Investigation Units: The teeth of the Truth and Reconciliation Commission

Newham, G. (1995). Investigation Units: The teeth of the Truth and Reconciliation Commission, September.

 

Research paper written for the Centre for the Study of Violence and Reconciliation, September 1995.

Gareth Newham is a former Project Manager in the Criminal Justice Programme at the Centre for the Study of Violence and Reconciliation.

Introduction

This paper examines various issues relating to the investigation units (IU) of the Truth and Reconciliation Commission (TRC). The objectives of the TRC include: establishing a complete a picture as possible of the gross human rights violations that took place during the apartheid era; facilitating the granting of amnesty for those who give full disclosure; establishing the fate and whereabouts of the victims of human rights violations; and the recommending of a reparation policy to be implemented by the government. The drafters of the National Unity and Reconciliation Act (hereafter the TRC Act) recognised that it would be difficult if not impossible for the TRC to realise these objectives without some form of investigative capability. Section 6 of the TRC Act therefore provides for the establishment of an investigation unit with extensive powers of search and seizure.

Integral to the success of the TRC, the investigations to be conducted will have to determine the full extent of the human rights violations, taking into consideration not only who the actual perpetrators were, but also the structures and organisations to which the perpetrators belonged and under whose sanction they were acting. At the same time investigations will have to be conducted to determine the validity the allegations of victims who come forward to claim reparations. The investigation units will thus play a major role in the overall process of establishing truth and reconciliation through the TRC.

The task at hand will prove to be a highly complex one which will demand a substantial amount of fore thought and planning. Apart from the extensive time span of thirty years over which the human violations that took place are open for investigation, there is also the fact that individuals who may be implicated will come from across the political spectrum and may hold powerful positions in the present state structures. It can therefore be assumed that some of those who will find themselves under investigation will have much to lose and hence resistance can be expected. Indeed, much of the evidence which is necessary to corroborate allegations and shed light onto past abuses has already been destroyed. In light of the fact that the TRC will rely on perpetrators coming forward to give full disclosure as to crimes that were committed, in order to establish the "truth", the investigations to be conducted by the TRC assume another distinct function.

Although there is indication that certain perpetrators will come forward to give full disclosure for a number of reasons, it must be assumed that most will not. While the positive incentive for perpetrators to co-operate with the TRC lies in the provision for amnesty to be granted for past crimes, such an incentive rests heavily on the threat of prosecution for failing to apply for amnesty. It is for this reason that the investigation units have to become more than intelligence gathering organs for the TRC. Investigations will need to be carried out in terms of gathering evidence that can be used in a court of law to facilitate prosecutions and achieve convictions. The investigation units must in effect provide the TRC with the "teeth" that it needs to elicit co-operation from those who can provide details about the atrocities of the past.

It is in relation to this function that the investigations to be conducted by the TRC becomes an issue of strategy. The investigations that usually accompany commissions of inquiry are often reactive in nature. Leads are followed up and evidence is examined in reaction to allegations made before the commission. A different doctrine however, will have to be adopted for the investigations pertaining to the TRC. It is imperative that the investigations that take place into the human rights violations are proactive and aspire to pre-empt the allegations and disclosures that will be made before the TRC. This will in turn allow for a far more manageable and streamlined process of evidence gathering and corroboration to occur. Consequently, the potential for a holistic picture of human rights violations to emerge will be greatly enhanced. The TRC will then not only be less reliant on the testimonies given before the it, but will also have a greater capacity to encourage perpetrators of human rights violations to come forward to apply for amnesty.

It will be the ability of the TRC to conduct effective investigations into the actions of those responsible for past human rights violations that will determine whether or not perpetrators come forward and give full disclosure to the commission. If it becomes apparent to perpetrators that the TRC is unable to investigate and bring charges against those responsible for past crimes, the objectives of the commission will be severely jeopardised. Perpetrators will have nothing to fear from refusing to come forward, and the credibility and potential of the TRC to facilitate truth and reconciliation will be seriously undermined.

Strategy and Structure

Based primarily on extensive interviews with people involved in the Goldstone Commissions' investigations and those involved in other relevant investigations into human rights violations,¹ this paper will highlight the issues that will need to be addressed in the establishment of investigation units for the TRC. The contention of this report is that investigations do not take place in isolation and are not determined solely by the issue under examination. They are highly dependant on the macro environment within which they take place. Furthermore, investigations will also be limited or enhanced by the structures that have been put in place to resource, facilitate and manage the process of gathering information and uncovering evidence. In terms of the mandate of the TRC, it is crucial that the issue of investigations is understood as a strategy. This entails that cognisance is taken of both the broader contextual issues that will effect the nature of the investigation, as well as, the structural issues of the investigation teams themselves.

This paper will be divided up into two main parts. Firstly, the critical issues that will have an effect on the strategy of the TRC investigations will be highlighted and briefly examined. Secondly, specific recommendations will be made as to the structure and procedures of the investigation units of the TRC.

The establishment of the investigation units under the Goldstone Commission are effectively the reason as to why it has been viewed by some as the "most powerful South African commission of inquiry to date."² It is for this reason that the Goldstone Commission investigations provide an important starting point from whence to learn lessons for the Truth and Reconciliation Commission. Although the experiences of the investigation units of the Goldstone Commission can provide valuable direction for the TRC, these investigations were conducted in a different political context to that which the TRC will experience. It will however, be of interest to give a brief description and broad evaluation of the establishment and operations of the Goldstone investigation teams.

The Goldstone Investigation Units

Goldstone Commission, so named after the Judge who headed it, Justice Richard Goldstone, was established in 1990 with a clear mandate to determine the causes of the political violence that was ravaging the country during the negotiations over the transition to democracy. Negotiations amongst the former regime and the recently unbanned liberation movements were constantly under threat as the various role players hurled accusations at each other as to who was to blame for the violence. It was clear that until a neutral body could be established to determine the causes of the violence that there was the very real danger of negotiations failing and civil war breaking out. The Goldstone Commission served to take the pressure off the political parties who could remain focused on the terms of the country's first democratic elections, rather than repeatedly having to take issue over who was to blame for the ongoing violence.

The Goldstone Commission had been operating for almost a year until it established proper investigation units. Initially, the Goldstone Commission had relied on written submissions from the public at large to determine the focus of inquiry. The Commission had one police officer, who operated in a predominantly liaison capacity with the public. Once submissions had been forwarded, the Commission would decide which areas to focus on. Committees were then established with each one headed by a Commissioner. Interested parties to the inquiry were invited to attend and submit evidence at the hearings. Once all the evidence had been heard and cross-examinations completed, a report would be released containing recommendations in regards to the subject of the inquiry.

After a year of operating in the above manner, it became apparent that limited progress was being made. The only investigations that were taking place were those conducted by the lawyers representing the parties concerned. As these lawyers were not part of the commission, but representative of the various parties, the need for independent investigations became paramount. It was thus decided, after deliberation and consultation with the relevant parties, to establish five investigation units stationed at Johannesburg, Durban, East London, Port Elizabeth and Cape Town.

The units consisted of seconded members of the South African police, senior attorneys, and international observers. The investigating units were to be the 'eyes and ears' of the Commission. They enabled the Commission to gather information more quickly and efficiently than had been the case before.³ Testimony to this was the fact that, whereas in the first year of operation the Goldstone Commission had only completed four inquiries and released eleven reports, by the time the commission had come to an end three years later, four hundred and sixty seven investigations had been conducted and forty seven reports had been completed.

The main concern facing the Goldstone Commission investigative units was that they be independent and credible. This was imperative as the context within which the Goldstone Commission operated was one of heightened political flux. Negotiations amongst the political parties were seriously under way and there was a critical need for the political players to be drawn into the transitional process through which consensus could be reached. At the same time the security forces were experiencing an acute credibility crises and were often blamed for the much of the violence into which the Goldstone Commission was inquiring.

It was imperative that the Goldstone Commission investigation units were acceptable to all parties if they were to function properly. It was on this basis that investigators were seconded. The units were to consist of carefully chosen policemen, senior attorneys who had been nominated by the Association of Law Societies of South Africa, and international observers, all who were senior police experts. The attorneys and the international observers were to oversee the investigations to ensure that they were conducted properly. They would submit separate reports on the investigations to the commission, and the international observers would report to their governments via their embassies on the investigations.

Although specific problems will be dealt with later on in the chapter, it will be appropriate at this juncture to make some general comments on the Goldstone investigation teams. Generally they were perceived as efficient and successful. That they managed on a number of occasions, to liase between communities and the South African Police resulting in police investigations being carried out where before they had been lacking.⁴ The Goldstone Commission could therefore take direct credit for consequent reduction of tensions and ensuing peace in some areas. They were also able to react immediately to various leads that resulted in certain suspects and weapons being apprehended, whereas before, perpetrators would have escaped capture.

For all the time and money spent on the Goldstone Commission however, and despite the large number of people and structures found implicated in the violence, there were only sixteen judicial prosecutions excluding the trial of ex-policeman Eugene De Kock. Although the Goldstone Commission did not have the power itself to prosecute, there have been criticisms in regards to its investigative arm being "a toothless body which published reports of its enquiries that were designed more for political damage limitation than full disclosure … [of those] … responsible for acts of public violence."⁵

It may be that the effectiveness of the Goldstones investigation units will only be accurately evaluated once there has been full disclosure made to the TRC. This will only be the case however, if the TRC is able to achieve its objectives in regards to obtaining a full picture of the circumstances surrounding those responsible for human rights violations. To prevent the same type of criticism being levelled at the TRC investigation arm, it is imperative that the Goldstone investigation units are carefully examined to determine their strengths and weaknesses.

For the purposes of this paper, the most striking limitation of the Goldstone Commission was that there was no coherent strategy involved around investigating specific issues. Although the establishment of the investigation units was done with the explicit purpose of achieving broad credibility, the investigations procedure itself was essentially ad hoc in nature. Once the Goldstone Commission had received a request from a particular person or party to investigate a specific incident, the appropriate unit would be instructed to carry out a preliminary investigation. This would include consulting with witnesses and the relevant interested parties to the incident. Once the investigation was completed, a report would be handed to the commission who would then decide whether or not to investigate the matter further by the commission itself, or a committee appointed by the commission.

The nature of the inquiries conducted by the Goldstone Commission were ostensibly political in effect. The commission would thus investigate a broad range of incidents in reaction to the various interested parties demands, being careful to establish committees of enquiries to look into matters of concern from across the spectrum. More often than not investigations would be unable to substantiate allegations made. There was little opportunity to spend a significant amount of time and energy on one investigation without appearing biased. Although this could be seen as a structural deficiency of the Goldstone Commission hamstrung by the political dimensions of the day, it is a crucial issue to take note of in regards as to the what the TRC hopes to achieve through its investigations.

Critical Issues

There is a high level of interaction between the macro environment in which the investigations take place, and the structural and procedural issues that come to the fore. Once we have established where the limitations lie, and what the obstacles are, the opportunity then presents itself for informed choices to be made as to what the role and structure of the investigation teams should be. In this section of the report the issues that will determine the strategy of the investigations will be examined. These issues will highlight the important areas within which thinking around the establishment of the investigation units of the Truth and Reconciliation Commission needs to be located.

The Goldstone Commission highlighted how the structure of the unit is vitally important for its credibility. As mentioned before, the Goldstone Commission was inadequately prepared for the type of revelations that it was to uncover. It could not foresee for example, the extent to which the orchestration of violence was located within the organs of the state and established political organisations. If the Truth Commission wants to reveal the truth and establish a culture of human rights it must be prepared to confront those implicated in human rights violations wherever they may be situated. Many people in South Africa already know the "truth", it now becomes a matter of revealing it.

South Africa's Transition

South Africa achieved democracy through negotiations and compromise. As there was no direct break with the past, power was ostensibly transferred from the minority to the majority through democratic elections. The compromises made to allow for such a transfer of power however, has ensured that the structures of the previous regime have remained relatively intact. Fears for jobs and future security, especially in the civil service and security forces, meant that there has been little structural change in these institutions. Similarly, many of the newcomers to state structures, as representatives of previously banned movements, are heavily implicated in the culture of violence perpetuated by the previous apartheid system. The result for the Truth Commission is that there is a significant amount of people throughout present state structures who may be held directly and indirectly culpable for gross human rights violations that took place in the past. This is the case for most of the parties concerned and will prove highly problematic for the Truth Commission as they will be seen as representatives of the new democracy.

There is a strong notion that the securocratic culture and subculture of the past regime has not been totally undermined due the ad hoc and minimal structural change. A main reason for this has been given that the mind set of the past securocrats understands the discourse of the new South Africa differently, it will tend to react to change "with extraordinary measures and unconventional strategies."⁶ Given the recent revelations of former covert operative, Paul Erasmus, that he was trained and involved in active misinformation activities as late as August 1990 for the security forces, there is space for concern. There is further evidence to suggest that covert activities have been taking place right up until the 1994 elections. Although not as formal and coherent as before, it is likely that loosely formed networks may exist which would attempt to undermine the TRC to protect certain interests. There were indications during the Goldstone Commission that the implication of top police generals in the violence was reflective of an extensive network within the police which were encapsulated by the "old" mind set.⁷

The more notorious organs of the South African police such as the security branch, were dissolved into the present Crime Combating and Investigating Division as part of a South African Police strategy to improve its image in the new South Africa.⁸ The implication of this is that the old mind sets and indeed the perpetrators of human rights violations committed by members of these specific branches, are still within the police force. Although it must be acknowledged that much has changed in the police force as a whole, and that most policemen would co-operate with the Truth Commission, there are areas from within the police force where resistance can be expected.⁹

Indeed, with the current investigations conducted by the Internal Task Unit in Natal, resulting in the arrests of current members of the Inkatha Freedom Party and South African police for hit squad activities, it is clear that in some circumstances very little has changed so that the lines of the "truth" of the past, and the reality of the present becomes blurred. Furthermore, the ITU have also uncovered evidence revealing political violence coming from members of the ruling African National Congress in KwaZUlu Natal. The violence has been ongoing for so many years that directives towards peace being made by National and Provincial leaders is having little effect at grassroots level. If the goal of reconciliation is to become a reality it is important that the TRC takes into account the fact that human rights violations of the nature to be investigated by the commission did not end on the 6 December 1993. The TRC must be able to instigate investigations that carry on after its time jurisdiction. Depending on the nature of the crime, it may be necessary to hand over some TRC investigations to either the Internal Task Unit, or the Independent Complaints Directorate (ICD).

These issues have crucial implications for the Truth Commission. It must expect to encounter resistance to its investigations, and that some of this resistance will come from within the state. It is critical that the Commission takes cognisance of this fact and prepares for it in advance. If the Truth Commission is indeed to be independent and objective, it must have the political will and determination to deal with politically sensitive issues. Whether it likes it or not, these issues will come to the fore, and the only way that the Truth Commission is to be able to deal effectively with them, without undermining its credibility, is to use human rights as a yardstick across the board.

We must remember that the nature of the transition has meant that a significant amount of people who were involved in activities which lead to human rights violations, are presently in positions of power. With this in mind, the overall objective of the Commission immediately necessitates a highly level of independence, or a certain amount of compromise. As there are no "clean" parties to the human rights violations it is expected that political deals will temper the Commission. Indeed, there is the indication that Commissions of inquiry tend to function in the interests of established power groups and seldom propose radical changes.¹⁰

The question may be asked as to why then worry about the effectiveness of the investigation units, if they will not be allowed to harm certain interests? As the Goldstone Commission revealed however, if your structures are independent, and the will power is there, it becomes extremely difficult to determine what a Commission will reveal.¹¹ In this case the Commission is concerned with human rights. The trade off then becomes the protection of certain power interests versus human rights. Political expediency may be the final option in the face of uncertainty and crises, and a "something better than nothing" scenario may prevail. These decisions however, need to be taken in the context of the "truth" that is uncovered, and not decided before hand. It is thus imperative that as much as possible is revealed. This task will lie firmly on the shoulders of the investigation units of the Truth Commission.

Amnesty¹²

Most of the Latin American experiences in regards to Truth Commissions have abstained from the investigation and prosecution route of perpetrators due the inherent difficulties it has presented. The blanket amnesties that have been granted to perpetrators however, have far from resolved the problems in these countries, often leaving a bitter taste in the mouths of the victims and Human Rights activists feel as if "peoples rights have totally been overridden."¹³ Whereas the blanket amnesties that have been granted in Latin America effectively freed perpetrators from responsibility to human rights and democracy in their respective countries, in South Africa the perpetrators are brought directly into the process of reconciliation. Amnesty for human rights violations are to be granted on an individual-to-individual basis, and only as a result of full disclosure.

The issue of amnesty however, poses certain problems and challenges for the TRC, as well as, presenting itself as a determinant strategic issue for the investigations to be conducted. Although amnesty is supposed to be an incentive for people to come forward and disclose to the TRC the full extent and circumstances surrounding their involvement in human rights violations, there is little indication that this will happen. Although there are those at the lower levels of the security forces that have shown a willingness to reveal what they know, those at higher levels of command have shown no such inclination. Quite the opposite has so far seen to be the case with members of the upper levels of the previous command structures caucusing to pre-empt the findings of the TRC.¹⁴

There are a number of problems involved in trying to get people to come forward and disclose. In many circumstances it will appear that perpetrators would rather lie low and take their chances that they will not get implicated. As many of those who may be implicated in human rights abuse would be members, or ex-members of the security forces, they have an intimate knowledge of the difficulties involved in investigating and prosecuting the crimes that they may be charged with.¹⁵ Given the provision that the TRC can make recommendations that certain perpetrators be removed from their positions in the public service, there is also no guarantee that those who disclose will keep their employment. At the same time some of those who participated political acts of violence against individuals committed ordinary crimes due to their sense of impunity which would not be covered by the amnesty provisions.¹⁶ Even those who are directly implicated and get subpoenaed before the TRC will try and reveal as little as possible due to an unwritten code of silence that had existed between members of specialised and covert security force units.¹⁷

There is much doubt over the inclination of people to come forward on their own accord and disclose fully for amnesty. It will have to be the role of the investigation units to ensure that they have enough evidence to compel individuals to disclose for fear of prosecution. The testimonies of perpetrators who do come forward will not be enough to ensure that the full truth has been told. There may be cases where false testimonies are given to discredit people and to distract from the real culprits. The TRC is likely to be a highly politicised affair and there will be the temptation for some to use it to discredit their political opponents. In these cases investigations must be able to disclose false allegations and provide insight as to whether there was malicious intent or not.

The final point that the issue of amnesty raises for the investigations of the TRC has to do with time limitations. Before amnesty is granted to a perpetrator, the testimony that is forthcoming will need to be seriously investigated to determine if it is indeed full disclosure. What needs to be established is at what point there may be a cut off date in terms of amnesty applications. The amnesty cut off date will unlikely to be that of the termination of the TRC, as investigations and hearings may arise from the disclosure given if it implicates people who have not yet been under investigation. There will need to be enough time between the cut off date for amnesty applications and the termination of the TRC to allow for adequate investigation of the disclosure. Given that this time period would ideally be relatively short, the investigation teams will need to be able to move quickly.

In terms of the issue of amnesty as a whole, South Africa's previous experiences with the indemnification of people during the negotiation process was a highly politicised affair. Complex legal issues surrounding the granting of amnesty to those guilty of political offences were inadequately dealt with behind closed doors. From the legal perspective the indemnity process that occurred was "nothing short of arbitrary in its implication."¹⁸ It has been argued that if amnesty is going to aid the process of reconciliation it needs to be accepted and understood by the general community, this best facilitated by grounding the issue in a solid legal framework.¹⁹ It is thus important that the granting of amnesty by the TRC follows the legal provisions that have been set out for it in the National Unity and Reconciliation Bill, and is carried out clearly, consistently and publicly. It is imperative then, that the investigation teams have the capacity to ensure that those granted amnesty have indeed given full disclosure to the violations with which they are implicated.

Evidence

Much of the evidence that could be used to establish the extent of those involved in human rights violations during the apartheid era has been destroyed. During the Goldstone Commission, it was testified that orders were received to destroy certain articles that could be used as incriminating evidence.²⁰ Much evidence as to the nature and extent of the human rights violations that occurred in South Africa is in existence. Various NGOs have been investigating and documenting incidents of human rights abuse for many years. At the same time various commissions of inquiry e.g. the Harms Commission, although have proven ineffectual in conclusively attributing blame, have to large extent by default revealed from where the atrocities were coming. It is possible to build a picture of the extent and nature of the atrocities committed. This will not only allow for the TRC to have an indication of what they are going to have to investigate, but also how they are best to conduct the investigations.

Evidence for the investigations of the Truth Commission has to be seen in two perspectives. First, precursory evidence has to be gathered to give direction to the investigation units. The Commission has to know what it should be investigating, what is available and where to start. In this regard there is no shortage of evidence and a process should be put in place whereby all the available evidence is gathered and analysed. The evidence could be collected from journalists, NGOs, lawyers, previous commissions of inquiry, police and military files and documents, ARMSCOR databases, national and military intelligence, people who set up front companies, as well as, the various state departments and para-statels who had links with security and military branches. At the present time there is extensive work being carried out in the NGO sector in regards to documenting instances of human rights violations. This process not only determines who the victims are, but also reveals the alleged perpetrators. Once all this evidence is analysed, it will be possible to determine what evidence is missing and where it may be located and who would know where it is.

Secondly, as new evidence is gathered, it needs to be analysed in accordance to the strategies established during the initial evidence gathering exercise. It is thus important that those coordinating the investigations prepare to encounter strategies to ensure that their attempts at gathering evidence are not frustrated. It will be necessary to investigate allegations at the level of the individual, rather than to target structures, organisations and institutions. Once specific individuals are implicated it will be important to track the nature of their involvement in human rights violations which in turn will provide in-roads to the involvement of the bigger structures. In the words of an ex-covert operative "as a unit we were strong, as individuals our weaknesses could be exposed."²¹

There are a number of systems available to keep track of, and analyse information gathered from investigations. The Internal Task Unit in Natal however, can provide valuable insight into the advantages and disadvantages of the different systems available. The normal information systems that are used in police investigations have proven to be inadequate for the nature of the investigations that the ITU are conducting. Whereas normal police investigations analyse evidence on a case-by-case basis, this has proved ineffective for analysing evidence where one case encompasses many crimes. As the ITU are investigating the activities of politically motivated hit squads, trends and patterns have to be determined over a wide area between seemingly unrelated crimes, sometimes over a large time period. This necessitates a specialised information analysis system of which the ITU has developed its own. It will be up to the co-ordinators of the investigation units of the TRC to ensure that they have the capacity to analyse the evidence that comes in so that the full extent of the crimes committed can be realised.

Vertical Capacity

The Commission must expect those involved in the past abuses to develop strategies to counteract the investigations that will be conducted. Indeed, a group of ex, and present top security force generals from the police and military have organised to meet with President Mandela to voice their concerns over the Truth Commission. A government spokesperson has also said that the support of the security forces was crucial for the success of the TRC.²² Essentially this does not bode well for the TRC or the investigations that need to be carried out. So that criminals in powerful positions can effectively be investigated it is necessary that the political will exists. If deals are struck before the establishment of the TRC, it will be difficult to ensure that it is a truly independent body. Even if it is independent, investigations against those well situated in state structures will prove extremely difficult if protection is guaranteed and deals agreed upon.

It was very apparent during the Goldstone Commission that there was the inability or lack of will to pursue investigations of people who were in positions of power. The final report of the Goldstone Commission was kept secret from the public for almost a year before being leaked to the press. In the report Judge Goldstone strongly recommends the immediate suspension of the ex-police Commissioner Johanne Van Der Merwe.²³ It has been argued that the report could not be released or acted upon because the commissioner was a too powerful force in the police force. A suspension of the commissioner could have sparked a police revolt which not be risked before or during the April 1994 general elections at a time when co-operation from the SAP was crucial.

Earlier on during the Goldstone Commission three top police generals were forced to take voluntary leave after they were found to be implicated in some of the violence taking place. At the time there were numerous reports of "third force" activities being orchestrated and facilitated by members of the security forces. Realising that the Goldstone investigations were inadequate, all three Generals, backed by the Commissioner of Police, stood up to the President and demanded that they be found guilty in a court of law. As a direct result of the Goldstone findings however, their credibility was severely damaged and all three Generals ultimately retired.

Despite the strong evidence that these top policemen were involved in the co-ordination of covert task units that were responsible for many illicit activities including arms dealing and murder, the Goldstone Commission lacked the capability to conduct investigations at the level needed to determine the full facts. The result was that political deals had to be made, and the ability to purge the security forces of those facilitating atrocities was lost. In regards to the TRC, the Goldstone Commission provides a very valuable lesson in terms of the ability for proper investigations to be carried out.

Apart from people in the security forces, there is also indication that there are individuals from the ANC and other liberation movements, now within the government who may be implicated in human rights violations, or as apartheid spies working for the security forces. Although the latter may not have to be disclosed as it does not constitute a human rights violation, investigations that may uncover such facts could be resisted at high levels, particularly if those implicated belong to the ANC.

Whereas the Goldstone investigation teams were established primarily to be intelligence-gathering structures, the doctrine governing the investigations of the TRC will need to be different. It will be crucial that the TRC investigations are conducted so that evidence collected can be used to prosecute offenders in a court of law. This issue however, raises some potentially serious problems that will need to be dealt with. The favourable aspects of commissions of enquiry is that findings can be made without having to endure the long and excessive legal processes that a court of law dictates occurs to reach a judgement. The lesson from the Goldstone Commission is that if findings of the TRC lead to prosecution, the case must not be weakened due to the limitations of an ill conceived investigative procedure.

Lateral Capacity

Whereas the vertical capacity of the investigation teams of the TRC needs to be based on the ability to investigate people at all levels of power, as well as, at the level needed to secure prosecutions in court, the lateral capacity refers to capability to investigate thoroughly at each level. Two issues can be raised under the lateral capacity of investigations of to reveal information at each level.

Firstly, the investigation arm of the TRC must be able to determine patterns and trends that occur not only inter-regionally, but also intra-regionally. The ITU was initially established in the province of Natal where the focus of its investigations occurred. It then became apparent that the networks that were involved in the hit squads in that region had strong links to the Transvaal where some prominent arrests were made. It is imperative that the investigators are familiar with the command structures that existed under apartheid. Any network within the security forces that operated outside of the law would have been influenced by the command structures in place. If nation wide trends are to be established, it will be necessary to have a close knowledge of how the State Security Council disseminated and received information from the Joint Management Centres (JMC).

The Commission must be able to take into account the regional and local changes. Although this has larger implications for the set up and location of the Commission itself, it will have a severe impact on the ability of the investigation units to successfully conduct investigations and establish nation wide trends and patterns. Each region or locality will have to have its own units who understand and can operate smoothly in a particular region using existing networks. This must be coupled with a centralised management function that can analyze evidence from a across the country and draw out the trends and patterns.

The TRC must also take into account the differences between the various region in South Africa. At the same time, the Commission must also be able to establish trends and links that join the regions. It is widely accepted that the region of KwaZulu Natal has a remarkably different situation to the rest of the country. When the Goldstone Commission spent a week in Natal it found itself ill equipped to cope with all the evidence that it received. Furthermore, activists working at grass-roots level are quick to emphasise that "very little has changed" in relation to human rights violations since the previous government.²⁴ Coupled with the fact that the majority party in Kwazulu Natal, the Inkatha Freedom Party has expressed disdain for the Truth Commission²⁵ and abstained from voting on the National Unity and Reconciliation Bill, has implications for the lateral structure of the Commission.

The second issue in relation to the lateral capacity of the investigation teams has encompasses a certain expertise that the investigators will need to have. Apart from the ability to follow leads and gather relevant information, it is imperative that the investigators have the necessary experience in the areas in which they are investigating.²⁶ As much of the human rights violations took place in covert circumstances, it will prove difficult to obtain evidence without having the necessary knowledge on how the covert structures operated. It is clear that those involved in illegal covert activities operated within a security culture which determined to a large extent the skills, methods and techniques used.²⁷

One of the problems noted about the secondment of attorneys to the Goldstone investigation units was their lack of experience in the areas that they were to investigate. Although they were chosen predominantly in an oversight capacity, the attorneys and international observers "were at the mercy of the police" of the units because they were unsure of investigative procedure.²⁸ To facilitate the perception of objectivity, the Goldstone Commission shied away from anyone who could be construed to have "political baggage" in monitoring the investigations. Consequently attorneys had done investigations into alleged police abuses and hit squads, were not seconded to the Goldstone investigation units.²⁹ Considering that most of the time and effort spent by the Goldstone units related to allegations of security involvement in the violence, it is not surprising that more was not revealed. Although the necessity for the decision to second 'objective' attorneys was understandable in light of the political climate, if the TRC is to seriously reveal the role of covert structures in human rights violations it is crucial that the investigators know what to look for.

Civilian Control

The issue of independence is critical, both for the Truth and Reconciliation Commission as a whole, but also for the investigation units in particular. Although the National Unity and Reconciliation Bill stipulates that investigation units will be subject to the direction of the Commission, it is important that they are able to investigate as pro-actively as possible. At the same time they have to be credible and accountable so that they can investigate without hindrance and their findings accepted as valid.

The main focus of the Goldstone Commission investigative units was that they be independent and credible. The context within which the Goldstone Commission operated in was one of heightened political flux. Negotiations were seriously under way and there was a distinct effort for the political players to be drawn into the transitional process and to reach consensus. At the same time the security forces were experiencing an acute credibility crises and were often blamed for the violence into which the Goldstone Commission was inquiring.

The police who were to be seconded posed the biggest problem for the credibility of the Goldstone investigations. There were many instances when the those who were witnesses to violence, and sometimes whole communities, would not cooperate with the police.³⁰ In these instances the investigators found it best if the attorneys took statements so that witnesses did not have to deal with the police. Problems with the some of the police on the Goldstone units however, were even more insidious than their lack of credibility.

Although the Goldstone Commission had taken great pains to ensure that the police who were chosen were the most suited for the job, it was apparent that there were some problems. The first main problem was the condition of secondment. All the policemen who were seconded to the Goldstone Commission were done so on terms set by the police commissioner that adhered them strictly to a narrow interpretation of the Goldstone Commissions mandate.³¹ The result of this was to restrict their investigations as much as possible to acts taking place after 31 July 1991.

The second problem had to do with police "plants" on the investigation units. Frank Dutton, who had proven his worth as a policeman of integrity during the Trust Feed case, was one of the first policemen to be seconded on Judge Goldstones specific request, the other policemen were chosen off a list presented to the Goldstone Commission by the Commissioner of Police. There is strong evidence to suggest that the list contained members of the security police whose task it was to monitor the investigations to ensure that evidence implicating members of the security force in the violence could be contained or squashed.³² In fact, it was revealed that a substantial amount more evidence would have come to light in the Goldstone Commission, had the investigations not been monitored.³³

With the Goldstone Commission the credibility crises of the police meant that there had to be independent monitors of the investigations to ensure the credibility of the units and the accountability of the investigators. This has been broadly perceived as a strong point of the Goldstone Investigative units and contributed to the effectiveness that was achieved.³⁴

Not only was the Goldstone Commission the first commission of inquiry to have its own investigative units, but it also, for the first time represented a situation of close cooperation between independent civilians and the police. The civilians on the Goldstone units would always have to be part of the investigations to ensure constant monitoring. Although it was initially envisioned that the attorneys would not take part in the actual investigations but merely act in an oversight capacity, once the investigations were under way however, it became necessary in some circumstances for them to play a significant role. This happened particularly when witnesses would refuse to talk to the police, or when the lawyers themselves felt that certain issues needed to be confidential. Essentially there was little separation between the roles of the attorneys and the police.

The notion of civilian control over investigations with the police has since the been implemented on a couple of significant occasions. Not only was there such cooperation during the investigations for the Transitional Executive Council (TEC), but it is the fundamental basis upon which the Internal Task Unit (ITU),³⁵ in Kwazulu Natal operates. In the case of the ITU, a civilian board has been established and there is a strict delineation of responsibility between the police and the civilians. While the responsibility of the police lies in gathering and managing the information, the civilian component is responsible for the analysis of the data.

The idea of the civilian support component (CSC) was to bring in new skills and dimensions to the ITU.³⁶ Whereas the investigative side of the ITU consists of thirty-five detectives headed by Colonel Frank Dutton, the CSC only consists of around five individuals. They are primarily involved in providing input into administrative side of the investigations. They monitor the "paper trail" and provide a sophisticated analysis capacity of the evidence with the aid of the computer system that they have established. They may also accompany the investigations in the field, and provide practical recommendations in regards to their interaction with the police officers.

In as far as the credibility and trust of the policemen of the unit goes, the ITU went through a specific recruitment process. It was seen as crucial that the members of the unit were dedicated investigators with credibility. At the same time it was highly important that the detectives could work together and that they trusted one another. The process began with Colonel Frank Dutton, an officer with proven credibility, who chose a core group of ten of the most trusted Goldstone investigators. From there each of the core group chose detectives that had proven experience and competence. The screening process also involved various NGOs and members of the communities within which the detectives were to work.

Recent experience in the Vaal³⁷ integral investigations however, has highlighted how difficult it can be to establish an effective working relationship between the police and civilian investigators. The basis for co-operation between the police and civilians needs to be one of trust. This is particularly true when investigations are being conducted against members of the police force. Unfortunately, the culture within the police at present, still allows for mistrust on both sides so that there has to be careful management of the investigations if they are to run smoothly.³⁸

Effective management is generally regarded as a crucial point for investigations. Often this area of investigations is not thought out thoroughly, resulting in frustrations and problems during the investigation process.³⁹ Some of the problems most commonly experienced tend to include; confusing management and administration functions, separation of command structures from investigations on the ground, and a lack of basic organisational management skills.

The issue of civilian control and co-operation in investigations will be a crucial one for the TRC. First of all the TRC will have to decide to what extent it will be using policemen. It is generally perceived as necessary that policemen are seconded to the investigating units due to their experience and legal status. This will have to be a decision that the TRC has to take carefully bearing in mind that the police force will be hard pressed to supply an adequate number of acceptable skilled and experienced investigators.

Recommendations

The establishment of investigation units has to be undertaken as a carefully planned process. The amount of investigations that the TRC will have to face will most likely be of significantly huge proportions. Time will not be able to be wasted in trying to react to the inflow of allegations and evidence. The relevant structures will have to be in place, so that investigations can be managed effectively and run as efficiently as possible. The investigations to be conducted by the TRC have to be located within a broader strategy worked out by the commissioners. This strategy should be based on the following considerations:

• What is the ultimate goal of establishing investigation teams?
• Where do they fit into the TRC?
• How independent is the TRC in reality?
• What limitations should be placed on the units?
• How can the units be used to encourage perpetrators to come forward?
• What can be learned from past and existing investigations.
• How can the TRC investigations contribute to structures such as the Independent Complaints Mechanism or future investigations?

Structure

Although the way that the TRC is structured will ultimately determine the macro structure of the investigation units, recommendations will be based on the overall needs of the units. There will need to be a number of units in each province or region, and there will need to be coordination at a regional level. There will also need to be coordination at a national level so that nation wide trends and patterns could be traced. It may be necessary to have an investigative arm of the TRC. This could consist of a board of individuals who would be in charge of the overall management of the units. It could be set up in the form of a directorate on which some of the Commissioners would serve. Ultimately the national directorate of investigations should form the investigative arm of the TRC. It should sit at the headquarters of the TRC and be responsible for the overall investigative process.

The function of the Directorate would be to:

• Establish the aims and functions of the investigation units in accordance to those of the Truth Commission.
• Determine the various categories of investigation.
• Establish the necessary infrastructure at national level to the facilitate the employment of the necessary administrative and support staff.
• Work out an appropriate relationship between the regional directorates.
• Determine the links and relationships between the units, committees and the Commission, as well as, those with other support structures such as national intelligence.
• Be responsible for the budget of the investigation units.
• Establish a system of checks and balances to ensure that there is no corruption that may affect the overall investigation process.

At the national level there would also need to be full time systems operators who would analyse information at a national level. These operators would also be able to determine national trends, and pick up links on investigations between regions. They would receive data from and feed back to the regions.

At the Regional level there would need to be sub-directorates who could co-ordinate the investigations taking place in the provinces. The sub-directorates would:

• Serve as oversight boards of the investigations taking place in their regions.
• Prioritise the investigations taking place in the regions.
• Establish the necessary infrastructure and administration at regional level
• Establish the relationships with the regional Attorney Generals'
• Establish a system of checks and balances to counter act corruption and ensure accountability at regional level.

There would need to be systems operators at the regional level as well, who would analyse data and determine trends and patterns and feed directly into the units in the region. At the present time information as to human rights violations is being fed into regional databases, which in turn will feed into a national database system. This information would provide an invaluable starting point upon which further information could be added. These operators would also interact with the national system operators who would keep them informed as to national developments. These system operators would also be responsible for allocating status to information received, (i.e. Is it evidence or information? Is it confidential? etc.). It is crucial that the "paper Trail" is carefully managed and that evidence does not get lost. A system needs to be worked out whereby information is categorised as to its use or value as evidence for a certain case. It must then be granted a category that determines where it is kept so that it can be easily located, and checked for usefulness in other cases.

Most sources have indicated that the investigation units themselves should be small, consisting of four or five people. The reasons given for this is that small units, are more likely to establish a close and trusted working relationship, which is the most effective check and balance on corruption and incompetence. Whereas a large unit will provide more chance for infiltration and mistrust. Small units will not only help counter this problem, but will also increase the chance of perpetrators who have been involved in a few cases to be exposed. The case load will be determined by the level of investigation being conducted.

As the TRC will have a huge task to perform in terms of human rights violations, reparations and amnesty, the function of the investigation directorates will be to locate the investigation units at a central point for better overall management. It is critical that the units can follow leads quickly, no matter where they lead. The members of the Directorates will have constant knowledge of the investigations that are occurring, and will be able to react immediately to the needs of the units as they arise. They will also be able to monitor the investigations to ensure that they are being conducted properly, and will also be able to react effectively if for some reason there are irregularities or obstructions to any of the investigations.

It will be crucial that the entire investigation, from the highest level, to the lowest, is managed with precision efficiency. This will entail that the duties and responsibilities of each position, from the administration staff to the investigators on the teams, is clearly and strictly delineated. It is important that administration and management are not confused. The two are separate functions and must operate as such.

In setting up the structure and bureaucracy of the investigation units, it is important that a long term and holistic view is adopted to the exercise. Careful thought and planning must be given to what will happen to the components of the structure when the commission comes to an end. The establishment of such a structure and system should be seen as an investment. The equipment should go back into the state. The systems could be developed and thus be infused into the police force. This includes, investigative and analytical methodologies. Thought should also be given to human training and development throughout the process of the Truth Commission. The establishment of the TRC investigation units should be done with an eye for the future. When commission of inquiries are set up in the future, the investigation units of the TRC should not only be able to serve as a model, but also to have improved the structures and methodologies of investigations generally.

Staffing

Even more important than the structure of the investigating units, is the quality and integrity of the staff. A range of skills and talent will be needed including decisive and experienced management, efficient administrators, perceptive systems operators, and committed and proactive investigators. One of the key elements needed is experience. Where experience is lacking it will be necessary to provide training from people with experience. To ensure that a broad range of skills are utilised, people from a host of different backgrounds should be employed. Investigators should be recruited, or seconded from the civil service, police force, law firms, NGOs, universities and the private sector. It may also be necessary to recruit people with the relevant experience from other countries who could provide training and assistance where needed. It will also be necessary to acquire foreign observers to monitor the TRC and the process in general.

One of the biggest problems facing the Truth Commission, is the severe shortage of skilled investigators. Although some will have to come from the police, they will not be able to provide the necessary amount. The police who are seconded will have to be carefully selected and screened. As mentioned previously, there are a significant amount of police officers who will have retained loyalty to the "Old Guard".

The following should be taken into account:

• The backgrounds of the police officers must be scrutinised.
• It would be preferable to be cautious of members of the old security branch, and other branches with police who were used in political repression.
• Reporting officers would be able to give a good indication as to which policemen were competent, they however would have to be carefully assessed.
• The selection process has to be transparent and take place in consultation with various NGOs and community representatives.
• Thought must be given to the fact that it is extremely difficult for policemen to investigate fellow officers, and police should possibly not be used to investigate high ranking officers.⁴⁰

As it is clear that there are not enough suitable policemen to be seconded as investigators, it has been repeatedly suggested that civilian sources are used to staff investigation teams. Although experience is seen as paramount in coming to grips with the subtleties of certain investigations, the actual process of gathering evidence is often based on common sense.⁴¹ A crash course in investigative techniques over one or two weeks could be given to people staffing the investigation teams. There are people who have had experience in investigating security force misconduct and the like, and would be a valuable asset to investigation teams as they would know what to look for in the investigations. The lesson from the Goldstone Commission is to have people with experience in investigating human rights violations.

Although police officers may play a major role in the investigations, it may mean that in some of the units there will only need to be one officer and the rest of the members could be civilians. If civilians are used however, it will be important that they can conduct investigations under with the legal powers of the TRC. They should have identification cards, jackets etc, and be held strictly accountable to their tasks. They should have to sign a contract of understanding stipulating their powers and the regulations that they have to abide by. If anyone is found abusing their position they must be immediately suspended and if necessary prosecuted. A clause should also be built into the contract whereby, any investigators showing bias, or leaking information is immediately suspended. The sub-directorates could act as a complaints mechanism. The units should be structured and staffed in such a way however, to avoid situations where members of the units would be guilty of misconduct.

Investigation Categories

As the TRC will be saddled with the investigation of crimes committed over the past thirty years, it will be necessary to break up the investigations into different areas. At the same time different types of investigations will be conducted for each of the committees. Whereas the human rights violations and amnesty committees would need top level investigations with a thought towards prosecution, the reparation committee would need more of an information gathering capacity. This will entail different categories of units for the different types of investigations. This will allow for effective prioritisation and better focused investigations to take place.

Areas of Investigation

To ensure that investigations are conducted in a manageable and effective manner, key areas will have to be identified for investigations. By identifying these key areas it will be possible to ensure that the right people with the necessary experience, will staff the relevant teams. It will also enhance specialisation which will allow for quicker better effective investigations as investigators will know what to look for in regards to evidence and leads. To give an idea as to the way human rights violations may be categorised, the following key areas can be identified:

• Hit squads and extra judicial killings

This area will involve the investigations of all occurrences of the above atrocities regardless from which organisation or institution they took place. Within this category, investigators will have to look at hit squads and assassins used by the security forces and all the relevant political parties. The individuals involved, the structures they worked for, the organisations the structures were linked to, and from where the authorization came will have to be examined and revealed.

• Public Violence and Intimidation

This area will entail the examination of all instances of public violence and intimidation, including such things as train violence, bombings, the use of criminal gangs by political parties etc. Instances of intimidation from the security forces, Self defence and protection units, trade unions, etc where human rights were grossly violated will have to be revealed.

• Torture and disappearances

All instances of torture within that took place will have to be investigated. The perpetrators of the torture, the structures and organisations to which they belonged, and all those who were culpable e.g. doctors, judges, commanders, and did not act against it need to be exposed. Disappearances could include forced incarceration and kidnapping. Once again the individuals, structures and organisations implicated will have to be established.

Alternatively, investigations could be categorised in terms of perpetrators of human rights abuse. Whereas some units could specialise on corruption from top police officers, others could investigate ANC camp commanders responsible for torture. Although the above areas are examples of a few of the potential areas of investigation that can be named, it will be important for the TRC to ensure that nothing is left out. It will be important to establish the key areas wit the participation of all sides. The base criteria should be human rights violations, and from there, those responsible can be determined.

Priorities of Investigation

The actual investigations themselves will have to be categorised in order of priority. The teams investigating the allegations of victims will be in a different category to those investigating present police force members who are accused of murder. Whereas some of the teams will operate mainly as intelligence units, gathering data to corroborate allegations and testimonies, others will have to investigate wit the view to prosecute. Although the TRC will not have the power to prosecute offenders who have not come forward for amnesty, they will have to provide the Attorney Generals office with enough evidence for a strong civil case. In categorising the units, it will free some of the units to specialise and conduct serious investigations upon evidence which has been revealed by those whose function is primarily information gathering.

The category of the unit will also determine other factors such as, who the members are, access to resources and info, and the security surrounding the unit. These categories will have to be strictly delineated, and the status of each unit clearly defined. Separate databases will have to be set up for the different categories of units. Sensitive investigations will need to have high levels of security clearance and access. Whereas lower categorise of unit can have lesser-experienced investigators, the higher the category, the more skilled and experienced the investigators need to be. Categories will also help overcome the problem of policemen investigating other members of the police force. Police officers can be seconded to teams where the will not have to be placed in uncomfortable situations where they may feel that they are jeopardising their future careers. It is important that the top priority teams consist of highly committed and pro-active investigators.

Support Structures

Given the extent of the resources needed to allow for the establishment and proper functioning of the investigation units, it will be important to examine the most cost efficient way of going about it. It will be wasteful to duplicate the bureaucracies and system already in existence, and so ways must be found to interface with, and use systems and structures already in existence. The links with these structures however, will need to be carefully worked out and narrowly prescribed. Security will have to be of primary importance and the more links and interfacing that exists with outside structures, the greater the chances for a compromise of security. The following support structures have been identified which could feed into TRC investigations.

Training

Lessons from the Goldstone and other investigations have highlighted the need for a certain amount of specialised training to be given to investigators. There have been many police cover ups in investigations, especially in Natal⁴² Investigations can also seriously be effected by negligence, or the loss of evidence which in many cases has been blamed on incompetence.⁴³ It is important that investigators have knowledge about these issues. Procedures for investigation must be clearly set out. If training is to be given to civilians conducting investigations, these things need to be clarified and internalised.

Most of the investigators will need some form of training. It has been mentioned that some of the Goldstone investigations may have been detrimental to the investigations of the TRC.⁴⁴ Often the investigators would go into an area and take statements and gather evidence. That may be the last time that any of the members of the community that were victims of violence would be contacted. There would be no feedback that in turn resulted in communities becoming frustrated and antagonistic to anybody wanting to conduct any further investigations. Many of the investigators would be ignorant of the customs and culture of a certain area and would consequently offend members of the community who would then refuse to co-operate with them. On occasion the Goldstone investigators would not be familiar with the nature of the politics of a particular area and create the impression that talking to a group of people from one of the opposing sides first would mean that they were biased.⁴⁵

Along with being briefed as to the cultural and political situation of certain communities where investigations will have to be conducted, it will be necessary to train the investigators how to recognise and deal with witnesses and victims of gross human rights violations who may be suffering from trauma related symptoms. This should ultimately be coupled to services offered to the investigators themselves who may feel experience stress during tiring and possibly dangerous investigations. Investigators who could deal with witnesses and victims empathetically and sensitively would do much to enhance the process of reconciliation.

Apart from people skills, investigators will need to either come from the areas in which they are to conduct investigations, or be briefed on the relevant issues of an area or community. Furthermore, investigators will need to be able to provide information to the members of communities that they are investigating as a form of reciprocation for co-operation. Investigators should be able to offer assistance on how to solve legal, medical, economic issues. It is also see as crucial that some form of feedback is given to people who have co-operated. In doing so the investigating teams, and the TRC in general, will win the trust and respect of different communities and groupings thereby increasing their credibility and ability to extract information and promote reconciliation.

Existing Investigations

Due to the magnitude of the instances of human rights violations to be investigated, it would be problematic for the TRC investigation teams to start from scratch. Apart from being able to access data that has already being gathered by the various NGOs who have investigated and documented instances of human rights abuse, it would be sensible for the TRC to tap into investigations that have already been conducted, or are presently underway.

So that this could be a viable option, there would have to be a concerted effort, particularly on the behalf of the Attorney Generals, to allow the TRC access to the relevant dockets. At the same time, there could be close co-operation with investigation units such as the ITU, or structures such as the Independent Complaints Board. This would not only serve to improve the investigations of the TRC, but may well prove to be beneficial to these other structures.

The co-ordinators of the TRC investigations however, must be extra wary of tactics that may be used by certain members of the police force, particularly from senior ranking officers, who may use police investigations or structures to undermine the TRC. The ITU has already experienced similar types of tactics to hamper its own investigations.⁴⁶ This tactic has often been used to pre-empt investigations which may reveal police complicity. The tactic is to conduct a investigation so that evidence can be destroyed and cover ups can take place.

Intelligence

There is little doubt that certain elements within and outside of the state structures will try and resist or undermine the objectives of the TRC. Whether to protect themselves from having to account for implication in past atrocities, or through ignorance of what the TRC implies. Methods use to negate the aims of the TRC may be very sophisticated and difficult to locate. Similarly, if international monitors or observers are used, it will be vital to ensure their integrity. Some concern had been raised that during the Goldstone Commission that some of the international observers were there more for intelligence purposes than to ensure impartiality. It is thus highly recommended that the TRC, as part of the investigative arm, has an intelligence function.

An intelligence capacity would increase the chances of the TRC being able to determine where threats are coming from, and in what form. Threats could take the form of propaganda, misinformation or corruption within the TRC. It could also come from individuals, political organisations or groups. An intelligence capacity would allow for pre-emptive steps to be taken to minimise damage to the process of Truth and Reconciliation. Intelligence could also help to the increase the security of the TRC investigations by tracing leaks of information, and determining if there were "moles" or not.

It is improbable that the TRC will be able to develop its own intelligence function. Not only will this take up too much time and resources, but to be truly effective networks have to be developed which necessitates a great deal of time. The most likely scenario will be that the TRC makes use of an already existing intelligence structure. This in itself however, poses a few difficulties. At the present time sources have indicated that the most reliable will be the National Intelligence Agency, who has seemed to proven itself through thorough internal restructuring. There is strong indication that Military Intelligence however, still contains elements who would have little interest in seeing the TRC succeed. The links that an intelligence structure has with the TRC will have to be very carefully worked out. Some members of past intelligence networks will have much to keep covered up and could be inimical to the function that it intends to carry out.

Resources

The issue of resourcing the investigation units is one that also needs careful forethought and planning. During the Goldstone Commission investigations, police style radios were initially used to communicate between the investigators and the headquarters. It was later found that these frequencies were easy to monitor and cell phones were then used. It is important that the investigation teams are equipped in accordance to their needs. Basic resources could include:

• Offices where the units can be housed.
• Adequate security systems.
• Transport, all teams must be able to follow leads immediately.
• Communications, cell phones for sensitive investigations.
• Computers, data analysis and "paper trail" systems.
• Cameras, video cameras, recording devices.
• Adequate administration resources.

The procurement of resources needs to part of a policy decision. Careful thought must be given to what is bought and what will happen to equipment once the TRC is terminated. Although the National Unity and Reconciliation Bill makes provision for a transference of funds and resources of the TRC to be transferred to the Disaster Relief Fund, special consideration should be given to the resources, equipment and systems accrued by the investigation arm. As has been mentioned before, the investigation arm should be established with regard to improving investigation techniques an structures presently in existence, and in the future.

Conclusion

Much of the controversy surrounding the establishment of a Truth and Reconciliation Commission stems from a fear that it may be used by the ruling ANC to discredit and weaken its opponents. If there is any justification for this criticism, it will provide the perfect ammunition for those who wish to keep their implication in past crimes secret. It is absolutely critical for the success of the TRC that it is perceived as an independent and politically objective body. This however, cannot be achieved through political deals and promises. The objective of the TRC is to reveal the "truth" and promote reconciliation. If society at large senses that the TRC an exercise in political "whitewashing" to protect the tenuous position of the Government of National Unity, this could not only inimical to the process of reconciliation, but also seriously undermine the rule of law.

The most effective way in which the TRC could hope to succeed in the face of political adversity is to conduct fair and thorough investigations into past abuses. The criteria by which these investigations and the subsequent findings of the TRC should be based, is that of human rights. The quest to establish a culture of human rights in South Africa can only be adequately achieved if the structures of the state exist within this particular framework. Unfortunately the nature of the transition in this country has resulted in individuals who, through their past, and in some cases present actions, have shown little regard for the rights of fellow citizens. As it is not the intention of the TRC to be a "witch hunt", it is important that the full truth of the past is revealed. Arguments may be put forward that the context of political repression and conflict lent itself to the atrocities committed. In many cases individuals were convinced that they were at war and that their survival depended on the methods that they used. This context will be taken into account in the interests of amnesty and reconciliation. The TRC however, needs to educate the population about the past so as to prevent similar occurrences in the future.

It is only when as much of the "truth" of the past as possible emerges, can the process of educating, healing and reconciliation begin. This "truth" will only emerge through carefully planned and thorough investigations. It will be up to the co-ordinators of the TRC to ensure that the establishment of the investigation arm of the commission gets the priority and attention that it needs. The success of the Truth and Reconciliation Commission depends on it.

Notes:

¹ Interviews were also conducted with members of the Internal Task Unit who are investigating political hit squads in Natal, and with people who were involved in internal investigations into police misconduct in Gauteng.

² Shaw, M., "The Goldstone Commission in the Public Eye", in Indicator SA, Vol. 11, No. 1, (1993), p. 58

³ Report on the Investigation Units of the Goldstone Commission: 1 October 1992 – 30 September 1993.

⁴ The Report on the Investigation units of the Goldstone Commission: 1 October 1992 – 30 September 1993, cites four examples where the involvement of the Investigation Units led to the prevention of further violence.

⁵ The Independent Board of Investigations, Report for September-October 1994, p. 15

⁶ Liebenburg, I., "Transition, Democratisation and the rules of the game" in The Hidden Hand: Covert Operations in South Africa, Human Sciences Research Council: Pretoria, (1994), p. 120

⁷ Independent Board of Inquiry, Report for April 1994, p. 31

⁸ Shaw, M., "Point of Order: Policing the Compromise" in South Africa Review 7, Friedman, S. and Atkinson, D. (eds), Ravan Press: Randburg, (1994), p 206

⁹ Colonel P. Du Plessis, Private Interview, 17 July 1995

¹⁰ Shaw, M., "The Goldstone Commission in the Public Eye", in Indicator SA, Vol. 11, No.1, (1993), p. 57

¹¹ Although the Goldstone Commission was generally regarded as being limited to the political contingencies of the day, its findings did have a dramatic effect. The firing of top military officers on the recommendation of the Steyn report which was pre-empted by the Goldstone Commission, and the present De Kock trial, to cite two specific examples.

¹² Although strictly speaking amnesty is granted after prosecution while indemnity refers to protection from prosecution, for the purpose of this paper the terms will be used interchangeably.

¹³ Pollecutt, L., "Chilean Truth Commission fails to deliver justice", in Rights: A Lawyers for Human Rights Publication., Vol. 3, (December 1993), p. 17

¹⁴ The Citizen, 1 August 1995.

¹⁵ Howard Varney has indicated this as a problem encountered while conducting investigations against members of the security forces. (Private Interview, 10 July 1995)

¹⁶ Most of the charges being brought against Vlakplaas commander Eugene De Kock are criminal and have little to do with his political role for the state. This is however, a strategy used by his prosecutors due to the complications of prosecuting political crimes (Kariem Norual, Private Interview, 29 June 1995)

¹⁷ This was a warning given by Dr Pretorias who has had much experience with members of state security structures, (Private Interview, 21 June 1995).

¹⁸ Keightley, R., "Political Offenses and indemnity in South Africa", in the South African Journal on Human Rights, Vol. 9, Part 3, Juta and Co: Johannesburg, (1993), p. 356

¹⁹ Ibid, p. 334

²⁰ Particular examples include the testimony of Major Du Plessis and Major Van Vuuren to the Judge Goldstone that Major-General Englebrecht had allegedly ordered the destruction of all files and correspondence relating to Inkatha involvement once it became clear that investigations were being carried out by the Commission. Goldstone Report 18 March 1994

²¹ Major Klopper, Private Interview, 18 July 1995

²² Star, 10 August 1995

²³ Mail and Guardian, Vol. 11, No.28, July 7 to 13 1995

²⁴ Jenny Irish, Private interview, 11 July 1995

²⁵ Business Day, 5 July 1995

²⁶ This point was reiterated time and time again by various people who have been directly involved in investigations.

²⁷ Coetzee, D., "Vlakplaas and the Murder of Griffiths Mxenge", opcit., p 175

²⁸ Advocate Bill Seales, Private Interview, 11 June 1995

²⁹ Star, " Goldstone Men, The Unreachables", 20 September 1992

³⁰ The Waddington Report (20 July 1992), highlights the fact that the residents of Boipatong refused to cooperate with the police in providing evidence due to severe mistrust. (Report of Inquiry into the Police Response to, and Investigation of events in Boipatong on 17 June 1992)

³¹ Colonel Frank Dutton, Private Interview, 10 July 1995.

³² Everyone who was a member of the Goldstone investigation units confirmed this account, including policemen.

³³ Major Klopper, Private Interview, 18 July 1995

³⁴ Advocate Piet Botbijl, Private Interview, 22 June 1995

³⁵ This is an independent police unit which is investigating hit squad activity in the Kwazulu Natal region, it is directly accountable to the Ministry of Safety and Security.

³⁶ Melanie Lue, Private Interview, 10 July 1995

³⁷ These investigations were conducted by Jan Munnick into alleged police misconduct and resulted in conflict with police Commissioner George Fivaz after Munnick felt as nothing was being done in relation to the findings of misconduct amongst certain police officers. Charges included torture and murder.

³⁸ Piers Pigou, Private Interview, 28 July 1995

³⁹ This was an apparent experience from a variety of sources who have had experiences in formal investigations.

⁴⁰ It has become apparent that there is animosity against members of the ITU, and various tactics have been used by the police in Natal to undermine them. (Jenny Irish, Private Interview, 11 July 1995)

⁴¹ Colonel Piet Du Plessis, Private Interview, 17 July 1995

⁴² The Trust Feed case is the most notable example, but according to Mary De Haas, an independent investigator into the causes of violence in Natal, the police in many instances have "perfected the art of cover ups". (Private Interview, 11 July 1995)

⁴³ The Waddington Report submitted to the Goldstone Commission, 20 July 1992, provides a good example how the lack of commitment of the police to investigate can lead to acute incompetency which can infer cover ups.

⁴⁴ Jenny Irish, Private Interview – 11 July 1995

⁴⁵ These were among examples in which investigations were negatively affected by investigators because of their inexperience and ignorance. It was highlighted that, particularly in Natal, it was imperative that if community participation was expected, a knowledge of the customs and context of that community was needed. (Private interviews with the following NGOs in Natal NIM, LRC, LHR, CDRT)

⁴⁶ The police in Natal have on at least one occasion tried to disrupt or confuse certain cases of the ITU by setting up their own investigations into the same case. (Howard Varney, Private Interview – 10 July 1995)

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