TRC Final Report

Volume 1

Chapter 4

Subsection 2

11 The working group also proposed that an adaptation of the Norgaard Principles² be used in making the relevant decisions. These took into account aspects such as motive, context, the nature of the political ojective, the legal and factual nature of the offence (for example, rape could never be considered a political offence), the object of the offence and whether the act was committed in the execution of an order and with the approval of the organisation concerned.

12 The recommendations were accepted with some amendments in terms of the Pretoria Minute on 6 August 1990. However, in the Government Gazette, recording acceptance of the Pretoria Minute, published on 7 November, the words ‘even murder’ were inexplicably left out – an omission that caused significant problems subsequently.

13 It was agreed that the South African Constitution, the Prisons Act and the 1990 Indemnity Act would be used and that ‘a group of wise men’ would be appointed to deal with releases and the granting of indemnity. Although the group was supposed to consist of three government and three ANC-appointed judges, the three ANC nominees refused to participate because of a ruling that deliberations had to be held in secret and they felt they could be compromised if the Indemnity Board rejected a recommendation.

14 In early 1992, negotiations collapsed completely for a number of reasons, including the fact that some fifteen to twenty key ANC members were still in prison. Negotiations were finally resumed after the signing of the Record of Understanding, which signalled a commitment to begin talks again and contained an agreement to review the whole question of political prisoners. Critical to this was a review of the contentious category of ‘murder’, one of the causes of the dispute that brought negotiations to an end. The Record of Understanding contained the following sentence:

The two parties are agreed that all prisoners whose imprisonment is related to political conflict of the past and whose release could make a contribution to reconciliation should be released.

15 One hundred and forty-nine prisoners were released with immediate effect and without any formal process at all. However, when the third Indemnity Act of 1992 was passed, the category of ‘murder’ was still not included, despite the undertaking in the Record of Understanding to review the contentious issue of political prisoners.

16 A day or so before the elections in 1994, President De Klerk, allegedly without consultation with the ANC and other political parties, authorised the release and indemnity of about eighty to one hundred people. However, by this stage, anyone who had committed a crime which, according to the terms of the Record of Understanding, involved some political motivation was up for possible release.

17 During the pre-election period, very few members of the security forces had applied for indemnity, possibly in the expectation of a general amnesty. However, only days before the election, when it became clear that there would be no general amnesty, a relatively large number of security force members applied for indemnity under the 1992 legislation. Their applications were unsuccessful because they failed to disclose details about acts for which they were seeking amnesty as required by the legislation.³

18 After the conclusion of the Record of Understanding, the focus shifted to the question of how a future democratic government would deal with amnesties for political offences and especially for the security forces. Two matters were settled relatively early. It was agreed, in the first place, that actions taken in terms of apartheid law would not merely for that reason be regarded as illegal and that there would be no Nuremberg-type trials for the many human rights violations legally committed in the course of implementing apartheid.

19 Furthermore, it was agreed that there would be some form of amnesty for politically-motivated offences committed in the past. The government insisted on a form of blanket amnesty, while most other parties demanded that amnesty should be linked to some form of truth commission process. A compromise was eventually reached only after the finalisation of the rest of the interim Constitution and was recorded in what became known as the ‘Postamble’. This provided that there would be amnesty for politically-motivated offences, and that future legislation would provide the criteria and procedures to regulate the process.

20 A number of NGOs and others played a role in preparing the ground for a truth commission. There were one or two major conferences, attended by leading scholars and human rights practitioners, that stimulated wide debate in civil society and in Parliament.

21 The new government introduced the Promotion of National Unity and Reconciliation Bill in Parliament in November 1994. The Bill provided for amnesty as required by the interim Constitution. It stressed, too, the importance of victims to the proposed process, emphasising their right to tell their stories of suffering and struggle. This became an essential focus of the envisaged commission - what has been described as a ‘victim-centred approach’. The legislation also required that, in order for amnesty to be granted, there should be full disclosure of the violations in respect of which it was sought. In this way, the ‘stick’ of prosecutions and civil claims was combined with the ‘carrot’ of amnesty to encourage perpetrators to testify about gross violations of human rights. This was a unique feature of the South African commission. National unity and reconciliation could be achieved only, it was argued, if the truth about past violations became publicly known.

22 It is important to note the uniquely open and transparent nature of the process that preceded the adoption of the Bill. Civil society played an influential role in the months of debate and compromise leading to its adoption. The parliamentary Portfolio Committee on Justice conducted extensive public hearings. As a direct result of these public hearings and the pressure exerted by civil society, the parliamentary Portfolio Committee made a significant change to the Bill, as follows.

23 One of the compromises reached between the ANC and the National Party (NP) when the Bill was discussed in Cabinet had been that amnesty hearings should be held behind closed doors. Human rights organisations and other NGOs successfully contested this and the principle of open hearings, except where it defeated the ends of justice, was won. The Bill was signed into law by the President on 19 July 1995⁴ and came into effect on 1 December 1995 after the Commissioners had been appointed. The appointment process was also open and transparent. Despite the fact that the legislation gave the President the authority to decide who would serve on the Commission, President Mandela decided to appoint a broadly representative committee to assist him in the process of identifying the commissioners. Organisations of civil society participated in the process by nominating prospective commissioners and monitoring the hearings which led to the appointments. The committee called for nominations and 299 names were received. After the public hearings, a list of twenty-five names was submitted to President Mandela. The President consulted with his Cabinet and with the heads of the political parties and appointed the required seventeen commissioners.