South Africa's history
A just society requires that legacies of violence are addressed and that the state functions for all citizens irrespective of ethnicity, religion, gender and race.
Yet, despite being the poster child for transitional justice, twenty-seven years since the first democratic elections in South Africa citizens continue to mobilize and demand that the government fulfils their promises of justice for apartheid-era crimes.
Indeed, the reconciliation project in South Africa has been compromised by the lack of criminal accountability for apartheid era-crimes, unrealised reparations for the victims of apartheid, inadequate institutional reform and untransformed public spaces. And, in reality, the structural violence of systemic racial policies which impacted the vast majority of black South Africans has resulted in legacies of poverty and inequality.
In addition, the issue of inter-generational trauma has become apparent as those born since the end of apartheid voice their alienation and disappointment in the country’s failure to address its past.
South Africa is thus an important site to understand the modes of memory production following the transition, as well as frustrations regarding who is excluded from these narratives.
The Truth and Reconciliation Commission
An amnesty provision was included in the Interim Constitution, which would pave the way for the future adoption of the Promotion of National Unity and Reconstruction Act 34 of 1995. A blanket amnesty was specifically rejected, instead the amnesty process would be managed by the Truth and Reconciliation Commission (TRC), established under the Promotion of National Unity and Reconstruction Act. Amnesty could be granted to individuals who had applied for amnesty, and who had fully disclosed the truth. This was seen as a compromise to ensure that perpetrators could not simply erase evidence of human rights atrocities, and the country could fully understand its dark history, and move forward.
The TRC was a temporary body vested with strong quasi-judicial powers, which held hearings on matters brought to it by victims of serious human rights violations committed in the context of apartheid. The Commission was one of the first truth commissions set up globally, and developed many of the rules which typically characterise truth commissions today. The Commission comprised three committees: the Amnesty Committee (AC), the Reparation and Rehabilitation Committee (R&R Committee), and the Human Rights Violations Committee (HRV Committee).
As its name suggests, the HRV Committee was tasked with investigating human rights violations that occurred during apartheid. It determined the identity of victims, their fates or whereabouts, the harm they had suffered, and the persons or organisations responsible. Once these facts had been determined, the case was sent to the R&R Committee. This second committee oversaw the reparation due to victims. Its priority was restoring victim dignity, and making provisions for the rehabilitation and healing of victims, their families, and communities. The committee could formulate policies and make recommendations to government to achieve this. Finally, the AC considered whether certain perpetrators of apartheid-era crimes could be granted amnesty. Although in a perfect world, no perpetrator should escape punishment for their crimes, the AC was felt to be a necessary compromise allowing the country to move on from the past.
The TRC was the first truth commission to offer amnesty to individuals who fully disclosed their involvement in politically motivated crimes in public. The amnesty hearings were held in public before the AC, composed solely of judges. The process thus resembled a judicial process to some extent. Both amnesty applicants and the victims affected by the amnesty application had the right to legal representation. In the applicants’ case, the State provided free legal representation where needed. Victims also had the right to oppose the amnesty application. While some perpetrators of apartheid crimes applied for amnesty, others chose not to. Of those who had applied, some were refused amnesty because their crime was not politically motivated, or they had failed to disclose the whole truth, as required.
The TRC conducted its work under a restorative approach to justice. This is a legal philosophy aimed at rehabilitating offenders and encouraging reconciliation between perpetrators and the people they have harmed. It is in contrast to a retributive approach to justice, which would focus on punishing offenders. The restorative approach was felt to be more in line with the new democratic nation based on respect and tolerance. The TRC hearings began in 1996, and continued until 2000. In its Final Report released on 21 March 2003, the TRC stressed that amnesty should not be seen as promoting impunity, and highlighted the imperative of ‘a bold prosecution policy’ in those cases not amnestied to avoid any suggestion of impunity, or of South Africa contravening its obligations in terms of international law. As many of the crimes were of a serious nature, such as murder, enforced disappearance, torture, and abduction, these could amount to crimes against humanity. The compromise of granting amnesty for some, in order to support a peaceful transition, did not negate the State’s responsibility to pursue criminal investigations and prosecutions in cases where amnesty had not been applied for, or had been refused. This compromise formed the heart of the compact struck with victims.
More information about our continuing work towards justice is available at the following links: