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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
VI. The Need For Comprehensive Findings
The TRC was also required by its founding legislation to render, among other things, a 'comprehensive' account of its findings regarding gross violations of human rights. Four factors, however, cast doubt on the comprehensiveness of its report.
1. No final report as yet
As earlier noted (see Introduction, above), the TRC's founding legislation was amended in 1998 to allow the amnesty committee to continue dealing with outstanding applications, while the rest of the commission turned its attention to compiling a report on its findings and activities. The amendment also stipulated that the commission would reconvene, after all amnesty applications had been resolved, to 'complete its final report'.
It is clear, thus, that the present report is not a final one. Mr Malan, in his minority view, urges that the current report 'be viewed as preliminary', and that it be 'revisited after completion of the amnesty process'. The rest of the commission, in its rejoinder to Mr Malan, seems adamant, however, that the present report 'gives a full and comprehensive account', up to the date of its publication, and that 'there is no basis whatsoever for regarding it as "preliminary" or subject to revisiting in any subsequent reports'.
This view is difficult to reconcile with the relevant statutory provisions. It is also somewhat at odds with what Archbishop Tutu has said in his foreword to the report. Archbishop Tutu acknowledges that the current report 'cannot, strictly speaking, be considered to be final'.
Once all amnesty applications have been resolved, he continues, the commission 'will be recalled to consider the implications of the [amnesty] hearings that have taken place and to add a codicil to the report'. Only then, he concludes, 'can the commission's report be regarded as final'.
The commission, in its rejoinder to Mr Malan's minority view, seems mistaken thus as to the status of the current report. Most of the media have been mistaken, too, for they have generally described the TRC's report as a 'final' one-contributing to a widespread public misunderstanding which the commission has not attempted to correct. But the current report will have to be revisited in the light of the evidence arising from outstanding amnesty applications. More than a 'codicil' may have to be added, moreover, if full account is to be taken of the amnesty evidence that has yet to be considered-which amounts to no less than 92% of the relevant amnesty testimony. Until then, of course, the commission's findings of accountability cannot be regarded as settled or, indeed, as justified.
2. The amnesty evidence outstanding
As earlier noted, amnesty applications dealing with gross violations of human rights totalled some 1 700-and the great majority of these remained still to be heard when the TRC report was written. Of these 1 700 or so applications, about 750 were lodged by members or supporters of the ANC. Very few of these 750 ANC applications had been dealt with by the time the commission compiled its report. Most of the evidence contained in these 750 amnesty statements has not been properly canvassed in the TRC report. Indeed, it could not have been-for these statements could not qualify as tested and substantiated evidence until they had proceeded through public hearings.
(Since the publication of the TRC's report in October 1998, public hearings have focused on some of these ANC applications. They have provided, for example, an insight into the activities of the ANC's self-defence units (SDUs). Some SDU members have sought amnesty for a variety of gross violations, including the killing of IFP supporters as well as suspected informers or collaborators. Details of these violations have not, of course, been included in the TRC's report.)
In addition to these 750 ANC applications, applications for amnesty were made on a 'collective' basis by more than a hundred of the ANC's most senior leaders-including Mr Thabo Mbeki. The applications, said a spokesman for the ANC, Mr Ronnie Mamoepa, were 'in keeping with the principle of collective responsibility for acts and conduct committed in the course of the just war against the system of apartheid within the framework of ANC policy'.
Amnesty applications made on this basis by 37 of these ANC leaders (again, including Mr Mbeki) came to public attention when these individuals were granted amnesty in chambers in November 1997. This decision was subsequently set aside by the Cape of Good Hope High Court because, among other things, the full disclosure required of all amnesty applicants had not been made. A new amnesty panel, convened to consider the applications afresh, has since ruled that the applications of 27 of these leaders (including Mr Mbeki) do not qualify for the granting of amnesty. They fall outside the ambit of the commission's founding legislation, which does not cater for the assertion of a collective responsibility on the part of organisations.
Since this ruling the amnesty applications of a further 79 ANC leaders (including seven ministers and three deputy ministers) have likewise been rejected by the TRC. The reason given has been the same-that the commission's founding legislation does not allow the granting of amnesty on a 'collective basis'.
None of the amnesty applications lodged by these leaders casts light on the possible role of the ANC alliance in the political conflicts of the past. It is questionable, too, if any of these leaders will be prosecuted in open court and the ANC's possible involvement in violence thus brought to public attention. The minister of justice, Mr Dullah Omar, has stated that decisions on prosecution rest with Mr Bulelani Ngcuka, the national director of public prosecutions (who at the time of his appointment to his current post was an ANC leader and deputy chairman of the National Council of Provinces). But Mr Omar has also made it plain that no member of the ANC's national executive committee will face charges, as none has 'taken part in any crimes'.
Most of the amnesty evidence that had been heard by the time the TRC compiled its report came from the side of the security forces. Overall, members of the security forces lodged some 350 applications for amnesty-far fewer than supporters of the ANC. An impression to the contrary arose, however, because the amnesty hearings that were conducted before the TRC published its report featured primarily the applications lodged by former policemen and soldiers. The evidence emerging at these hearings filled the media's reports of the TRC's activities, while comparatively little attention was focused on the applications lodged by ANC supporters.
3. Indemnity without disclosure
When the former government lifted the bans on the ANC and other organisations in February 1990, it was necessary to provide a temporary immunity from prosecution or civil suit to ANC leaders in exile to enable them to return to South Africa and engage in constitutional negotiations. The Indemnity Act of 1990 was passed for this purpose.
This act also provided for the granting of permanent indemnity from prosecution or civil suit to individuals not yet convicted of any offence. In practice, its application was governed by the so-called Norgaard principles. These principles, developed in the context of the Namibian transition by Professor Carl Norgaard, then president of the European Commission for Human Rights, required a proportionality between the act in issue and the political objective sought. In Namibia, this proportionality test had excluded the granting of amnesty for the killing of a civilian, and had done so on the basis that a political motive could never justify the murder of a non-combatant. In South Africa, reference to the Norgaard principles initially excluded those guilty of killing civilians for political purposes both from indemnity under the 1990 act, and from early release from prison (under other legislation allowing prisoners a remission of sentence).
In 1992, however, a Further Indemnity Act was passed. This provided for the release of 'all prisoners whose imprisonment was related to political conflict of the past and whose release could make a contribution to reconciliation'. Under this criterion, the Norgaard principles of proportionality fell away.
Under the Further Indemnity Act, some 200 prisoners were released by agreement between the ANC and the NP. In addition, all those who had been refused indemnity in the past had their applications reconsidered in the light of the new criterion, and this resulted in many hundreds of additional releases of individuals who had not previously qualified. Further, after the general election in April 1994, approximately 250 individuals were indemnified in terms of recommendations made by a committee chaired by Mr Brian Currin. (This had been appointed by the minister of justice, Mr Dullah Omar, to deal with some 1 000 applications that remained outstanding.)
Those released under the 1992 legislation included, for instance, Mr Robert McBride, an ANC leader who had been convicted of murder for planting, at a beachfront bar in Durban in June 1986, a bomb that killed three people and injured 69. They also included, by way of further example, two other ANC supporters, Messrs Nthetheleli Mncube and Mzondeleli Nondula. Mr Mncube had been sentenced to death in 1988 for the killing of a commercial driver in a landmine explosion, and for the murder of two policemen in an attempted escape from custody. Mr Nondula had been sentenced to death in the same year for killing six members of the de Nysschen and van Eck families in a landmine explosion near Messina in 1985. Those released also encompassed, from the other side of the political spectrum, Mr Barend Strydom-a former policeman and member of an organisation called the Wit Wolwe, who had shot dead eight black people in a shooting spree in the centre of Pretoria in 1988.
What matters for present purposes is that a number of individuals were indemnified or given early releases for serious offences that included the killing of civilians-and that would have constituted gross violations of human rights, as defined in the TRC's founding legislation. According to the Department of Justice, the ANC benefited most in this regard-for some 95% of all applications for indemnity or release came from ANC members or supporters (and only about 5% from other political groupings). In all, some 2 300 ANC members and supporters were released from prison or indemnified from culpability for serious offences equivalent to gross violations of human rights. All these individuals were indemnified or released without reference to the proportionality principle-and without having to make a public disclosure of their misdeeds.
Once the TRC was instituted, moreover, they remained entitled to the benefits they had obtained under the earlier indemnity acts. The ANC supporters (and other individuals) indemnified or released in this way had little incentive to approach the TRC for amnesty. They also had little reason to place the evidence of their wrongdoing before the commission. The TRC was nevertheless obliged, in terms of its founding legislation, to ascertain this evidence and give it adequate consideration in making its findings. The Committee on Human Rights Violations was thus enjoined to 'take into account the gross violations of human rights for which indemnity had been granted or for which prisoners were released or had their sentences remitted for the sake of reconciliation and for the finding of peaceful solutions'. There is little indication in the commission's report, however, that this statutory instruction to the TRC has been adequately heeded in the compilation of its report.
4. Thousands of unexplained killings
The commission was mandated to investigate all the politically motivated killings that had occurred within its mandate period (which extended from March 1960 to May 1994). (See Introduction, above.) In the last ten years of this period-from September 1984 to May 1994-at least 20 500 people were killed in political violence. (This figure has been compiled by the South African Institute of Race Relations on a careful basis that understates, if anything, the total number of political killings that took place in this decade.) This total excludes, moreover, the political fatalities that occurred between March 1960 and August 1984.The commission makes little attempt to quantify how many po- litical fatalities occurred within its mandate period. It explains this omission on the basis that 'human rights data are almost never taken from probabilistic samples'. Instead, 'people decide for themselves if they will make statements'. Hence, the TRC 'did not carry out a "survey" of violations in the sense of drawing a probabilistic sample of victims. Those who chose to come forward defined the universe of people from whom the commission received information'.
Some of the ramifications of this methodology have earlier been noted (see The gathering of victim statements, above). What matters for present purposes is that the TRC did not even try to determine how many political fatalities had occurred within its mandate period. It did so, moreover, for a reason that is unconvincing. The choice of whether to make a statement about a human rights violation-whether to the TRC or any other organisation-is, of course, a personal one. This does not mean, however, that the number of political fatalities that occurred within the mandate period could not have been computed by the commission in other ways. The Institute, for one, has been compiling a database of political fatalities for many years, and especially since September 1984. Other monitoring organisations have more recently done so, too-particularly the Human Rights Committee (HRC), whose data are often cited by the TRC in its report. (The statistics compiled by the HRC have been shown to be unreliable in various respects, but this has not prevented the commission from quoting HRC data to buttress its findings.)
The commission was clearly aware of the databases compiled by 'NGOs, research institutes, and monitoring bodies'. It noted, on one occasion, that these organisations had numbered politically motivated killings in KwaZulu and Natal as somewhere between 18 000 and 20 000. (The South African Institute of Race Relations, on the basis of its careful methods of computation, has put the total of political fatalities in this region during the mandate period at approximately 10 500.)
In assessing accountability for gross violations, however, the TRC has ignored such data. Instead, the commission has seemingly confined its focus to the political killings described in the victim statements it received. These fatalities totalled 9 980-less than half the 20 500 politically motivated killings the Institute's statistics reveal for the period from 1984 to 1994 alone. Of these 9 980 fatalities, the TRC accounts for a maximum of 8 500-finding that some 4 500 were caused by the IFP, 2 700 by the SAP, and 1 300 by the ANC. Many of these deaths occurred in KwaZulu and Natal where, according to the commission, the IFP was responsible for some 3 800 killings, the ANC for 1 100, and the SAP for 700.
Whether the commission is correct in attributing the bulk of these killings to the IFP and SAP is questionable, for all the reasons mentioned in this study. Even if the accuracy of its assessment is accepted for the sake of argument, however, a further difficulty immediately arises. On a national basis, the commission has succeeded in explaining a maximum of 8 500 deaths out of a minimum of 20 500 fatalities. Within KwaZulu and Natal, it has accounted for 5 600 killings out of a total varying from 10 500 to 20 000. Its report thus falls very far short of the comprehensive account it was supposed to provide-and casts no light at all on how or why these thousands of further killings occurred.