Mbeki chides TRC for a "grave falsification"

The Truth and Reconciliation Commission submitted its codicil to president Mbeki in March 2003, and this is therefore an opportune time to make an interim appraisal of the TRC process that began nearly seven years ago. During the closing parliamentary debate on the TRC, Mbeki referred to a passage in the codicil which he described as ‘a grave and insulting falsification’. The passage stated that Frank Chikane, former general secretary of the South African Council of Churches, had confessed to having participated in murders. Another Chikane (not Frank) had confessed to the murders, but a proof-reader mistakenly inserted the first name Frank in front of the surname during the galley proof stages. The TRC notified the president as soon as it became aware of the mistake, and Archbishop Tutu apologised to Mr Chikane. Nonetheless, it is disturbing that a mistake of this magnitude was made about a person as well-connected as Frank Chikane, and it raises the possibility that the report may contain equally grave errors about others. Another anomaly concerns the 1992 Boipatong massacre. The TRC’s 1998 report stated that the massacre was carried out by IFP supporters from the hostel in conjunction with the police. This version is strikingly similar to the HRC account, which was compiled before the issue of police complicity had been investigated – and dismissed – by Judge JM Smit and by a team of British investigators headed by Peter Waddington. The TRC did not explain why it preferred the HRC’s version to that of Smit and Waddington. This is disturbing in light of the amnesty committee report, issued in 2000, which rejected testimony that white men with blackened faces participated. Another contentious issue concerns reparation for the 22 000 victims of past human rights abuses. The government kept them waiting for over four years before agreeing to compensate them, and the amount it finally offered was far less than the TRC recommended. The government argued that people did not participate in the struggle for financial reward. However, it agreed to pay pensions to guerrilla combatants. Surely human rights victims should qualify for equal benefits, particularly as most of them are poor. Their sense of grievance is compounded by the fact that there have been virtually no prosecutions against their persecutors. Mbeki has stated that the government will not countenance a general amnesty, but in the absence of prosecutions, it can be argued that a de facto general amnesty exists. This is an unsatisfactory way for the TRC to end.

The Truth and Reconciliation Commission (TRC), having submitted its two-volume codicil to president Thabo Mbeki on 21 March 2003, is rapidly slipping into South Africa's archival repository for investigations. The task of fully addressing the difficult question of whether the TRC fulfilled its mandate of unveiling the truth about South Africa's violent heritage, and using the truth to free South Africans from the burden of the past, awaits the attention of industrious historians.

In the meantime, however, the completion of the codicil invites chroniclers of contemporary events to offer an interim appraisal of the TRC process that started, amid intense media interest, in April 1996, and ended nearly seven years later with the tabling of the codicil in parliament on 15 April 2003.

An appropriate starting point is an observation made by Mbeki in his address to parliament during the closing debate on the TRC. He refers in it to a perplexing and disturbing mistake in the codicil, one for which TRC chairman Archbishop Desmond Tutu, in an explicit admission that the TRC had erred, has apologised. The codicil reports that Frank Chikane, former general secretary of the SA Council of Churches and present director-general in the Presi-dency, made a presentation to the amnesty committee in which he confessed to having participated in the murder of people. Mbeki describes the error as a "grave and insulting falsification".

The error raises an important issue. If the TRC could err so badly in a report concerning Chikane, a notable with powerful political patrons, it might have erred even more grossly in its reportage on the activities of less important people or people subscribing to an ideological orientation less acceptable to the TRC commissioners, the vast majority of whom had pro-ANC "struggle credentials".

TRC commissioner Yasmin Sooka - who was directly involved in the writing of the codicil - offers a benign explanation of the error, however. Her explanation is twofold: firstly, that the Chikane referred to in the original transcript of the codicil is not Frank Chikane; secondly, a proof reader spotted the name Chikane during the "gallery proof" stage of production and automatically hit "a replacement button" which inserted the first name Frank in front of the surname Chikane. As evidence of the TRC bona fides she records that it proactively alerted the Presidency of the mistake and initiated the apology from its chairman to Chikane.

Sooka's explanation notwithstanding, Mbeki's address to parliament shows that he still felt the need to rebuke the TRC. Even so, a mistake of that magnitude, innocent or not, against as well-connected a person as Frank Chikane raises the possibility that equally grave errors may have been committed against more humble people or people for whom the commissioners felt less sympathy politically.

On that note a prominent anomaly in the TRC report highlights an issue of similar gravity to the calumny against Frank Chikane. It concerns the Boipatong massacre of June 1992 in which at least 45 residents of that township were slain by men from the nearby KwaMadala hostel. It should be noted that the Boipatong massacre was an event of seminal importance in the struggle for psychological and political dominance between the ANC and the then ruling National Party during South Africa's transition from a white-led racial oligarchy to a multi-racial democracy. It is not an exaggeration to describe it as a turning point during those crucial years, as it was used by the ANC to demonise and unnerve the then President FW de Klerk and to establish its ascendancy in the settlement negotiations.

The TRC states in volume three of its 1998 pre-codicil five-volume report that Inkatha Freedom Party (IFP) supporters from the hostel planned and carried out the massacre in conjunction with the police and that, consequently, the commissioner of police, the minister of law and order and the IFP were "responsible for the commission of gross violations of human rights". The 1998 TRC findings on the Boipatong massacre so closely resemble those of the 1992 ANC-orientated Human Rights Commission (HRC) that Anthea Jeffery, in her book The Truth about the Truth Commission, describes the TRC report as a recycled (and nearly verbatim) version of the HRC report. The nearly identical convergence between the TRC and HRC reports is particularly disturbing for another reason. The HRC account was compiled before the question of police complicity was thoroughly investigated and dismissed by Judge JM Smit in the subsequent trial of the KwaMadala attackers and scrutinised and found wanting by a team of British police investigators headed by Peter Waddington.

In its original 1998 report the TRC offers no explanation for preferring the HRC contention that there was police complicity in the conclusions of Smit and Waddington i.e. that there was no evidence of police collusion. Its failure to do so is disturbing because it implies either culpable negligence or wilful bias. The need for an explanation from the TRC is made more compelling by the finding of its amnesty committee on the application by the KwaMadala attackers for amnesty. The amnesty committee report on the Boipatong massacre, issued in November 2000, rejects the evidence of residents who testified that white men who had blackened their faces or who wore balaclavas aided the KwaMadala invaders. It finds, too, that the committee was unable to conclude "as a matter of probability" that the attackers were accompanied by police or army vehicles.

There is, however, no detailed attempt by the TRC to explain the anomaly in the codicil, even though the amnesty committee - which acceded to the application by the attackers for amnesty - found that the IFP invaders were motivated by a desire to avenge the deaths of slain IFP supporters and to send a message that the killing of IFP loyalists would not be tolerated and should cease. The sole reference to the anomaly - described by Sooka as "fleeting" - falls far short of a thorough examination of the issue. Contained in an appendix headed "Third Force", it does little more than reassert its belief that there was collusion between the attackers and the police; that it does not believe that the evidence of witnesses to that effect was fabricated.

The CEO of the amnesty committee, Martin Coetzee, states that the TRC should have adjusted its 1998 finding on Boipatong to take account of the committee's report of November 2000. A central reason for his contention is that witnesses before the amnesty committee testified under oath and were subject to cross-examination (whereas those who appeared before the Human Rights Violation Committee, though under oath to tell the truth, were not subject to verifying cross-examination). The choice is thus between evidence that was tested under cross-examination and testimony that was not.

From a broader perspective it is clear that the codicil has failed to reconcile the interpretations of the past by the main political protagonists. They still do not concur with the TRC version of the truth or with one another. If there is reconciliation, it is in the spirit of putting the past behind them - not because they agree either on the facts or the interpretation of them but because it is more constructive to work together for a better future than to indulge in acrimonious dispute over the past. It is pertinent to record the leaders of three of the main political protagonists - former National Party leader De Klerk, ANC president Mbeki and IFP president Mangosuthu Buthelezi - felt so strongly about the TRC's version of the truth that they sought court injunctions to prevent publication of those sections of the report that affected them personally and/or the organisations they led. The differences remain, though the fate of the applications varied (De Klerk was successful, the ANC was not and the IFP withdrew its application in an out of court settlement that allowed it to submit a powerfully worded criticism of the official TRC finding).

Another issue (for which the TRC per se cannot be blamed) that continues to generate discord concerns the more than 22 000 officially recognised victims of past human rights abuses. Many are bitterly disappointed with the ANC-led government's handling of the reparations question. There are two central reasons for their discontent:

· First, apart from token urgent interim payments of hardly more than R2 000 per victim, government kept them waiting for nearly four-and-a-half years before agreeing to compensate them financially.
· Second, when Mbeki finally announced government's willingness to offer more substantial financial recompense, the amount was far less than the payment recommended by the TRC (government agreed to make once-off payments of R30 000 to each victim instead of paying them an annual "pension" of between R17 000 and R22 000 for six years).

One of the reasons cited for government's reluctance to agree to the TRC recommendations is its belief that people did not participate in the liberation struggle for financial reward, that they did so for the love of freedom. That view contrasts sharply with government's decision to pay pensions of between R24 000 and R84 000 a year for life to guerrilla combatants who fought to overthrow apartheid.

If government is prepared to pay full pensions to guerrillas who, to quote from the Special Pensions Act of 1996, "made sacrifices" for the "establishment of a democratic order", officially designated victims of human rights abuses who were harassed, beaten, tortured and maimed by security forces defending the old order should qualify for equal benefits, the more so because they have already been screened by TRC commissioners and because the majority are poor people who, through no fault of their own, were caught in the maelstrom of violence that swept South Africa.

Their exclusion from equal benefits cannot be justified logically and appears to be a form of discrimination that will rankle for a long time to come. Their sense of grievance is heightened by the virtual absence of prosecutions against people who did not apply for amnesty but against whom the TRC believes there is prima facie evidence of culpability for past atrocities. From the perspective of the officially designated victims, they have been short-changed on reparations while their persecutors have gone unscathed.

There is, however, another issue on which government action - or more accurately lack of action - is open to criticism. Since the submission of the TRC's initial five-volume report to government in 1998, the government has only made one major attempt to prosecute a high-ranking official of the old order suspected of participating in the abuse of human rights: the failed indictment of chemical and biological warfare expert Wouter Basson on 46 charges of murder.

There has been no visible action to implement the TRC recommendation that it prosecute individuals where evidence exists that they committed gross human rights violations. The recommendation applies to former president PW Botha, Buthelezi and some leaders of the ANC, including Winnie Madikizela-Mandela (to name but a few prominent leaders), given the TRC finding that they should be held accountable for commission of gross human rights abuses on their orders, or with their connivance, or because they created a climate which nurtured the murder of innocent non-combatants.

Mbeki, in his speech in the final debate on the TRC report in April 2003, states firmly that government will not countenance the idea of a general amnesty. But it can be argued that in the absence of effective prosecution of suspects a de facto general amnesty has been allowed to emerge, though it has not been formally declared. It is a thoroughly unsatisfactory note to sound at the end of the formal TRC process. It is made even more disappointing if Mbeki's apparently selective use of his prerogative to pardon prisoners is taken into account. Judging from the controversial pardoning of prisoners in the Eastern Cape last year it is biased in favour of those who are black and ideologically aligned to the ANC or the Pan Africanist Congress.