TRC Final Report

Volume 1

Chapter 4

Subsection 1

Volume ONE • Chapter FOUR

The Mandate

■ INTRODUCTION

I have the privilege and responsibility to introduce today a Bill which provides a pathway, a stepping stone, towards the historic bridge of which the Constitution speaks whereby our society can leave behind the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and commence the journey towards a future founded on the recognition of human rights, democracy and peaceful co-existence, and development opportunities for all South Africans irrespective of colour, race, class, belief or sex.

Its substance is the very essence of the constitutional commitment to reconciliation and the reconstruction of society. Its purpose is to provide that secure foundation which the Constitution enjoins: ‘...for the people of South Africa to transcend the divisions and strife of the past, which generated gross human rights violations... and a legacy of hatred, fear, guilt and revenge’.

Dullah Omar, Minister of Justice introducing the Promotion of National Unity and Reconciliation Act in Parliament, 17 May 1995

1 The spirit and intention of the Postamble to the interim Constitution is captured in the Preamble of the Promotion of National Unity and Reconciliation Act No 34 of 1995 (the Act) and provides the framework within which the establishment and mandate of the Truth and Reconciliation Commission (the Commission) must be understood.

2 The Commission was conceived as part of the bridge-building process designed to help lead the nation away from a deeply divided past to a future founded on the recognition of human rights and democracy. Its purpose needs to be understood in the context of a number of other instruments aimed at the promotion of democracy, such as the Land Claims Court, the Constitutional Court and the Human Rights, Gender and Youth Commissions, all institutional ‘tools’ in the transformation of South African society.

3 One of the main tasks of the Commission was to uncover as much as possible of the truth about past gross violations of human rights - a difficult and often very unpleasant task. The Commission was founded, however, in the belief that this task was necessary for the promotion of reconciliation and national unity. In other words, the telling of the truth about past gross human rights violations, as viewed from different perspectives, facilitates the process of understanding our divided pasts, whilst the public acknowledgement of ‘untold suffering and injustice’ (Preamble to the Act) helps to restore the dignity of victims and afford perpetrators the opportunity to come to terms with their own past.¹

4 In the course of fulfilling its mandate, it became clear to the Commission that organs of civil society – such as faith communities, non-governmental organisations (NGOs), community-based organisations (CBOs) and ordinary citizens - all have a role to play in achieving the goal of national unity. South Africans will need to continue to work towards unity and reconciliation long after the closure of the Commission. In the words of a participant at a public meeting of the Commission, we need to ensure that “reconciliation is a way of life”. Another acknowledged that the Commission could do no more than ‘kick start’ the process.

5 This chapter describes the specific contribution of the Commission to the bridge-building process in post-apartheid South Africa. It will provide a brief overview of the historical and legislative origins of the Commission and of the objectives and functions of the Commission as prescribed by the Act. It will also deal in some detail with the Commission’s interpretation and implementation of its mandate. The difficult and often contested decisions taken by the Commission in this regard will be highlighted.

■ HISTORICAL AND LEGISLATIVE ORIGINS

6 The first call for a South African truth commission came from the African National Congress (ANC) before the first democratic elections in 1994. Professor Kader Asmal mooted the idea on his installation as Professor of Human Rights Law at the University of the Western Cape on 25 May 1992, saying:

We must take the past seriously as it holds the key to the future. The issues of structural violence, of unjust and inequitable economic social arrangements, of balanced development in the future cannot be properly dealt with unless there is a conscious understanding of the past.

7 Soon afterwards, Asmal’s call became a firm proposal of the National Executive Committee of the ANC, following an investigation of accusations that the ANCin-exile had perpetrated human rights violations in some of its camps. In response to the allegations, the ANC set up its own internal commissions of enquiry, the Stuart, Skweyiya and Motsuenyane commissions. The reports of these commissions confirmed that gross human rights violations had taken place in the camps. The National Executive Committee accepted the criticisms levelled at the organisation. It expressed the view, however, that the violations committed by the ANC should be seen against the background of the human rights violations that had taken place in South Africa over a much longer period. It proposed the appointment of a truth commission as a way of achieving this. This was perhaps the first time in history that a liberation movement or government-in-waiting had called for an independent investigation of this kind, aimed at enquiring into allegations of violations of human rights not only by the previous regime, but also by its own members.

8 In the meantime, the negotiations that would bring apartheid and political conflict to an end and herald the introduction of democracy in South Africa had begun. They took place within an international framework, which increasingly emphasised the importance of human rights and the need to deal with past human rights violations.

9 The negotiations process began seriously with the Groote Schuur Minute in early May 1990. In terms of the Minute, a working group was established to make recommendations, amongst other things, on a definition of political offences in the South African situation, and to advise on norms and mechanisms to deal with the release of political prisoners. On 21 May, the working group found that, while there was legislation allowing for the pardon or release of people who had already been sentenced or were awaiting appeals, new legislation would be required in respect of people who had not been charged. This resulted in the 1990 Indemnity Act.

10 The working group also produced findings concerning political offences. It recommended that, as there was no generally accepted definition of a political offence or political prisoners in international law, principles of extradition law should be used to develop guidelines. In terms of these principles, the working group concluded that cases should be dealt with on an individual basis; that certain offences (such as treason) were of a purely political nature, and that criminal acts of a serious nature (‘even murder’) might be regarded as political offences.