This resource is hosted by the Nelson Mandela Foundation, but was compiled and authored by Padraig O’Malley. It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
2. Introduction
As part of the process of the transformation of our country, the ANC had to consider its approach to the difficult but critically important question of what the new South Africa should do with those among our citizens who were involved in gross human rights violations during the struggle for our emancipation.
The choices we had to make can be stated in a simple and straightforward manner.
We could have decided to hold our own Nuremberg Trials.
We could have decided that all that should be done should be to forgive everything that has happened in the past.
We, however reached the conclusion that neither of these would be the correct decision to take.
In considering the correctness or otherwise of this conclusion, the point needs to be borne in mind that we are in transition from an apartheid to a democratic society.
This is not a single event but a protracted process.
What this speaks to is an unjust cause on one side and a just cause on the other.
Inherent to the system of white minority domination in this and all other countries where it occurred, was the philosophy and practice of the use of force to ensure the perpetuation of the system.
Force and violence by the dominant against the dominated, the contraposition of power to powerlessness, the attribution of mystical possibilities of retribution to the governors who can visit their wrath on the third and fourth generations of those who hate them, the suspension of all social norms, to enable the state and servants of the state to resort to the unbridled use of violence - all this, and more besides, sustains the continuity of colonial rule.
To maintain its internal integrity, coherence and rationale, this system could not but integrate in its world vision the concept of humans with a right to govern and sub-humans privileged to be governed.
Among other things, this paradigm allows those who enjoy the right to govern the ethical framework which permits them to use maximum force against any sub-human who would dare question his or her duty to accept the sacred obligation to respect the need to be governed.
The simultaneous and interdependent legitimisation of the two inherently anti-human concepts of racial superiority and the colonial state as the concentrated expression of the unlimited right to the use of force, of necessity and according to the inherent logic of the system of apartheid, produced the gross violations of human rights by the apartheid state which are the subject of part of the work of the Truth and Reconciliation Commission.
It was as a result of the correct understanding of the nature of the system of apartheid that the United Nations characterised the system itself, and not merely its logical results, as a Crime Against Humanity.
With regard to the narrower context within which the TRC is considering this matter, the theoretical foundation of the enquiry would be the matter we have referred to, the legitimisation of the use of force in general but especially against those who would dare challenge the system.
This has two consequences.
One of these is the elevation of the state organs of repression above all other state structures, their exemption from all norms of common law consistent with limitations on the use of force, the conferring of powers on individuals to mete out violence as they deem fit and the consequent brutalisation of such individuals so that the perpetration of violence becomes their second nature.
The second of these consequences is the demonising by the state of those it seeks to destroy and against whom therefore, it permits the maximum use of force.
This would cover both individuals and institutions or organisations. It is necessitated by the need to encase the perpetrators of violence in the psychological armour which enables them to be free of all restraint as they carry out their deadly work.
During the period since the end of the wars of independence, the racist state activated its capacity to use force in direct response to its perception of the threat posed by the forces of resistance to the survival of the system of white minority domination.
As the offensive for the destruction of this system, became more serious and sustained so the features we have described above, increasingly resorted to force and the demonising of the genuine opponents of the system.These features increasingly came to the fore and assumed precedence in state policy and practice.
In reality, it would not be difficult for the Commission to proceed from the theoretical base indicated above to construct a picture of the structures, systems and practices put in place by the apartheid regime to confront the challenge it faced, some of whose results will be subject to review as human rights violations and applications for amnesty.
This would put in their place and context issues such as:
We raise all these matters because they are directly relevant to the truth which the TRC is intended to discover and convey.
They are equally germane to the question of what will need to be done both now and in the aftermath of the work of the TRC, to ensure that our country and people are never again exposed to the threat of gross human rights violations.
Counterpoised to what we have been discussing is, of course, the movement for national liberation - the other antagonist in the conflict to which the forces of white minority rule responded in the manner described above.
National liberation movements are about the emancipation of people. They are formed to fight against oppression, for freedom. Where the oppressor must necessarily fight for the state control of the individual, the liberator struggles for the restoration of the democratic rights of the individual and the sovereignty of the nation.
These movements necessarily depend on the voluntary support of the population; they have no capacity to offer material rewards to their activists. They must therefore depend on the moral superiority of their cause, relying on this as the principal motive force which enables the movement to withstand all attempts at its suppression.
Respect for human life and the pursuit of happiness and liberty are fundamental to the philosophy and practice of any genuine national liberation movement.
Any objective study would show that the ANC, has evinced all the characteristics mentioned above, whatever the circumstances of the struggle.
In this context, it is necessary to focus attention on certain salient features which we believe are critical to the work of the TRC.
The first of these is that the ANC only decided to resort to organised violence once the oppressor regime had blocked all avenues of legal non-violent resistance.
The resort to violence was therefore a last rather than first resort, precisely because the protection of life itself is integral to the world view of the liberation movement and because the constituency of the liberation movement is, by definition, unarmed, as opposed to its opposition which, again by definition, is heavily armed.
The second of these considerations is that even when it used force, the liberation movement sought to do this in a limited way, in order to generate sufficient pressure on the oppressor regime and to create the conditions which would make a peaceful resolution of the conflict in the country possible.
When the strategic objective of the movement was stated as " the armed seizure of power by the people", the planning that took place to accomplish this objective was focussed on directing attacks against the repressive machinery of state, and not the civilian population which constituted the political base of the apartheid ruling group.
The third important point to make is that in the elaboration of its strategy, the liberation movement never sought to elevate the use of force above all other forms of resistance, but viewed the armed struggle as one of the "four pillars" of our global strategy.
Those four pillars were:
The result of this approach was that the armed struggle was never the sole nor the most important element in the strategy of the ANC.
Two consequences follow from this approach which, again, are relevant to the work of the TRC.
One of these is that the ANC always insisted on the primacy of politics over the use of force and therefore never accepted the notion that "power grows out of the barrel of a gun".
A result of this fundamental attitude was that the ANC took a principled stand against the use of terrorism as an element in its armed struggle.
It was for this reason that the ANC avoided what would have been very easy targets - namely, attacks on white civilians such as could have been carried out at schools, churches, on civilian aircraft and diplomatic missions, etc.
Another of these consequences is that the ANC trained all its combatants as armed political activists and not as mere soldiers whose only responsibility was to understand and carry out orders from a superior command.
This was very importance because the actions of each combatant had to be aimed at winning the support of the people, Combatants had to be able to operate in circumstances in which they were cut off, not only from their commanders but from the leadership of the movement in general, and in which the circumstances in which they found themselves would change rapidly, calling for prompt decision making.
Two other matters critical to the work of the TRC are, first, the concept of a just war and the place of the struggle for national liberation in international law, and secondly, the boundaries of acceptable conduct within an irregular war - guerilla warfare.
Let us deal with the first of these.
The constitutional settlement expressed in the 1910 Act of Union resulted in the formalisation of the definition of the African majority as the colonised, with the colonial master being the state that would be constituted by the combined Boer-British white population.
Great Britain granted independence to white colonists, while conceding the right and the power to these colonialists to treat the indigenous population as colonial subjects.
This resulted in the adoption of the phrase "colonialism of a special type" to describe the political and socio-economic realities which persisted until the formation of a democratically elected government in 1994.
During the course of this century, international law finally recognised the right of nations to self-determination, up to and including independence.
With this, came the acknowledgement of the right of any people denied the right to self-determination to engage in struggle, including armed rebellion, to gain that right.
This correct development constituted the legal recognition and codification of a reality which had been established, among other such outstanding historical events as the American and the Haitian Wars of Independence.
The majority of the people of our country, oppressed as a colonised people, had as equal a right to self-determination and the right to engage in struggle to gain this right as did other colonised people.
We, like these other peoples, were therefore justified in engaging in a just war.
This is the first and fundamental condition that must be acknowledged and recognised in the context of any assessment of our armed struggle for liberation, such as the TRC may have to make as it works to discharge its mandate.
We have already stated the second element that bears on this issue - that the ANC only opted to exercise its right to resort to a just war when the apartheid regime closed all avenues to a peaceful resolution of the injustice represented by colonialism of a special type.
The position stated in the Manifesto of Umkhonto we Sizwe published in 1961 was correct, that in these circumstances, we had no choice but to submit or fight.
We chose to fight rather than submit and by submitting, contribute to the perpetuation of the apartheid crime against humanity.
The oppressor regime will argue that the legally constituted South African apartheid state enjoyed the rights that accrue to all states and that rebellion against the established order had to be suppressed by all legal means available to the state.
The issue however turns on the fundamental consideration that no legitimacy can attach to a jurisprudence elaborated to enforce a crime against humanity, as no notion of illegality can attach to the fact of insurrection against a crime against humanity.
The naked reality is that our country would not be free today if we had depended for our emancipation on legal parliamentary opposition, including the white, tri-cameral and bantustan processes.
The second matter that requires consideration is, as we have said, the concept of an irregular war.
In the period since the outbreak of the Second World War, there are many examples of such wars with which the TRC could familiarise itself.
Any objective study of the military features of such wars would show certain extraordinary circumstances which the TRC would need to understand in order to order to deal with the expression of this phenomenon in our own country.
We believe that it is important for the TRC to understand these circumstances because, without such understanding, it would be impossible for the Commission to properly consider the conduct of the campaign of armed resistance to the system of apartheid.
In this context, there are four matters on which we will make detailed presentations.
The first of these is that as a movement we made a determined and sustained effort to ensure that we conducted an irregular war as far as possible according to international conventions governing the humanitarian conduct of warfare.
The second is that, nevertheless, cadres of the movement had to deal with varied objective and subjective situations that were presented to them by particular circumstances, without the possibility of abiding by stipulated rules and norms.
If any resultant behaviour was inconsistent with these rules and norms, at no stage could it ever be suggested that these cadres or the movement as a whole had thereby fundamentally betrayed the humane character of the movement for national liberation.
The third is that this movement had to protect itself from destruction and defeat by a determined enemy that was prepared to use any means to ensure the destruction and defeat of the movement for national liberation.
As a movement, we therefore had to take the necessary measures to defend ourselves. Many of these defensive measures had to be carried out in emergency conditions requiring a succession of immediate decisions, without which the movement itself might be destroyed.
The fourth consideration is use of the enemy of "false flag" - operations seemingly originating from within the movement, but, in reality, carried out on the instructions of the enemy's security forces in order to discredit the liberation movement.
In the end, the fundamental issue we would like to present to the TRC is that as a liberation movement, we engaged in a just war for national liberation.
The overwhelming majority of the actions carried out in the course of the just war of national liberation do not constitute "gross violations of human rights" as defined in the Act establishing and mandating the TRC.
Within this overall framework, there were particular actions carried out by cadres and supporters of our movement which we believe fall within the ambit of the work of the Commission, but must, nevertheless, be treated within the context we have described above.
The political and operational leadership of the movement accepts collective responsibility for all operations of its properly constituted offensive structures, including operations described in the preceding paragraph.
The ANC will therefore not be making any representation about those activities in its conduct of the struggle for national liberation which we deem to constitute legitimate actions carried out during a just and irregular war for national liberation.
With regard to those operations which we believe fall within the ambit of the work of the Commission, we will provide the Commission and the country with the necessary information, while encouraging those members and supporters of our movement where necessary to apply for amnesty.
In the context of what we have said above, it is necessary that we consider three questions relevant to the work of the Truth and Reconciliation Commission. These are:
National Reconciliation
The most important issue in this regard is that the grief of particular individuals, important as it is to the affected individuals and the nation, is relevant also to the extent that it contributes to the achievement of the larger goal of national reconciliation.
National reconciliation will only have meaning if it addresses the historic conflict in our country between black and white.
Through centuries of this conflict, the names of the players have changed continuously, regardless of their colour and the causes they served.
What never changed was the character of the conflict, which was between the white colonising forces and a black liberation movement, based on a social system which elevated the white at the expense of the black.
National reconciliation has to be between black and white.
Without transformation to end the disparities of privilege and deprivation which are the legacy we have inherited from our colonial and apartheid past, but which continue to define the present, national reconciliation is impossible.
Whichever way the TRC interprets its mandate, it cannot avoid the conclusion that the ghost that needs to be laid to rest is - the ending of the domination of the black by the white, in all spheres of social existence.
If our society does not achieve this, racial conflict will continue. The goal of national reconciliation will not be achieved.
Clearly, this objective cannot be achieved by the TRC alone.
It also emphasises the obligation that rests on the Commission to make its own recommendations as to what the larger and varied society from which it is drawn might do, to contribute to the realisation of the goal of national reconciliation.
Protection from Gross Violations of Human rights
Systematic violations of human rights are a manifestation of a social system, rather than the exceptional faults of particular individuals.
To ensure that our country and people are never again exposed to such systematic violations of human rights as occurred under apartheid, it is necessary that we construct a constitutional, political and socio-economic order which inherently protects human rights, and has the means to defend itself against any tendency to limit or violate those rights.
The mandate for the construction of such a system of course rests with bodies other than the TRC. As a movement we are convinced that these institutions are carrying out their mandate .
But we also believe that the TRC has an important role to play in helping to ensure that the specialised institutions established by the apartheid regime to carry out a campaign of repression are completely dismantled.
We refer here not to normal state organs such as the police, the Defence Force and the intelligence services, but to other clandestine structures established under the National Security Management System, some of which continued to operate as part of the "third force".
The exposure and destruction of these structures is important to ensure that they are stopped from actually or potentially engaging in any acts of destabilisation.
This is particularly important in light of the fact that persons who belong to these structures have been trained and motivated as anti-democratic operatives and, in many instances, will not have changed their ideological colours.
It is also important that the nation as a whole should be familiar with this machinery as part of the process of raising the level of national vigilance so that it is difficult for any government in future to create similar structures for use against the people of our country.
Reparations
A crime against humanity, it is inevitable that the apartheid system will have had a detrimental effect on all black people in our country.
In this sense, all the oppressed people could correctly assert that they are entitled to reparation for harm caused to them by the apartheid system.
To come more narrowly to the issue of reparations as it relates to the TRC, it is important to bear in mind that millions of people were involved in the struggle for national liberation, whatever the particular form of their engagement.
To defeat this struggle, the apartheid regime carried out a widespread campaign of terror which affected hundreds of thousands of people to one degree or another.
What these masses sought by their engagement in struggle was not personal reward but the emancipation or our country.
Their greatest reward is the victory of the democratic cause and the reconstruction and development of the country in a manner that radically improves the quality of life of the people in as speedy a manner as possible.
The TRC will therefore have to look for ways and means in which to extend reparations to the people as a whole. A lot of creative thinking will have to go into this so that steps are taken which will inspire the people to accept that such reparation as is due is made.
Where reparations are made to individuals, whatever the form of such reparation, the point will have to be taken into account that the numbers of people entitled to such reparation are larger than anyone of us can imagine.
As the principles of equity will have to be observed in awarding these reparations, care should be taken that the new society does not assume obligations it cannot meet.
The Role of the Individual
Many individuals have appeared and will appear before the TRC both to apply for amnesty and to tell the truth about violations of human rights, as perpetrators and victims.
However we should bear in mind that any process which visualises all individual victims of the gross violation of human rights appearing before the Commission would have to take into account that this would require that the TRC sit for many years.
Consideration should therefore be given to how the hundreds of thousands or millions of affected individuals and families might be recognised, and how to draw the necessary lessons and examples from a wide variety of individual experiences, without it being necessary that everyone appears before the Commission.
We should not lose sight of the fact that one of the central objectives of the TRC is the achievement of national reconciliation.
An element of this is described as personal catharsis, and this should reinforce the achievement of the broader national goal which relates to the building of a democratic, peaceful and non-racial South Africa.
It is also important that, within its lifetime, the Commission should complete the amnesty process, to ensure that the democratic state is not left with the responsibility of instituting criminal investigations and the possible prosecution of people for actions that took place during the period covered in the mandate of the TRC.
If this were to happen to any significant degree, it would mean that the TRC had failed in its mission and had, by that failure, condemned our country to continuing conflict about events of the past rather than the reconciliation sought from the work of the TRC.
The ANC is ready to assist in the gathering of such information from individuals and families as might be relevant to the work of the TRC. We would do this to help ensure that the TRC process is as inclusive as possible.
At the same time we believe that it is important that the individual presentations should assist in dealing with the fundamental question of conflict among organised forces and between social systems, which is what the TRC must address if it is to discharge its responsibility to the nation.
Conclusion
The ANC is committed to doing everything in its power to help the TRC and the nation to know as much as is possible about the events of the period the TRC is mandated to investigate.
We believe that the TRC should conclude its work as quickly as possible so that we do indeed let bygones be bygones and allow the nation to forgive a past it nevertheless dare not forget.