Documents on South Africa

“We serve with pride” is written on the gate to the former high-security prison on Robben Island. The records from South Africa’s most famous detention center are now held in the Mayibuye archives. But the most comprehensive documentation of human rights violations on the Horn of Africa is still the seven-volume final report of the Truth and Reconciliation Commission. In 1995, the parliament passed a special law for the commission’s work.

It is the key document on transitional justice in South Africa: Law No. 34, “The Promotion of Nation Unity and Reconciliation Act.” The name alone makes clear that it was not aimed at settling legal scores with the perpetrators of human rights violations during the apartheid era. Rather, the law was passed because “the Constitution of the Republic of South Africa of 1993 provides a historic bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence for all South Africans, irrespective of color, race, class, belief or sex.”

The international world was watching closely to see how this bridge would be created. The South African Reconciliation Act attempted to square the circle: on the one hand, it would investigate the crimes of the past, providing the victims with a sense of gratification. On the other hand, it would avoid inflicting new wounds or deepening old ones. The law offered the perpetrators a barter deal: According to section 2 (1), they would be granted amnesty if they “make full disclosure of all the relevant facts relating to acts associated with a political objective.” This provision applied to all politically motivated human rights violations committed between 1960 and 1994.

The Truth and Reconciliation Commission appointed by President Nelson Mandela in late 1995 was the central instrument for achieving this. Its aim was to investigate the crimes, grant amnesty to perpetrators who confessed and make proposals for victim compensation. It formed subcommittees to address each of the three tasks. In its investigations, the commission had quasi prosecutorial powers. The views of both the victims and the perpetrators were to be clarified in public hearings. The law was thus based on the Satyagraha doctrine developed by Mahatma Gandhi in South Africa that promotes the idea that it is more effective to appeal to the heart and conscience of the opponent than to fight him violently.

This approach remained controversial among victims and their relatives. The practical implementation also proved difficult. For one, many of those responsible did not disclose their deeds or they did not disclose them fully. Instead, most of the 7,112 applications for amnesty came from perpetrators from the liberation movement who had already been convicted or from officials who had reason to fear being brought to trial on the basis of overwhelming evidence. The majority of capital criminals, confident that they would not be discovered or prosecuted, did not bother to apply for amnesty.

The manner in which those who did confess were dealt with was often unsatisfactory. Public hearings were held to address 1,626 amnesty applications because victims made an appeal. More than 1,000 applicants, mostly members of the liberation forces, were nevertheless granted amnesty. This basically meant that after a murder had been described in detail, the murderer not only went unpunished, but also could no longer be prosecuted under civil law.

Even when an amnesty application was rejected by the commission, the perpetrators usually went unpunished. When the hearings finally ended in 2002, the commission handed over about 400 investigation files to the public prosecutor’s office. But generally, prosecutions did not take place. Experts attribute the extremely low number of convictions to the influence exerted by the ANC government. The ANC was concerned that proceedings might lead an investigation of its own representatives.

Click here for the Law on the Promotion of National Unity and Reconciliation.