South Africa's Truth and Reconciliation Commission

With the dramatic changes in Southern Africa between 1990 and 1994—the freeing of Nelson Mandela, the independence of Namibia, the transition away from apartheid to democracy, and the elections of a SWAPO-majority government in Namibia and an African National Congress (ANC)-majority in government in South Africa—the type of partisan justice represented by the SWAPO trial ended.

Does history reveal another instance of what South Africa is attempting within the law? Has any other society so stayed the heavy fist of revenge? Can a fallen totalitarian regime be transformed by the rule of law without a vicious cycle of demands for getting even? Can a society not merely forgive but reconcile? Can a society both forgive and reconcile while, at the same time, keeping its past alive? Can truth be faced without endangering peace? Is justice possible without inflaming the call for unequal treatment in order to right the balance?

South Africa seeks to avoid both ends of the spectrum stretching from the all-too-human urge for revenge, where all past injustices are recalled, to literal amnesty, where the past is suppressed. Revolutionary justice represents one end of the spectrum. The French Revolutionary Tribunal established the pattern of revolutionary justice during the reign of terror, but events during other regimes, most notably the Moscow Trials (1936–38) under Stalin, the Nazi People’s Court (1934–45), and the many East European trials (1949–52), perfected it. Justice became revolutionary expediency. Show trials became the forum of public vengeance.

Guatemala is an example of the opposite end of the revenge/amnesty spectrum. In Guatemala the past is officially forgotten. Following a generation of civil war, Guatemala established a sweeping amnesty with its law of National Reconciliation.

South Africa’s aim is as different from Guatemala’s as it is from the French Revolutionary Tribunal’s. The Truth and Reconciliation Commission in South Africa set out the following goals: (1) to return to victims their civil and human rights; (2) to restore the moral order; (3) to record the truth; (4) to grant amnesty and indemnity to those who qualify; (5) to create a culture for human rights and respect for the rule of law; (6) to prevent the shameful past from happening again.⁵⁸ As South Africa’s Minister of Justice Dallah Omar outlined the framework of the Truth and Reconciliation Commission in July 1994, the eight to ten members would work under three committees: (a) Committee on Amnesty/Indemnity, which would consider applications for amnesty or indemnity for political offenses by either state security forces or liberation movements on the condition of full disclosure; (b) Committee on Human Rights Violations, which would gather information and hear the stories from victims of gross human rights violations between March 1960 (the Sharpeville massacre) and December 1993; (c) Committee on Reparation and Rehabilitation, which would make recommendations for claims by victims.⁵⁹ The crimes the Commission deals with must be political, not ordinary. This forces the members of the Commission to make the difficult judgment about what is political and what is not.

After the legislation establishing the Truth and Reconciliation Commission passed the Parliament and was signed by President Nelson Mandela in August 1995, Nobel Peace Prize winner Archbishop Desmond Tutu was appointed its chair.⁶⁰ Possessing the power to subpoena witnesses and documents, the Commission holds considerable authority to investigate, although it exercises no judicial function.

Over the several years of its work the Commission has made some breakthroughs. The leaders of both the Nationalist Party and the African National Congress (ANC) have issued apologies. Former president Frederick DeKlerk apologized for the “pain and suffering” caused by apartheid, but he maintained that neither he nor the National Party authorized assassination or torture.⁶¹ Thabo Mbeki, in expressing regret for ANC excesses and civilian deaths, turned over some 420 pages of documents to the Commission detailing the mistreatment in ANC training camps as well as the use of bombs and land mines, but he denied that the ANC sanctioned the practice of “necklacing,” in which a victim was burned alive by the use of a gasoline filled tire thrown around the neck.⁶²

A major revelation for all South Africa came in January 1997 when the Commission heard four policemen seeking amnesty and confessing to having killed Steve Biko in September 1977. A retired police colonel, Gideon Nieuwould, had already been convicted in a 1989 car-bomb killing of witnesses, including a fellow police officer, in another case, the Cradock Four. Biko, a founder and leader of the Black Consciousness Movement, was picked up by police, thrown into a police van, beaten until he was unconscious and nearly comatose during a 700-mile trip from Port Elizabeth to Pretoria, and left to die. The inquest concluded that Biko died of head trauma “probably” sustained in a “scuffle” with the police in Port Elizabeth. No one was charged.⁶³

In the Cradock Four case, heard by the Commission in April 1996, a school teacher, Matthew Goniwe, had in the 1980s organized township residents to oppose rising rents. He was fired, but his students organized a fifteen-month boycott which spread throughout the Eastern Cape Province. On June 17, 1985, Goniwe and three others were tortured and murdered on the way to a meeting.

The work of the Commission has been able to either prod or entice top apartheid officials to break their wall of silence and reveal the inner workings of the councils of violence. Former South African Police Commissioner General Johan von der Merwe admitted to the Commission that he had ordered acts of terror and had done it with the approval of Cabinet-level officials. In 1988, as one example, he gave the order to bomb the headquarters of the South African Council of Churches on instructions from Adriaan Volk, the minister of law and order.⁶⁵

Two cases demonstrate the moral dilemmas faced not only by the Commission but by families and, finally, by the entire society. In 1993 a 26-year-old American Fulbright scholar, Amy Biehl, was attacked and killed by Vusumzi Ntamo, Ntobeko Peni, Mzkhona Nofemela, and Mongezi Manquia, all between 24 and 26. The four belonged to the Pan African Congress (PAC) and were returning from a PAC rally where the slogan “one settler, one bullet” had been chanted. When Peni saw Biehl he asked one of his companions for a knife. “For me this an opportunity to put into practice the slogan of �?one settler, one bullet.’” The four were convicted and given 18-year sentences, but, because their crime was politically motivated, they were allowed to seek amnesty. Biehl’s parents, who had traveled from California to attend the Commission session, did not oppose the amnesty.⁶⁶

A month after the Biehl case the Commission heard the Chris Hani case. Hani, a popular ANC leader who headed its armed wing, Umkhonto we Sizwe, had been murdered in 1993 by Clive Derby-Lewis, one of the founders of the Conservative Party, and a Polish immigrant, Janusz Walus. Both had been convicted in the courts and were seeking amnesty because the Hani murder had been politically motivated.

Beyond the difficulty of responses to the Biehl and Hani cases lies a deeper dilemma in South Africa. Overshadowing the issues the Commission faces is the long-standing hostility between the ANC and the Zulu-based Inkatha, a conflict that reflects the ANC commitment to create a non-racial South Africa, leaving the traditional tribal ties behind, and the Inkatha determination to build Zulu identity and nationalism with traditional links. The conflict may be intractable. In the final years of apartheid the ANC and its offspring, the United Democratic Front (UDF), fought violent battles. The Inkatha “warlords” were set against the UDF “comrades,” the Zulu impis with its mass of spear-and-club carrying warriors against the necklacing terror. In a four-year period some 14,000 people were killed in these battles.⁶⁸ The Commission has not touched this vast potential for resentment and violent reaction. Stephen Taylor observes that “there are plenty who believe that a war to the death between Inkatha and the ANC will resume sooner or later in Natal/KwaZulu.”⁶⁹ If it does, will South Africa be able to maintain the rule of law?