TRC
Chairman Archbishop Desmond Tutu
TRC
Chairman Archbishop Desmond Tutu
The following was taken from a document which summarizes the history and key issues confronting the Truth Commission, further information can be found here.
The Promotion of National Unity
and Reconciliation Act is a
long and complicated piece of
legislation by comparison with
the one page edicts which formed
similar bodies in Latin
America. It establishes
a unique framework for the South
African attempt to engage questions
of truth and
responsibility for past human
rights abuses.
The 17 member Truth and Reconciliation
Commission has three
main functions: to prepare a record
of past abuses, to
recommend the granting of reparations
to the victims of abuse,
and to grant indemnity from prosecution
in respect of "acts
associated with political objectives"
to individuals who make
full disclosure of their acts
to the Commission. Its
tripartite structure reflects
these responsibilities.
1. Committee on Human Rights Violations:
The Committee on
Human Rights Violations is the
part of the South African
legislation that most resembles
its Latin American
predecessors. Its duty is
to investigate the abuses of the
past and prepare a comprehensive
report on "gross violations
of human rights" during the thirty
years prior to the
transition to democratic government
in South Africa.
A gross violation of human rights
is defined as 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 the cut off date
[finalized as 5 December 1993,
the day before the date of
adoption of the interim constitution],
within or without the
Republic, and the commission of
which was advised, planned,
directed, commanded or ordered
by any person acting with a
political motive". ("Political
motive" is defined in the
context of the Committee on Amnesty.)
2. Committee on Reparation and
Rehabilitation: Individuals who
were victims of gross human rights
violations may apply to
this committee for compensation.
If the committee is of the
opinion that the person is a victim,
it will make
recommendations "in an endeavour
to restore the human and
civil dignity of such victim".
The drafters of the
legislation were careful to ensure
that the granting of
reparations did not turn into
an open-ended commitment, and
the wording of the act is designed
to allow the president and
parliament to see how many claimants
there are before setting
out the amounts payable to them.
3. Committee on Amnesty: This committee
considers applications
and grants amnesty "in respect
of any act, omission, or
offence on the grounds that it
is an act associated with a
political objective" committed
during the period March 1960 to
December 1993. The committee
has five members, of whom three,
including the chair, are judges
who are not commissioners
themselves but appointed by a
separate procedure. The
remaining two members of the committee
are commissioners, of
whom one is the commissioner
most likely to be sympathetic to
the security forces. All
applications for amnesty must be
submitted by 15 December 1996.
Whether an act is considered to
be associated with a political
objective will be determined in
light of the position the
individual held and of a set of
criteria known as the
"Norgaard Principles" (originally
devised for use in
negotiations over the release
of political prisoners in
Namibia). To be political, an
act must have been committed by
a member or supporter of a "publicly
known political
organisation or liberation movement"
or by an employee of the
state, either acting "in furtherance
of a political struggle"
(including both acts by or against
the state and acts by one
political organisation or liberation
movement against another)
or "with the object of countering
or otherwise resisting the
said struggle", and the act must
have been committed "in the
course and scope of his or her
duties and within the scope of
his or her express or implied
authority". The Norgaard
criteria include the motive of
the person who committed the
act; the context in which the
act took place; the legal and
factual nature of the act, including
its gravity; the object
of the act (in particular whether
it was directed against a
political opponent, state property
or personnel, or private
property or individuals); whether
the act was carried out on
the orders of a body of which
the perpetrator was a member;
and the closeness of the connection
between the act and the
objective pursued. An act with
a political objective does not
include any act committed for
personal gain or out of personal
malice, ill will, or spite.
If the committee is satisfied that
the application complies
with the requirements of the act
and, importantly, that the
applicant has made full disclosure
of all relevant facts, it
will grant amnesty. This
extinguishes criminal and civil
liability in relation (only) to
the acts or omissions
confessed to. The committee must
publish the full names of the
persons to whom amnesty has been
granted, together with
"sufficient information to identify
the act, omission or
offence in respect of which amnesty
has been granted". The
hearings of the committee are
public, unless it specifically
rules otherwise, but the applications
for amnesty and any
supporting documentation remain
confidential, until their
content is made public by the
Commission. Evidence given to
the Commission is not admissible
in ongoing or later criminal
proceedings against the individual
who has applied for
amnesty, nor may any adverse conclusion
be drawn in legal
proceedings as a result of his
or her application for amnesty.
No other truth commission-type
body has tried to combine the
issues of "truth" and "justice"
in this way. The long debate
between the government and the
ANC has led to a compromise in
which indemnity will be available
in limited circumstances and
only in return for full disclosure.
The link to indemnity
should operate to take the search
for the "truth" much
further, in particular in uncovering
the high-level command
structure underlying the covert
operations of the former
government. One of the obvious
arguments for low-ranking
members of the security forces
to make in their applications
for amnesty will be that they
were following orders and
essentially had no choice in what
they did. While this point
may be given some weight by the
Commission--even though it is
not a defence to criminal liability--these
applicants will
inevitably have to answer the
question: who gave you the
orders? Since the hearings
are in public, individuals will
find out if they have been named,
and will then be
"encouraged" to speak out on their
own account. In this way,
the chain of responsibility may
be established to quite senior
levels (as has already happened,
for example, in the case of
the investigations leading up
to the current trial of former
minister of defence Magnus Malan
and several senior security
force officials).
While the TRC expired on October 31, 1998, the work of the Committee
on Amnesty continues today, with over 2000 applications facing them at
the time of the report's release in 1998. An up-to-date account of
the trials can be found at www.truth.org.za/amntrans/index.htm.