Simpson, G. (1994). "Truth, Dare or Promise": Civil society and the proposed commission on truth and reconciliation. Paper presented at the Centre for the Study of Violence and Reconciliation conference: Making Ends Meet: Reconciliation and Reconstruction in South Africa, World Trade Centre, Johannesburg, 18 August.
Graeme Simpson
Paper presented at the Centre for the Study of Violence and Reconciliation conference Making Ends Meet: Reconciliation and reconstruction in South Africa, World Trade Centre, Johannesburg, 18 August 1994.
Graeme Simpson is a founder and former Executive Director of the Centre for the Study of Violence and Reconciliation.
The Political Context
This paper is concerned with the seemingly imminent issue of legislation to establish a "Truth and Reconciliation Commission" in South Africa, and with the related controversial issues of indemnification of past human rights perpetrators and public access to information relating to these abuses during the apartheid era, as well as during the subsequent negotiation period. These issues are fundamental to the human rights climate in South Africa in the wake of formal political democratisation, and to the building of a human rights culture essential to sustaining the "paper rights" enshrined in the new interim constitution.
The delicate historical process of negotiated transition in the period since February 1990, has resulted in the new government of national unity inheriting a dependence on many of the former regime's civil service institutions and personnel. Of particular significance here, are the agencies of state security – including the policing and military institutions – which were central to sustaining the apartheid system deemed illegal at international law.
Many of these institutions and personnel were allegedly directly involved in the clandestine torture, extra-judicial executions and enforced disappearances of those involved in resistance to the system, yet the nature of the transition means they also continue to be depended upon to sustain law and order within a 'new' society confronting a potential upward spiral of political and criminal violence. In addition, many of those who are now in power within the new government of national unity, were themselves actively involved in the armed resistance to apartheid which, it is argued, also entailed the violation of human rights within the country and beyond its borders.
It is in this delicate political context that the question re-emerges as to what is to be done in respect of these past criminal abuses of human rights? Nor is it the first time that these concerns have been addressed. Indeed, from the very outset of the negotiations between the Nationalist government and the African National Congress (ANC), a central bargaining point has been the relationship between indemnification of returning exiles and the associated requirement of full disclosure of their political crimes – demanded by the government as a pre-requisite for the release of all political prisoners. This fed into the negotiations climate and set a premium on bi-lateral agreements between the government and the ANC on these issues, in order to prevent the entire process being derailed.
Whereas the early concerns revolved around the indemnification of returning exiles, subsequent negotiation focused on questions of amnesty in respect of members of the state security forces who had been involved in covert activities which were illegal even by the standards of South African law. The establishment of the Goldstone Commission of Inquiry into Violence and Intimidation further stimulated debate over the merits of a general amnesty, resulting from the Commission's call for such an arrangement in order to better facilitate its task of gathering information on the activities of the SADF, the SAP and the Kwazulu police, as well as the military wings of the ANC and the PAC.1 Albeit on different grounds, the issue of indemnity or amnesty was once again linked to the concern for disclosure of information relating to (political) criminal acts.
Whatever its position within bi-lateral talks, politically the ANC had to resist the right of the then illegitimate regime to indemnify its own functionaries. Representatives of the liberation movement argued that, although not opposed in principle to the notion of an amnesty, this decision should appropriately fall to a new government of national unity under the new constitution. Despite this, on October 16 1992, The Further Indemnity Bill was introduced in parliament and promised, if passed, to empower then President De Klerk to forgive any politically motivated crime, with the sole condition of review in secret by a government-appointed commission. The only public record relating to the decision – in stark contrast to the conditions set out in the Pretoria and Groote Schuur Minutes which dealt with political prisoners and returnees – would be a list of those to whom immunity had been given … and the records of the review body could be destroyed.
The Bill effectively created an obligation to suppress the truth. It was suggested by authors such as Davis et al. that this explained why a 'Further' Indemnity Bill was required: The State President already had the power, in terms of the Indemnity Act 35 of 1990, to indemnify any person or category of persons, by publication of certain facts in the Government Gazette. It was argued that De Klerk needed the Further Indemnity Bill to give him the power to conceal the truth.2 Subsequent reports indicated that the National Party government was still attempting to negotiate an extended blanket self-amnesty at the end of 1993. It was reported by the Sunday Times newspaper that government sought to have the general amnesty extended to include all political offenses committed before December 1 1993, in terms of which the identity of the killers of at least 10 000 victims of political violence over the previous three years, would, by implication, remain secret – and the victims' families would be denied any right to compensation, whether by law or otherwise.3
It is particularly significant that the main principle reflected in the preamble to De Klerk's Further Indemnity Act, was a concern to "promote reconciliation and peaceful solutions". However, as noted by the Parliamentary Committee of the General Council of the Bar of South Africa (GCB), this general concern with reconciliation must
… be balanced in the crafting of the statute itself by a concern for the administration of justice … . It is apparent that a blurred pursuit of 'reconciliation and peaceful solutions', without adequate regard for its impact on policing, the courts, and the control of crime, will do more to threaten social stability.4
Despite the ostensibly noble motivations for national reconciliation, any amnesty/indemnity arrangement without a parallel obligation to disclose the nature of the crimes perpetrated, however critical it may have been in driving the negotiation process forward, in fact has grave implications for the longer-term prospects of national reconciliation. In particular, for the victims of these abuses of power – on whichever side of the political spectrum they may reside – the implication is that they may never have access to the information essential to their rehabilitation. The prospect is that there will be no public or private acknowledgement of their past, let alone any capacity for redress at law. One possible consequence of this is that, in the absence of any such public acknowledgment, coupled to the impossibility of restitution though the law, widespread resentment is likely to manifest itself in informal retribution at both an individual and a collective level, resulting in escalating rather than de-escalating violence under the new democratic dispensation.5
Equally significant is the fact that in the absence of full disclosure and public knowledge of past human rights abuses, the inherited institutions of the new government may well retain unchallenged their organisational culture of clandestine, unaccountable and covert activity. This institutional culture has historically been fostered by the myriad of legislative measures which have actively preserved secrecy and governmental privilege in the name of state security and which have thus contributed to widespread corruption and abuse of power.6 In no context has this been more evident than in the spheres of intelligence gathering, law enforcement (in the historical context of criminalised political activity) and activities ostensibly pursuant to state security. Unless it is subject to the public scrutiny which US Judge Louis Brandeis has deemed the "best of disinfectants",7 this organisational culture of covert activity within state institutions will continue to plague any future democratic dispensation which has the misfortune to inherit a civil service and state security establishment which, at best, may be passively resistant and, at worst, actively hostile to new democratisation initiatives.
In the South African context, therefore, politicians and legal planners alike, ignore the resilience and independent dynamic of traditional forms of civil administration at their peril, particularly in the politically motivated realm of the 'secureaucrats'. Indeed, the growing concern (in the course of the transitional process) with the need to render the activities and internal functioning of policing and other security establishment institutions "transparent", suggests the necessary awareness – at least on the part of some of the politicians.
In this context, the whole question of "recovery of the truth" must have a central pro-active and remedial role. This may take a number of forms. In post-World War II Germany, the vehicle was highly public criminal prosecutions in the form of the Nuremburg Trials. In more sensitive negotiated transitions such as in the Latin American context, often the mechanism which accompanied the granting of amnesties was a judicial "Truth Commission" which sought to uncover the past without jeopardising the tenuous negotiated truce through the threat of extensive prosecutions. None of these mechanisms really compare with the magnitude of the social and administrative experiment in the new "unified" Germany after the collapse of the Berlin Wall. In this instance, the proposed vehicle of truth recovery has been the granting of extensive rights of public access to the records of the former State Security Service – the Stasi Archives.
Of course each of these approaches to "truth recovery" articulated closely with the particular dynamics of transition in particular countries and historical contexts. Equally, it is important that none are therefore to be imposed lock, stock and barrel on the different and specific South African situation. However, all these initiatives concerned with various forms of public disclosure in respect of past abuses of human rights, to a greater or lesser extent, claimed to service two clear objectives:
- On one hand, they were all motivated by a primary retrospective concern with the 'rehabilitation' or reparation of victims of these past abuses.
- On the other hand, all of these initiatives laid claim to a pro-active, forward-looking or preventative function, frequently manifested by the ostensible concern to either "purge" or transform the institutions of the state which allowed these past abuses.
It is similarly in relation to these two guiding concerns that the final paragraphs of the interim constitution, under the heading "National Unity and Reconciliation", links the issues of reconciliation, reconstruction and future amnesty arrangements:
The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.
These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation.
In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offenses associated with political objectives and committed in the course of the conflicts of the past. To this end, Parliament under this Constitution shall adopt a law determining a firm cut-off date, which shall be a date after 8 October 1990 and before 6 December 1993, and providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed.8 (Author's emphasis)
The Controversial Issues: Ambit and powers of the proposed Truth Commission
Ultimately, the extent of the dual pro-active and retrospective concerns discussed above, and the relationship between them and the questions of amnesty or indemnity granted to the perpetrators of past political crimes, revolves around policy decisions of the new government. Indemnification of the perpetrators is likely to be considered necessary to securing the disclosure of such information as is required to service the objectives of national reconciliation and the rehabilitation of past victims. This is especially the case considering the covert nature of these past abuses and the usually exclusive access which those responsible have to verifiable information. Furthermore, the methods imposed by future legislative measures, particularly in respect of the question of prosecutions, may be substantially limited by the political constraints imposed by concerns over the rather tenuous loyalties of the security forces. Yet punitive measures of some sort may well be demanded by the concern to purify a future administration of the ill influences of those who have previously been involved in the illicit utilisation of state power for the purposes of human rights abuses – both in order to build the legitimacy of state institutions in the post-apartheid era, as well as to ensure that such abuses do not occur again.
The grave problem which is potentially posed by the extract from the constitutional postscript cited above, is the simple use of the word "shall" which has been highlighted. The strong implication is that amnesty will be granted, and this may impose severe limitations on the ambit of a future Truth and Reconciliation Commission (for example in linking indemnity to disclosure), as well as complicating attempts to strike down earlier "self-amnesty" legislation on the basis that it is conflict with the new constitution.9
From this it is clear that there are a range of controversial issues which relate to the concrete proposals in respect of the proposed Truth and Reconciliation Commission, what it can achieve and indeed, what damage it may cause. In the space available here, it is only possible to selectively identify some of these areas of controversy, hinting at their possible impact on prospects of reconciliation and implications for community empowerment in the context of a delicate balance between political, moral and legal considerations.
Ambit of the Commission
At the outset, there is some debate over the ambit of the proposed Truth Commission concerning the broad crimes of apartheid, but it would seem that simply on the grounds of practicality it will be necessary to limit the Commission's investigations to, at most, gross human rights abuses: torture, assassinations and other extra-judicial killings, and forced disappearances. In any event, some of the broader crimes against humanity which constituted apartheid (such as the denial of citizenship rights, of freedom of movement and assembly, and even the deprivation of socio-economic rights such as the right to land), are more appropriately and effectively resolved through the political process of democratisation and the powerful associated spirit of reconciliation generated in the political sphere over the past period.
What is clear, however, is that the Truth Commission will have to consider the gross human rights abuses of both parties to the historical South African conflict. However, this should not be taken to mean that there is no differing morality applied in evaluating those crimes perpetrated through the full use of state power, when compared to those committed in the name of the liberation movements.
Problems Posed by Victim Aid
Another key area which will pose problems in building a reconciliation process into the proposed Truth and Reconciliation Commission, is that of victim aid and compensation. Should a successor regime be forced to foot the bill of its predecessor in providing compensation? What victim aid mechanisms are practically possible? There are clear lessons from the Chilean experience which can be drawn on in this context. Ultimately, it is simply critical to recognise that the victim aid dimensions of the Commission are critical mechanisms for intervening in the cycle of violence in South Africa and in building reconciliation through active victim empowerment.
Investigative Powers and Access to Information
There are also key questions which remain to be answered as to the precise investigative powers which will be accorded to the future Truth and Reconciliation Commission. This entails key questions over time frames for truth recovery, the precise requirements of procedural justice within the Commission's hearings, etc. Perhaps most worthy of some further examination are questions over the mechanisms for securing access to relevant information – particularly within the archives of the intelligence and security establishments.
In principle, this proposed access to security records by the Commission, as well as by individual victims, operates as an additional incentive to those in the know to voluntarily disclose such information as is at their disposal. It is a critical "push-factor" or pressure on perpetrators to disclose information, in the knowledge that non-disclosure is not necessarily a guarantee that the information will not become available by some other means. Should such information emerge without having been voluntarily disclosed by the perpetrator, then such a perpetrator would not be indemnified from prosecution. This proposal is viewed as critical to dealing with the real danger that suggestions of indemnification (or depending on one's reading of the Constitution – guarantees of amnesty), rather than having the effect of encouraging past perpetrators to confess voluntarily, may well have the opposite effect. Access to security records by the Commission or the individual victims, may serve to pressure such perpetrators into disclosure.
Personal access of victims to their own security files, is arguably also critical to the rehabilitative objectives set out in the proposed Act. However, there is the danger that any records relating to any official knowledge of past gross human rights abuses as defined in the proposed legislation, may have been destroyed by this time – if recent press revelations are anything to go by. In any event, this question is enormously complex and raises important issues, not only in respect of rights of access to government held information and privacy rights under the new constitution (s 23 and s 13 respectively), but it also goes to the transparency of state institutions which is so fundamental to functioning and accountable democracy itself.
It seems clear that, in the interests of a fledgling democracy in South Africa, there is a vital need to address the absence of any legislated rights of access to such information. In particular, in the search for creative redress of past injustices (at a social-psychological level at least), public access to information contained in the files of the "security establishment" must be thrown open to public scrutiny as part of any national reconciliation programme. In this regard, we can probably learn a great deal from the German experiment, despite its arguably excessive fervour – which the fragile South African peace probably could not afford.
The legacy of apartheid policing has generated entirely enmeshed concepts of law enforcement, national defence and state security which plague attempts to define the legitimate and necessary limitations on rights of access to government-held information. This is hopefully a problem which the process of transition itself, through reshaping the notions of state security, will ultimately resolve. However, if this is to pave the way to any meaningful public access to such information, a review of the morass of security legislation with a view to reasonably restricting the secrecy requirements therein, will clearly be necessary. This is essential, not only in the interests of individual access to information, but in respect of a wide range of public interest concerns.10
It is argued here that in the South African context there can be little debate over the public interest in access to information contained in the former security establishment records. What is slightly more controversial, perhaps, is the suggestion, as in the German case, that this should be extended beyond individual access to their own files and should include some public rights of access as well. Whilst it is probably true that the German Stasi Records Act of 1991 goes too far in this respect (particularly in allowing private bodies such extensive access to the Stasi files), there remains an obvious reconstructive and rehabilitative rationale in actively facilitating public knowledge and acknowledgement of this past legacy. There appears to be no better regulated method of facilitating this than through the proposed Truth and Reconciliation Commission.
A further problem emerges from the legacy of oppressive intelligence gathering. Like the Stasi, the methods of the South African security establishment have been less than savoury and the intelligence gathered and documented clearly crosses the theoretical divide between public and personal information and between reliable and false information. When dealing with the question of access to these records, these facts feed the already problematic conflict over private versus public interest rights and raises the critical question of how best to regulate access to this information.
In the South African context, with concern for social reconciliation and reconstruction in the shift to democracy, perhaps we can remedy the excessive elements in the German approach. Public access to the relevant records can be limited to the Truth and Reconciliation Commission, on one hand, and to individuals in respect of their own files and based on their rehabilitative needs, on the other. However, in the meantime, two problems remain: firstly, there is no effective mechanism which will generate the particular sort of access to information required here; and secondly, by the time there is, there may well be nothing left in the relevant data banks.
The Preventative Dilemma – Punish or Pardon
Perhaps the most controversial issue is the thorny question of whether past perpetrators should be punished or pardoned – and whether there is any realistic mechanism for punitive measures which fall short of criminal prosecutions, but which would satisfy the obligations imposed on the successor regime under international law. This central issue impacts directly on the pro-active preventative potential of reconciliation through truth recovery.
Present indications are that indemnification from civil and criminal liability is likely to be the effective quid pro quo for disclosure on the part of perpetrators of past gross human rights abuses. This de facto situation has dramatic implications for the pro-active or preventative dimensions of the "truth recovery" process and seriously threatens the capacity of a Truth Commission to achieve the objectives of re-establishing the credibility and restoring the democratic nature of state institutions inherited by the new government. Furthermore, if punitive measures are not seen to be taken at some level, this could jeopardise the attempts at restoration of the rule of law in South Africa and the re-building of a post-apartheid moral order.
Whilst prosecutions may be desirable in rebuilding the credibility of the judiciary as a matter of principle, a prosecutorial process which fails due to lack of evidence could do even more to damage the credibility of these state institutions. Nonetheless, any process which falls short of doing full justice, may compromise attempts to assert accountability as a governmental principle. As a minimum requirement, it would seem that the publication of the identity of those responsible and their removal from public office is a punitive measure essential to building a culture of accountability and to restoring public confidence in state institutions. However, constitutional constraints, problems of due process and, particularly the political cost, may well inhibit even this approach.
The danger of a "truth recovery" process which offers little demonstrable action in this regard, is that it may fail to generate the popular confidence in a new state methodology. Even more importantly, if the process amounts to little more than a mere testimony of victims and an amnesty process hidden from public view, then this may convey a particularly dangerous message of sustained impunity to those within these inherited state structures. Furthermore, this may in fact contribute to consolidating the power and organisational culture of abusive and unaccountable practices within institutions of the state. Formal political change does not necessarily deal with such sustained organisational cultures. If this is not tackled by the Truth Commission, it may even work against the principles of accountability so essential to community empowerment in South Africa.
Empowering Civil Society: The role of the Truth Commission
The Centre for the Study of Violence and Reconciliation believes that the proposed Truth Commission can become a creative vehicle for empowering civil society and in concretely building reconciliation. This is crucial in the process of building a culture of human rights in South Africa. There are key interventions which the Centre therefore seeks to make in this process.
The Legislative Process
It is imperative that the Centre continues (along with other NGOs) to input into the process of drafting legislation for the Truth Commission. This should continue to be based on international research and a view to international law obligations in respect of these gross abuses of human rights. A constitutional commentary on the legislation may be of assistance to the drafters, or to the Constitutional Court when this matter comes before it.
Building Reconciliation and a Human Rights Culture
Both politically and in terms of its social value, the proposed Truth Commission needs to clearly articulate a "reconciliation programme". It is simply not adequate to assert that public knowledge is a prerequisite to forgiveness or to assume that disclosure of past human rights abuses will necessarily result in a culture of transparency and accountability. The Centre for the Study of Violence and Reconciliation proposes to run several programmes to facilitate this process of empowerment:
1. Programmes within Police Community Relations Forums
The Truth Commission programme must be fed into police community forums in order to empower local communities in their relations with police, and so as to educate both parties about the impact of human rights abuses on the police-community relationship. Lessons from the Truth Commission should be used constructively rather than as a basis for antagonism and recrimination. This can be achieved in partnership with the Ministry of Safety " Security, the Justice Ministry, the Centre's Policing Research Project and the SAPS.
In addition, it is essential to launch human rights education within the SAPS and to develop training curricula which deal with this issue at the level of basic police training.
2. Public Education Programmes on International Human Rights Standards
Such programmes can build on the work and profile of the Truth Commission and can be linked to South Africa's ratification of the major international human rights instruments. Such a campaign could be run in partnership with the UN Centre for Human Rights and the South African Ministry of Justice.
3. Schools Education Programme
The Centre for the Study of Violence and Reconciliation is already engaged in schools based-education, teacher training and curriculum development related to violence. This must be extended to incorporate popular education around human rights, particularly linked to the Truth and Reconciliation Commission. In partnership with education and training institutions, representative teachers' bodies and the Ministry of Education, this could be vital in the development of a human rights culture within one of the key target populations in South Africa: school-going youth.
4. Delivery of Victim Aid
The Centre for the Study of Violence and Reconciliation' Trauma Clinic is well placed to contribute to the delivery of rehabilitative services to victims who come before the proposed Truth Commission. This would be a concrete service attached to the Commission and could profitably be structured and coordinated in partnership with similar service providers around the country. The delivery of such a service is critical to the healing and reconciliation components of the proposed Truth Commission.
These are but some of the areas in which concrete work can be done to sustain and build a human rights culture on the basis of the operation of a proposed Truth and Reconciliation Commission in South Africa. It is also proposed that the Centre for the Study of Violence would be well placed to coordinate, manage and sub-contract such programmes in partnership with other agencies. In any event, these educative and empowerment programmes are critical as adjuncts to the Commission itself, and can act as a vehicle for meaningful empowerment of civil society in the process of building national reconciliation.
Notes:
2 Davis, D., Cachalia, F. And Storey, D. "A power to conceal the truth", The Star, 23/10/1992. The Bill was defeated in the House of Delegates (Indian House in the tri-cameral parliament). De Klerk's subsequent attempt to push the Bill through via the President's Council attracted a public outcry – including the article by Davis et al written in response to the Bill. A few days later the ANC published its own report on the abuses in the detention camps in Uganda, Tanzania and Angola. ANC President Mandela apologised and took responsibility on behalf of the ANC leadership.
3 Fortunately, the ANC rejected the position put forward by the government at this time. However, the point is made by Davis et al. That any acts such as this, which were passed by the then government, should be treated as disguised self-amnesty laws – passed by a government forgiving itself, and therefore indispensable. Despite the fact that this may have been the result of wider negotiations involving other non-governmental agencies, in terms of the reviewability of legislation under the constitution, this should not be treated as binding or free from such review … at least until ratified by the current Government of National Unity.
4 Memorandum by the Parliamentary Committee of the General Council of the Bar of South Africa (October 23 1992), pp. 1-2.
5 Simpson, G. "Blanket Amnesty Poses a Threat to Reconciliation", Business Day, 22/12/1993.
6 For a brief discussion on the broad-based definitions of "security" in South African legislation as well as for a partial description of the range of this legislation, see: Africa, SE. "An Assessment of national Security Legislation in South Africa", Military Research Group, unpublished (1992). Also see in Williams, R. "Covert Action and Democracy: General Considerations and Concepts", Military Research Group, unpublished (1991); and Baxter, L. opcit., pp.235-6. For a slightly different prism on the pervasive effect of secrecy clauses within security, armaments, intelligence, defence and law enforcement legislation, see: Simpson, G. "Militarisation and the Environment: Secrecy Clauses and the Role of Security Legislation in Environmental Degradation", Unpublished paper (1992).
7 Baxter, L. Administrative Law, Juta " Co.: Johannesburg (1984), p. 233.
8 Postscript, Constitution of the Republic of South Africa Act, 200 of 1993, P.180.
9 For a fuller and more thorough canvassing of these issues, see Simpson, G. "Submission to the Minister of Justice, Mr. Dullah Omar MP, on the subject of: Proposed Legislation on Amnesty/Indemnity and the Establishment of a Truth and Reconciliation Commission", Centre for the Study of Violence and Reconciliation (June 1994).
10 An illustrative example is the public interest in environmental protection. My article tentatively examines the role of secrecy clauses within "security legislation" in inhibiting the flow of information vital to public interest in environmental protection. Acts which either directly or indirectly achieve this in the name of state security, include the Defence Act 44 of 1957, the Armaments Development and Production Act 57 of 1968, the Protection of Information Act 84 of 1982, the National Key Points Act 102 of 1980, the National Supplies Procurement Act 89 of 1970, the Petroleum Products Act 120 of 1977, the Nuclear Energy Act 92 of 1982 and the Internal Security Act 74 of 1982, to mention but a few. Simpson, G. opcit. Also, see: Africa, SE. opcit.
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