This resource is hosted by the Nelson Mandela Centre of Memory, 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 It is the product of almost two decades of research and includes analyses, chronologies, historical documents, and interviews from the apartheid and post-apartheid eras.
24 Mar 1997: Sachs, Albie
POM Justice Sachs, the last time we talked you mentioned that you were one of the people who were deeply involved in discussions that set up the Truth & Reconciliation Commission and today, if it doesn't fall outside your legal capacities, I'd like to talk about the TRC. First of all, what is the concept of justice that underlines the commission and how does the concept differ from, say, concepts of justice that you would face as a Justice on the Constitutional Court?
AS I don't think it's fair to ask a Justice about justice. It's like asking, I suppose, a General about war. It's something you do. Let me make it very clear, you were kind enough to pose the question to me as Justice Albie Sachs. I'll take that as a courtesy, I'm not responding as Justice Albie Sachs, I'm not responding in my judicial capacity at all or using any insights I might have gained as a judge and I want to stress very, very firmly that I'm speaking for the historical record, I'm not speaking as part of the contemporary debate and certainly not as part of the legal or jurisprudential debate.
POM As I've said to you before, nothing that I record will be published until at least the year 2000.
AS The year 2000 is not all that far away and we've already had litigation on the TRC. We might have litigation in future, so in addition to any other controls and embargoes there might be, what I'm saying now is strictly embargoed and I would require express consent.
POM You have that consent and you will get it back in the transcript that I will send you, that you have the consent.
AS Right. So it's not just the accuracy of the statement but the consent to use it in future and to identify me as the author. On that basis I can speak quite freely and I think it is quite important for those of us who participated in different ways to record our memories of the events and to help build up a picture of what was going on and how it was understood. The truth and reconciliation process had to simultaneously serve a number of different ends. I don't think it can be described as achieving one purpose. It secured a very important critical and pragmatic function and this is part and parcel of the whole process of restoring justice or creating a just system in South Africa. These are not separate issues. We wouldn't have had elections which introduced the whole new constitutional era, which introduced the Bill of Rights, which gave us a new parliament, a new presidency, which gave us a Constitutional Court if there hadn't been an accommodation that brought in the Security Police. They were aware of plans to bomb the elections out of existence and they indicated that they would safeguard the elections provided they got some guarantee that they wouldn't go to jail immediately afterwards and they didn't try to justify it on moral grounds or in any other way. They simply said it's inhuman to ask us to guarantee a process that's going to just bring about humiliation, loss of jobs, prison for the whole lot of us, and in terms of the overall process of trying to find a place for everybody in the new South Africa this was a factor that had to be taken account of. So one has to ask the question, was more justice achieved in the overall sense or less in terms of this global accommodation than by simply saying that if you've committed crimes, and we're dealing with crimes under the old regime, not simply policies that were regarded as a crime against humanity, but things that were criminal in terms of South African law, the tortures, the assassinations, things of that kind, the dirty tricks, the hit squads were illegal, that's why they were covered up, that's why they were covert, and if one simply said a crime is a crime and accountability and the rule of law requires that criminals have to be punished, well there wouldn't have been anybody to punish them. There wouldn't have been a whole new democratic set-up and a Bill of Rights and a legal framework within which to consider the very questions.
The second pragmatic factor of considerable importance is that unless the trials of these criminals are conducted according to due process then what's it all about? And due process means providing and guaranteeing legal defence, it means giving the accused chances to produce their witnesses, it means a system of appeals and the courts would have been clogged up for years and years and years and you end up with a rather arbitrary outcome with some of the crooks being sent to jail and some of the people responsible possibly for the worst abuses getting off because of problems of proof, the delays, witnesses dying, things being difficult to get the truth to come out at all, and there would have been intense solidarity amongst the security officials because none of them would have had any, absent some clear smoking gun kind of proof against them, none of them would have had any motivation for coming forward as prosecution witnesses. So that was another important pragmatic consideration pointing towards another kind of a process that would uncover far more truth in relation to far more detailed situations, would not clog up the courts for years and years and years to come and the energies of judges and advocates and lawyers and very great expense to the public purse, that also had to be taken into account.
A third and more principled and more profound factor was, what is the aim of an Inquiry like this? Where should the main thrust be? If it's simply to pin legal accountability on individuals then you come up with one particular result. If it's to really uncover so that the nation knows, so that the damaged people can have a sense that their injury is understood, it's acknowledged, so that the perpetrator's identity is exposed, the nature of the deed comes out, if that is held to be more important and you measure the success, not in terms of the number of years that the perpetrators spend in prison, but as it were the volume of factual information and explanation and concrete, textured detail that comes out, then one ends up also with a different kind of a process.
So in fact the basic structure of the TRC was to relate, balance out disclosure of the truth as against indemnity and there was a direct connection between the two because it gave the perpetrators a very strong motive for revealing the truth which they wouldn't have had if all of them were simply in the dock. We couldn't use the old methods, we couldn't torture people to get information. We're dealing with events that took place many, many years back and the most powerful agency of getting the truth is from the mouths of the perpetrators themselves. Maybe we're not getting the whole truth, maybe we're not getting nothing but the truth but we are getting a hell of a lot of truth that wouldn't have come out through the ordinary court trial process and we're getting that because of the possibility of indemnity.
So here one sees pragmatic factors and the overall transformation of society and establishing the rule of law in general terms and the volume of truth that comes out, outweighing the need to get individual accountability through punishment. It might be that I as an individual feel that sending people to jail and so on is something society is stuck with as a means of showing total reprobation of conduct. I don't think it's a terribly helpful thing, I don't think it makes anybody any better. I think it gives society often a short cut way of feeling they are dealing with severe problems of personal behaviour and social problems. I can't think of anything better at the moment so I'm not denouncing that. But in terms of the historical process of finding out what happened and who is responsible for what and making future agents feel that they're going to be found out, that the truth will out, I think far more is achieved through the present process than would have been achieved even if we could ever have even got to a justice system, we wouldn't have even got there, it's purely hypothetical, by insisting that there be no indemnities at all. I might say that in the pre-election period the demand from security was very powerful for a general blanket amnesty and the negotiators, of whom I was one, we resisted that and we said that the only form of amnesty that could be granted even if as of right and not purely discretionary would be on the basis of disclosure of the truth and the way to achieve that would be to allow parliament to regulate. We didn't have to lay that down as a constitutional principle but we had to give parliament the authority to decide what the appropriate balancing was.
I would like to just conclude with what to me is proving to be a very important extra factor, well there are two extra factors. The way the TRC has been structured allows for far more to come out, to happen, than would simply happen through a court case. A court case is very narrowly focused on the question of proof beyond reasonable doubt of guilt or not. It's not the arena for people who have suffered to come and tell the world about their suffering. The only suffering that is acknowledged and permissible is suffering that goes to prove the allegations in the charge sheet. The whole tone of it, the whole mode in which evidence is presented, the strict rules about hearsay, the adversarial relationship is very inimical, very hostile to people pouring out their grief, expressing their emotions and their hopes and if one thinks of that kind of a situation Bishop Tutu is going to do far more to provide relief and a sense of acknowledgement to somebody who suffered, a victim if one can use that word, than would Judge X or Judge Y. It's a different kind of truth that one's concerned with, in a different setting in which the emotion, the counselling, the comforting - I've never seen in a courtroom anybody stroking the witness, providing a cup of tea, providing tissues for tears. It's a whole different arrangement, it's a whole different story telling.
Then when it comes to the reparations again courts are not good bodies for deciding on appropriate reparations. Courts only know basically two remedies: stop doing it, sometimes hand over the documents, and then very artificial means have been used to compute various forms of suffering and damage in financial terms for monetary compensation. This is a different kind of an engagement. This is dealing with memory, with symbolism, with collective grief and responsibility and the modes of reparation that are appropriate are of a completely different order. A court can't order, for example, that the state pay the school fees and university fees for the children of victims. A court can order the perpetrator to do that, it can't order the state to do that in the ordinary way. It can order a lump sum but not that fine-tuned, detailed thing that is very, very meaningful. A court can't say that a certain kind of memorial ought to be built with the names of victims on it. That doesn't lie within its mandate. A court can't suggest that we have a rose garden or a place of living memory with trees and lawn and a quiet secluded place where the sense of healing and almost a sense of sacredness of the sacrifice can be acknowledged. These are things that the reparations sector of the TRC can handle. And again it's a totally different process from your ordinary legal trial, civil trial or criminal trial, asking different questions, functioning in a different way with a much a more humane relationship with everybody involved, with a much wider discretion.
So I'm not arguing against court trials being restricted in the way that they are. There are very profound historical reasons for imposing all the rules and limiting the scope of what judges can do and in particular in the case of criminal trials for maintaining a presumption of innocence, for having strict rules of evidence to prevent individuals who are not guilty from being sent to jail. But when it comes to revealing truth in quantity then it's far more important to allow hearsay evidence and to allow the spontaneous narrative to present itself not in the adversarial form, than in the case of a court trial where the outcome is the punishment and the stigma attached to a particular individual.
The last point that I think is extremely valuable is that the admissions, the disclosure, is coming from the perpetrators themselves. It's almost unique in South Africa where not through torture and not through violence it carries so much conviction and even if they're not telling the whole truth, even if it's just a portion of the truth, even where they try to play down their responsibility, and there's an enormous amount of shame involved and to me shame is a very powerful punishment, in some ways more powerful than jail particularly if jail is seen as part of the instrument of the victors over the vanquished then jail is a physical confinement, it doesn't necessarily involve any internal shame. But to be seen on TV night after night confessing that you put a gun next to somebody who was tied by chains and pulled the trigger and you burnt the body and as one attorney said on behalf of his clients, he said you've got to understand my clients have never revealed these things to their families, their families always thought they were patriots and heroes and now they have to face their children and their brothers and sisters and their parents. Now I think these are powerful emotions and they do much more for the moral cleansing of society than either show trials, which obviously we can't have, or a trial in which the accused are sullen, recalcitrant, feeling that they are losing out now simply because the people they supported who had power before are out of power and there are new people in power at the moment.
So by and large I'm speaking now, what's the date? It's just after Human Rights Day, 21st March 1997, the proceedings are still going on but I think that the TRC has been extraordinarily successful in shifting or re-establishing a proper moral balance in this society and it has destroyed a lot of the smugness and this idea of let the past bury the past and let's just look to the future and forget the past. No-one can deny now what happened and its ugliness and they can't deny it because the very voice that's telling the stories is the voice of those who did it themselves and not in the form of show trials and I feel that if we tried to do it in any other way we wouldn't have got this revelation, this cleansing, this shaming without being degrading and humiliating for the individuals, without destroying their dignity. I can't see any other way.
I'm a little bit alarmed that the reparation side has been so indistinct. I think it's quite important at this moment, particularly when there is such intense pain at what's been revealed, at the skeletons being dug up, which again wouldn't have happened if there wasn't this incentive to reveal what happened. I would say that it is quite important for the reparation side to come out even if it's a few well selected cases with strong symbolism. But short of that I think the TRC is working extraordinarily well. I think Archbishop Tutu right from the beginning found the right tone. They seem to have a good administrative infrastructure. They're getting a reasonable amount of publicity so that one can see and keep in touch with the whole thing as it's going on. So my overall answer then is one of overall satisfaction that yet again we South Africans have found a uniquely South African way, drawing on experience of others, compatible with our history, our people, our culture, our needs at any particular moment to do something of considerable significance.
POM Albie, I want to go back to the concept of justice. I understand the truth part, truth will out and the past is revealed and the past is documented. Where does the justice come in?
AS If you see justice as simply sending people to jail, and to my mind it's a very arid and instrumentalist notion of justice, justice is living in a just society, establishing norms and values and procedures for ensuring that the basic values of that society will be maintained and I think this process is doing far more to achieve that than would your simply applying the old criminal law techniques have done, but we wouldn't have even got to applying the old criminal law. We wouldn't have had a country at all. We would have had a form of civil war, the institutions of democracy of the rule of law wouldn't have been there. To me you can't separate out the truth and justice aspects. It's justice in an historical sense to people who suffered, it's acknowledgement of their pain, it's public acknowledgement by the whole new society that what they went through was unjust, was wrong, and it's establishing, as I said before, the institutions and the principles, the values, the norms to ensure that these things won't happen again. And I think the present process will do far more to achieve that justice in the broad sense than would simply insisting on prosecuting individuals in the technical sense.
POM What disturbs me is a couple of things. One is that you still have the NP and its leaders and all its senior politicians who hold themselves totally unaccountable for the entire past, almost saying it had nothing to do with us, we didn't know what was going on, blood is not on our hands, passing the buck to a few bad eggs out there who are now coming forward and confessing to save their own skins but there was no conspiracy to do these things, it was not state policy to murder people and we don't see ourselves as accountable and we don't feel any guilt or we don't even show any remorse.
AS Well it's up to the TRC to make its report on things of that kind, but the fact is there wouldn't have even been fingers pointing directly at senior government officials if it hadn't been for this process which allowed the truth to come out and put them very much on the defensive, there would have been just a general sense of historical accusation by the oppressed people. Now the hard facts are coming out and they are coming out in relation to things that happened after 1990, not simply in an earlier era. But there's nothing at all to suggest that the old, or the simplistic system of direct prosecutions would have enabled anything more to come out in that respect, or any more responsibility. Where would the evidence have come from? And in that sense the report will come out, history will be the judge, the credibility of people who say we saw, heard and spoke no evil, they can't simply get away with this statement and they are under pressure now to come to terms with what they were responsible for in the past, to account and I think far more trenchantly than any other process could have allowed for. It's a slow, cumulative kind of a thing and I think it's already caused an enormous amount of heart searching. The levels of the corruption - it wasn't simply commando raids, as it were, to kill the opposition, it wasn't simply torturing people to death in order to get confessions, ugly though those things are. There was a callousness, a cruelty, having barbecues afterwards, being given medals, the kind of -
AS And the banal, matter-of-fact, a certain South African braaivleis culture that comes into it has been very sharply revealed and, as I say, not from the victims, from the perpetrators themselves in their own voice and that has been very, very powerful in compelling people who otherwise might have said the past is the past, we bury the past, we forget the past and the only thing that is relevant is that we move from that past to a better future.
Now I would say that that second part is not irrelevant. It's very relevant. It's part of the total picture that prominent individuals in the old set up, whatever their motives, did take important steps to accommodate change, to go along with change and to participate in the new democratic structures. And to me that's a positive thing, not a negative thing. It's part of the transformation itself. You don't get readymade whole new generations representing other interests in society. We don't have a politically homogeneous society, we have a very diverse society and I am thankful for that but who would provide the leadership to these other groups if it wasn't relics or remnants of the old and if many of them are tainted by what happened, well that's part of what they have to carry with them into the future. These are not all or nothing things. The pain was all or nothing, the cruelty was all or nothing, but the way you deal with it that's not all or nothing. And normally all or nothing actually ends up with nothing.
I get sometimes a little bit indignant with people a long, long way from the scene who see processes like the TRC that plunge deep into the psyche of the nation, ongoing, detailed, cumulative, a lot of genuine human emotion coming out in all sorts of ways, acknowledging the multi-layered character of truth, the diversity of opinions and experiences and ways of seeing the world and visions that make up the truth, who simply dismiss the whole thing as letting these scoundrels off the hook and they ought to be punished and they ought to be sent to jail. To me that's a very, not only not nuanced it's a decontextualised really abstract way of looking at the question of justice rather than being curious about and accompanying a rather extraordinary process that is turning up an enormous amount, that is reaching into people's hearts and souls in a way that your ordinary court rolls could never have done. It's that all or nothing approach, as I say, usually ends up with nothing, you end up with nothing at all.
POM From ordinary black and white people to whom I talk, and I have a large number of families whom I talk to on a regular basis, and what I have found, and we discussed this the last time a little, is that the whites by and large have tuned out. They say, wow we never knew these things were going on and if we did know we certainly would have condemned them and never condoned them, but we didn't know, all we knew is that we were fighting communists and that's what we were told and that's what we accepted so it's got nothing to do with me, and when there's an attempt made to make me part of a system that supposedly gave me privilege and whatever I resent it, I've worked for what I've got, I did it on my own. So there's a distancing from what's going on which might be natural but you can comment. On the other hand I am finding among black families who two or three years ago were quite benign about the whole issue of forgiveness and were prepared to forgive, being in a far less forgiving mood as they hear the very things you talked about come out, not so much the killings per se or even the torture per se but the culture in which it was carried out, the culture of braaing and having beers and sitting around and telling jokes while bodies were burning. This whole inhumanity of it is getting to them and they are saying where's the justice in it for us if they are all going to walk? Do you know what I mean?
AS I am sure both emotions are pretty widespread. The whites are far less capable of distancing themselves than they were two or three years ago. The detail, the depth of it, the cruelty and a certain kind of half conscious knowledge that these things were being said at the United Nations, they were in the press, they were brought out sometimes by defence counsel at trials and so on, so it wasn't like there was a total ignorance. The whites are far more defensive than they were and there's a very good lesson also for everybody, all of us, just don't be taken in by propaganda and that's a permanent lesson for the future so that people have just got to be much more attentive, much more alert to any official or if it's private power that's being expected, the legitimations and justifications of any powerful group in society.
Amongst the oppressed group, the victims and so on, I noticed from the beginning the families who had lost members tended to be far more distressed, far more demanding of punishment of individuals whom they would then possibly forgive afterwards than people who had themselves survived ill-treatment, the Robben Island prisoners and the others. I am sure there's an explanation for that. You can forgive something far more easily if you were the victim directly than to forgive on behalf of someone else who is now dead, where you just feel the loss and you haven't lived through the whole process of struggling against the violence and the pain on a day-to-day basis and emerging triumphant and feeling the importance of the power of forgiveness which is an enormously powerful emotion. It's a moral emotion where you are really in charge morally of the global situation, it's your values that count, that become the dominant values and it's not simply a kow-towing to anybody else or giving way to anybody else. It's actually very powerful, it's not weak. But it can be seen as something very weak and something very empty to those who lost a daughter or a son or a husband or a father and who aren't part of a whole process of struggle in the years afterwards except in a general sense as part of the oppressed community.
I would have considerable, something more than sympathy, feeling for that kind of emotion even although my own emotion is a very different one and I don't think we can force our emotions on anybody else. I'm not wrong because I believe that forgiveness is actually very powerful, very strong, very affirmative in appropriate circumstances provided the people want to be forgiven. If they don't want to be forgiven you can't unilaterally forgive someone. But I also understand the emotions of others who say we can't forgive until there has been some form of punishment, until they have felt some of the pain that they inflicted and then we will be merciful and I understand that and I respect it and it's just like truth is multi-layered and various, so even the reactions to the past abuses are very, very different and I don't think there's a single mode of behaviour that's an appropriate one. These are things that just come to you, it's your sense of history, your sense of self and they can't be and shouldn't be dictated to by anybody. There's no correct way.
POM How does reconciliation fit into this equation? Is reconciliation in a sense an individual act, it's between the perpetrator and the victim or the family of the victim? How is that translated into the larger reconciliation of black and white, of making whites, as it were, willing partners in the transformation process rather than, as often seems the case, begrudgers who are going along because they have no option but screaming bloody murder at every step of the way?
AS I'm not sure that there's going to be a vast amount of individual face to face reconciliation between families or victims and the perpetrators. It's just too raw, it's too harsh. The commonalities are not strong enough. There might be some individual cases. I could certainly do it if I met the person who planted the bomb. I could handle it I'm fairly sure emotionally. Not everybody could or would want to or would feel that genuine sense of things have moved on and we're living together in one country and we were enemies before and you tried to kill me. That's past now and look at this person you tried to kill. I believed in justice, democracy, fundamental human rights. You were wrong, we were right. I mightn't say it in exactly those terms but my sheer existence and maybe even my non-vindictiveness or anger in a way are proof of the very points that I'm making, it's not personal in that sense. I suspect not too many other people have the temperament, the philosophy, the background maybe that I have. Many of the Robben Islanders are like that, have been like that. They have shown it in all sorts of ways. Many other people particularly in townships who didn't have that close solidarity, didn't live at that very intense idealistic level and have the long view of history that many others of us have maybe couldn't manage that at all.
I see the reconciliation as coming out indirectly rather than directly. It's establishing common values, a common sense of what's right, what's wrong. It's establishing levels of accuracy in relation to the past, what happened and so on so at least there can be a broad agreement. So if you've got basic consensus on the values, you've got basic consensus on what happened and our history, basic acknowledgement of the pain and the need to do something about it, that is a very powerful foundation for national reconciliation because it means we're all living in the same country. We are different, we support different people, our tastes are different, our interests are different but we share this not just legal citizenship in the terms of the right to vote, important though that is, and a defensive Bill of Rights citizenship in that the state can only do certain things and for the rest shouldn't interfere. But it's also a form of what I might call moral citizenship, that there are certain things we share. They are important, they do count, the end doesn't justify the means. There are basic fundamental rights that all prisoners, even if they are seen as enemies of the state, are entitled to. There are certain ways that government can function, the police can function, the army can function that have to be subject to constitutional norms and respect for the rights of people and so there can be a general repudiation of covert operations, of the CCB, of hit squads, of that mode of functioning and authorisation, of the secrecy. There can be a general repudiation of this idea that the end justifies the means and when you're dealing with a ruthless enemy you don't need any standards yourself. And a general acceptance hopefully that in the long run you will be found out, that there isn't impunity from that point of view. I think all these factors help to establish the commonalities in society that lead to a form of reconciliation. It doesn't mean that the whites are going to enthusiastically embrace democracy and the new values of society and support transformation. It means that their moral resistance to a decent society, resistance is weakened, the openness to it is strengthened, that the new younger generation have a new vision of what is normal and what's acceptable and what's not compared to the older generation.
Some of the apartness of the past I think is eliminated by this whole process and for the rest we're dealing with a long intense awful history of hundreds of years and generations. We're not going to wipe out all the relics and the consequences through some enormously magical transformatory process. It's all bit by bit, bit by bit, beavering away, pointing in a more progressive direction, using the framework of the constitution, the new values, negotiating things, everybody talking to everybody else. I think that's the way to achieve it. Most of the whites will be sour. So be it. It's better that they're sour than they are picking up guns and fighting back and destroying everything.
POM OK. I'll leave it there. Thank you very much again. It's always a pleasure to talk to you. I'm sure everybody who talks to you says the same thing. I could spend a whole day with you. I wonder when you get the opportunity to do any work.