of which must be considered prima facie cases of gross human rights abuses”.

The letter goes on to express concern about Mbeki’s suggestion that “the government is considering the grant of additional amnesties to former SADF generals and those involved in political violence in KwaZulu-Natal who did not apply for amnesty to the TRC.”

Two sentences follow which echo a widely-held view in South Africa: “All persons who committed political crimes during the apartheid period had an adequate opportunity to seek amnesty from the TRC and those who did not apply for amnesty should not benefit from their silence during the amnesty period. Additional amnesties would undermine the important historical compromise which was made in 1994, granting a limited amnesty to perpetrators in return for their contribution to a search from the truth about the past.”

The debate on the TRC report in Parliament was followed hardly more than a week later by the release of the TRC amnesty committee decision on applications for amnesty from 27 ANC leaders, including Mbeki, defence minister Joe Modise and foreign minister Alfred Nzo. Though each of the 27 submitted an application, they asked for their applications to be considered jointly. This joint application has a controversial history: first submitted in 1997, it was originally approved by the TRC amnesty committee but was successfully challenged in the High Court, which ordered the amnesty committee to consider it afresh. After reappraising the application, the amnesty committee rejected it.

Looked at dispassionately the application could be fairly described as unusual. It was accompanied by a declaration in which the applicants “collectively took full responsibility” for the actions of the ANC and its subordinate institutions, including Umkhonto We Sizwe and the self-defence units. Their acknowledgement of “collective responsibility” was followed with a request for amnesty for human rights abuses that may have been committed. At the same time the ANC assured the amnesty committee that none of the applicants on its list “had been involved in any individual action for which they would require to apply for amnesty.” The extraordinary nature of the application led Dene Smuts of the Democratic Party, to remark in a celebrated phrase that the ANC leadership was seeking amnesty for nothing in particular but everything in general.

In its reconsidered response the amnesty committee made three salient points:
n that the applicants accepted collective responsibility for actions by ANC members that were committed “under the ANC’s political authority, director and leadership”;
n that the TRC founding law, the Promotion of National Unity and Reconciliation Act, did not “provide locus standi to liberation movements, political organisations or the State to apply for amnesty”;
n that these “juristic entities were nevertheless immune from both criminal and civil liability” for actions for which one of their members has been granted amnesty.
The amnesty committee spelt out the last point. “In the case of the ANC, once a member or supporter . . . has has been granted amnesty for an act, offence or omission, the ANC is indemnified against any criminal and civil liability for (those) acts.”

The consequences of these three points are far-reaching. If the applicants were granted amnesty for any acts committed under the authority of the ANC by its members, the ANC as a “juristic entity” would receive a general or blanket indemnity. While the applicants were seeking collective amnesty for themselves and their followers, they were simultaneously seeking amnesty for the ANC per se.

Unfortunately for the ANC, the amnesty committee, mindful that its decision would be scrutinised by the High Court, rejected the application. First, it argued that none of the applicants disclosed a specific act or offence for which they seeking amnesty as required by the enabling law, the Promotion of National Unity Act. Second, it said that the notion of collective amnesty was not provided for in the law and that the applications therefore “fall outside the ambit of the act”.

These arguments are so fundamental that one must ask how they escaped the attention of the amnesty committee when it first decided to accede to the joint application. One answer may be that the amnesty committee was anxious to please the ANC and that it was prevented from doing so by determined resistance from opposition parties and, to their credit, leading members of the TRC, as distinct from the amnesty committee. Mandela voiced his concern about the vulnerability of the ANC, as well as the ANC-led government, to “endless litigation” not much more than a week before the amnesty committee’s decision. The chances are high that he was briefed about the pending decision before it was made public and that his speech was made in part response to it.
Since then the amnesty committee has rejected applications for the joint granting of collective amnesty to another 79 ANC leaders and members. They include several ANC national executive committee members. Reacting to the latest decision, announced on April 6, Smuts said: “The ANC has clearly been attempting to duck liability for the actions of all its cadres in an uncontrolled struggle by trying for collective amnesty.”

Meanwhile two proposals for widening the amnesty process are on the table: one from the ANC provincial leadership in KwaZulu-Natal and another from former SADF generals. The ANC suggests that amnesty should be considered for politically motivated crimes in the province committed after the (revised) cut-off date of May 10, 1994 and that applications should be heard in camera before a “special board composed of persons acceptable to both the ANC and the Inkatha Freedom Party.” The former generals are pressing for what Constand Viljoen, former SADF commander and now Freedom Front leader, labels a “court-driven” amnesty process. The idea is that any former SADF man who is charged in court for past crimes should be able to apply for amnesty in terms of a special clause in the interim constitution of 1993 asserting that amnesty shall be granted for political offences in the interests of national reconciliation.

Mbeki is known to be keen to complete the process of rapprochement between the ANC and the IFP. The TRC findings against IFP leader Mangosuthu Buthelezi are a major obstacle to that objective. As he hinted to Parliament, Mbeki will almost certainly manoeuvre for a special amnesty deal. He has not committed himself on the proposal mooted by former generals. Viljoen expects no decision until after the election.
But if Mbeki negotiates a special amnesty deal with the IFP, he will undoubtedly raise expectations for a similar arrangement with the generals. He may find it difficult to rebuff them, even if he has second thoughts after taking over as president. Once the principle of amending the Act has been conceded for the generals and KwaZulu-Natal, the ANC can feel fully justified in pushing through the changes that it wants — above all by limiting its own liability to be sued for human rights abuses.