The story of Amnesty
EARLY 1994
Unknown / South African History Archive
Amnesty:
The issue of amnesty for members of the state security forces who had been involved in illegal activities against anti-apartheid organisations was a hot issue from the very outset of negotiations. Many in the ANC were totally against granting a general amnesty. At the same time, the ANC’s National Executive Committee (NEC) recognised the need for a body to deal with all past violations of human rights from all sides of the conflict. This had partly been triggered by a report which the NEC had commissioned on the use of torture by ANC security operatives against captured enemy agents in their camps in Angola during the liberation struggle.
Three amendments to
the Interim Constitution:
A serious crisis was averted just before the elections when negotiators agreed to add section 251 to the Interim Constitution. This section required Parliament to pass an amnesty law, while leaving it to Parliament to determine exactly how amnesty would be granted. Some speculate that the generals would never have agreed to the clause if they had realised that they would be obliged to testify publicly in order to attain amnesty. For the ANC, the epilogue meant that it had managed to defeat the generals’ and NP’s attempts to secure a general automatic amnesty.
‘National Unity and
Reconciliation’:
The epilogue added to the Interim Constitution links the issues of reconciliation, reconstruction and future amnesty arrangements and famously starts with these words:
“This Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex. The pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society. The pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society.”
The end of
the epilogue:
“In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences 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. With this Constitution and these commitments, we, the people of South Africa, open a new chapter in the history of our country.”
The Promotion of National
Reconciliation and Unity
Act 34 of 1995 (‘TRC Act’):
The TRC Act, passed by Parliament in 1995, described the scope and terms of the amnesty process as required in the Interim Constitution. It stated that in order to obtain amnesty, applicants would have to prove a prior affiliation with a known political organisation; demonstrate that they committed ‘an act associated with a political objective’ between March 1960 and May 1994; and fully disclose all facts relevant to his political act. Applicants who satisfied these requirements would receive protection from both criminal and civil liability.
Opposition
to the Act:
The Azanian People’s Organisation (AZAPO) and others applied to the Constitutional Court for an order declaring section 20(7) of the Act unconstitutional. This was the section that stated that if the perpetrator is granted amnesty, they cannot be criminally or civilly liable.
The judgment:
The Court upheld the constitutionality of the section while acknowledging that it limited the applicants’ right in terms of section 22 of the Interim Constitution to ‘have justiciable disputes settled by a court of law.’ The Court held that without this section, there would be no incentive for offenders to disclose the truth about past atrocities. The truth might unfold with such an amnesty, thus assisting in the process of reconciliation and reconstruction. The Court also noted that such an amnesty was a crucial component of the negotiated settlement itself, without which the Interim Constitution would not have come into being.
In their own words
“While on a brief trip to London, I received an urgent fax from ANC headquarters about the stance of the generals … My proposal was to reject agreeing to a general amnesty, but instead to allow amnesties to be granted to individuals who acknowledged the truth about their involvement in past violations in the course of the conflict. An important qualification was that Parliament should be responsible for determining the modalities for granting these amnesties.”
-Albie Sachs, then member of the ANC National Executive Committee
“Indemnification of the perpetrators is likely to be considered necessary for 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.”
–Graeme Simpson, then Director of the Centre for the Study of Violence and Reconciliation talking about future amnesty legislation
“[Punish or Pardon] … are not in fact mutually exclusive. They exist along a policy continuum, the precise mix will depend on the political context.”
-Firoz Cachalia, lawyer and political activist
“For the sake of reconciliation, we must forgive, but for the sake of reconstruction, we dare not forget.”
–Lourens du Plessis, then Professor of Public Law at Stellenbosch University
