Reversing Accountability in South Africa: From Amnesty to Pardons and Non-Prosecutions
BY HUGO VAN DER MERWE
In 1995, the South African Truth and Reconciliation Commission (TRC) introduced a mechanism that offered a morally compromised form of accountability: amnesty in exchange for public disclosure of truth. While this was a bitter pill to swallow for the South African public and an unacceptable deal for many victims, it gained some legitimacy on the basis of the consultations that led to the process and the space created for victims to participate in the amnesty procedings. Since the closure of the TRC, the avenues for consultations and participation for both the public and individual victims have increasingly been closed down.
A BRIEF HISTORY OF AMNESTY, PROSECUTIONS AND PARDONS IN SOUTH AFRICA
The amnesty process that formed part of the South African constitutional negotiations and then became an integral part of the TRC is a widely debated topic and has been credited for making the transition to democracy possible and for providing some of the truth that the TRC obtained about atrocities during the apartheid era.
Amnesty was indeed the final issue that threatened to deadlock the negotiations in 1993 between the government, liberation forces and other parties. The outgoing regime would not accede to democratic elections unless the assurance of some form of amnesty was provided in the interim constitution signed in December 1993. The mechanisms for the implementation of amnesty were then spelled out in the National Unity and Reconciliation Act of 1995.
The South African model of accountability through conditional amnesty required perpetrators to apply for amnesty in relation to each of their offences, provide full disclosure, and prove that it was politically motivated. Many amnesty applicants had already been convicted through the courts and were in jail when they applied for amnesty. Many others were however still free, having not yet been convicted or even indicted. Inherent in this amnesty for truth deal, there was a threat of prosecutions for those who did not apply for amnesty. The only serious incentive to participate in the amnesty process for those who had not been convicted was the threat of prosecution.
Despite denying justice to victims of severe abuses (including torture of political opponents and killing of civilians), the amnesty deal was one that was generally accepted by survivors1 and society more broadly.2 In part this can be ascribed to the fact that the TRC legislation was subjected to very intensive public discussions, conference debates, community workshops, and lengthy parliamentary debates in committees and in public forums. The painful reality of exchanging amnesty for democracy and justice for truth was accepted as morally problematic, but a necessary compromise and pragmatic solution under the circumstances.
While survivors only had a limited voice in the policy development process—mainly because of their lack of an organised voice at the time—there was significant lobbying on their behalf by human rights, religious and psycho-social NGOs. Their interests were thus an influential factor in the development of the legislation.
While the amnesty provision in the interim constitution was the result of an elite pact (and presented as non-negotiable), the specific provisions spelled out for its implementation was opened up for debate. Ultimately there was a fairly broad consensus of the final legislation.
The TRC, survivors and society more broadly legitimately expected that those who did not apply for amnesty would be pursued through the regular prosecutorial system. In addition, the TRC denied many amnesty applications on the basis that the applicants did not provide full disclosure or where unable to prove (on a balance of probability) that their actions were politically motivated. Indeed, the TRC handed over files of 300 cases to the public prosecutor for further investigation and possible prosecution. In these cases, the perpetrators either did not apply for amnesty, or amnesty was refused. The TRC recommended in its final report that such prosecutions be pursued.
Since then there have only been four cases prosecuted, involving eight perpetrators. No explanation has been forthcoming regarding the 300 cases and the process for reviewing the feasibility of prosecutions in these or other cases.
Understandably, prosecutions of human rights abuses that happened over 14 years ago is a very challenging task. The availability of sufficient evidence, the cost of prosecuting senior leaders in charge of command responsibility, and the capacity of the South African legal system are all factors that limit the extent of such an undertaking. Only pursuing four cases however points to political considerations influencing the prosecutorial process.
Survivors and human rights organizations have taken the initiative to investigate and document a number of cases in which the state has failed to follow up on evidence at its disposal. Other government initiatives to deal with perpetrators further undermine the commitment to account for human rights abuses.
In March 2003 the National Prosecutorial Authority (NPA) established a Priority Crimes Litigation Unit which was to oversee its processing of TRC related cases alongside the prosecution of other high level crimes such crimes under the Rome Statute and terrorism. In December 2007, the NPA announced a new prosecutions policy which had been subjected to cabinet debate and approval.3 This policy spelled out special procedures for how apartheid era cases were to be treated. Instead of clarifying criteria for prioritizing certain cases— (e.g. of those most responsible—), the policy in fact spells out conditions and procedures for a second amnesty under the guise of prosecutorial discretion. The policy provides discretion for the NPA to grant offenders immunity from prosecution if they meet particular conditions. These conditions include the TRC’s amnesty criteria (full disclosure and political motive,) but also more questionable considerations about whether the alleged offender is remorseful or agrees to renounce violence.
While survivors and their families were to be given an opportunity to comment on cases, they would not have an opportunity to challenge the perpetrator’s version of events. Furthermore the information gathered by the perpetrator would not be released to the public and there would be no judicial review of such decisions on immunity. Survivors and human rights organizations challenged the policy in the High Court, and in December 2008, the court ruled that the policy amounted to a rerun of the amnesty process and infringed on survivors’ rights, was therefore unconstitutional. The case is presently on appeal.
While the survivors might have won the fight to prevent official amnesties, a much more difficult challenge remains. How do they pressure the government to prosecute more than just a few symbolic cases? Forcing the state to develop and implement an appropriate prosecutions policy, which commits sufficient resources and targets appropriate cases, is a much more complicated task.
Alongside this lack of prosecutions and further immunity for those who have not been tried, the state has also proceeded to grant pardons for perpetrators who were denied amnesty and has put in place procedures to extend further pardons. In December 2007, President Mbeki initiated a new presidential pardon process. The President created a “Reference Group,” consisting of representatives of the 15 national political parties, to assess applications for pardon. This specific pardon process assessed applications from those already convicted of criminal offences who wished to be released from prison and/or have their criminal records expunged. The process only catered to those who did not apply for amnesty to the TRC. It only heard the perpetrator’s version of events, and did not even require full disclosure. Survivors were completely excluded from the process, neither being able to challenge the version presented by perpetrators or being able to provide input on how their release might impact on them.4
The reference group concluded its work and presented its recommendations to the president at the end of January 2009. Again survivors and human rights organisations threatened to challenge the process in court, and again the judge ruled against the state finding that victims have a prima facia right to participation in the pardon process, and issued an urgent interim order preventing the president from granting pardons. The matter is presently with the Constitutional Court after one of the pardon applicants appealed against the interim order.
PROSECUTIONS AND ACCOUNTABILITY: SURVIVORS’ PERCEPTIONS OF A LEGITIMATE PROCESS
Survivors of apartheid era abuses in South Africa want justice. A large portion of those want prosecutions.5 Most of those who don’t see prosecution as the best form of justice still want some form of accountability from the perpetrators. They want the facts and an explanation for why these crimes happened.6
For survivors, though the TRC was not considered an ideal vehicle, its efforts to deliver on its promises lent it credibility. Survivors understood it as an institution inherently limited by finite resources, an extensive mandate and short time frame. The TRC also withstood sharp accusations of bias by political opponents. Yet, the basic premise and ethic of the Commission received broad social support.
As the South African case has shown, survivors may be willing to accept certain compromises—that prosecutions are feasible only in a small number of cases, or that plea bargaining may be the best way of attaining some level of justice and accountability. They may even be willing to accept pardons for those who did not apply for amnesty. But the neglect of procedural justice concerns and the virtual exclusion of survivors from that process has robbed the current prosecution and pardon process of any legitimacy. Compromising the survivors’ rights to justice to appease political pressure is not acceptable in a society that has achieved relative stability and which claims to operate under the rule of law.
In South Africa, justice remains a negotiated space. The politically driven compromises of the initial TRC conditional amnesty deal have been followed by further compromises that have curtailed the justice process. The shift from negotiations that involve all stakeholders to one in which only political parties are stakeholders, negotiators and final arbitrators deeply undermines survivors’ and citizens’ faith in the new justice system.
Hugo van der Merwe is Transitional Justice Programme Manager at the Centre for the Study of Violence and Reconciliation in South Africa.
ENDNOTES
- Backer, David (2003) “The Human Face of Justice: Victims Responses to South Africa’s TRC Process,.” PhD Dissertation, University of Michigan, Ann Arbor. [↩]
- Gibson, James (2002) “Truth, Justice and Reconciliation: Judging the Fairness of Amnesty in South Africa,” American Journal of Political Science, 46(3): 540-56. [↩]
- Prosecuting Policy and Directives Relating to the Prosecution of Offenses Emanating From Conflicts of the Past and Which Were Committed On or Before 11 May 1994, Appendix A of the Prosecuting Policy of South Africa. [↩]
- This right to participation is in fact given to victims in parole hearings in South Africa. [↩]
- Hugo van der Merwe, ‘What survivors say about justice: An analysis of the TRC Victim Hearings,” in Truth and Reconciliation in South Africa: Did the TRC Deliver? Eds. Audrey Chapman and Hugo van der Merwe (2008). Pennsylvania University Press. [↩]
- Timothy Sizwe Phakathi and Hugo van der Merwe, ‘The Impact of the TRC’s Amnesty Process on Survivors of Human Rights Violation’ in Truth and Reconciliation in South Africa: Did the TRC Deliver? Eds. Audrey Chapman and Hugo van der Merwe (2008). Pennsylvania University Press. [↩]
