I was in my chambers some years ago when I received a message from reception that somebody calling himself Henry had arrived to see me. Henry had telephoned a few days earlier to say that he was going to testify to the Truth and Reconciliation Commission. It was about the bomb he had arranged to explode in my car which caused me and the loss of my right arm. Naturally I was keen to see the person who had the courage, or the foolhardiness or just the interest, to want to see me. I opened the door with my security pass and a slender, youngish man came forward. I stared at him: so this is the man who tried to kill me? He stared at me: so this is the man I tried to kill?
We spoke for about two hours. He had been willing to invest his energies, his intelligence, maybe even his life, for his country, for apartheid. And now he had been cast aside. He too had injuries, he told me, he had been shot in the leg and walked with a slight limp. He seemed petulant: I was a judge and he was unemployed. We could have gone on eyeing each other and talking forever.
I stood up and said: « … normally if someone comes to my office, when I say goodbye I shake that person’s hand, but I can’t shake your hand. Go to the Truth Commission, tell your story, help the country, do something for South Africa and then perhaps we can meet again. » When he walked back to the security door he was without the upright soldier’s posture he had had before, and looked uncomfortable, uneasy and sad. He went through the door, I said farewell, and he disappeared.
Something like thirty Truth Commissions have been created in various parts of the world, yet none have had the impact of the South African one–not for better, not for worse. None have been so profoundly influential in the countries where they functioned, none have attracted so much international attention. What has been so special in South Africa, and what lessons does our have for Africa?
The first point to note is that the TRC was not the brainchild of a group of wise people sitting around a table and concluding that in order to deal with the injustices of the past the country should set up a Truth Commission. The pressure for the Commission in fact emerged from very intense and specific internal South African needs.
The story starts with a meeting of the National Executive Committee of the African National Congress in August 1993, about eight months before the first democratic elections were due to be held. It was a passionate meeting, sharp, uncomfortable. The issue was how to respond to a report of a commission of inquiry set up by the ANC to investigate violations of human rights committed by ANC cadres in Angolan camps during the liberation struggle. The report stated that ANC security had captured a number of persons suspected of having been sent by Pretoria to assassinate the leadership and generally create havoc; while interrogating them–this was in the early 1980s the guards and security officials had frequently behaved in a grossly inhumane way.
The report was emphatic: certain people should be called to account by the ANC. The 80-member National Executive Committee was now discussing what to do.
Some people said forcefully: we set up the Commission, it has reported, we have to follow through. Others responded with equal vehemence: how can we do that, we were fighting a freedom struggle in terribly difficult conditions in the bush in Angola, the enemy was ruthless and, we had young people quite untrained in interrogation techniques, they did their best, they protected the leadership, how can we punish them now?
The reply then came: we are a freedom movement, we were fighting for justice, if justice does not exist inside our own ranks, if we do not hold fast to these values, if we simply use the techniques of the enemy, we are no better than they are. Our people have accepted great suffering because they believe in our cause, you cannot fight for life and be the enemy of life at the same time.
Profound moral issues were at stake, not the sort of matters that could be decided by a simple show of hands. Eventually somebody stood up and asked the simple question: what would my mother say? The figure of « my mother » represented an ordinary, decent, working-class African woman, not sophisticated in politics but with a good heart and an honest understanding of people and the world, a person whose hard life experiences had promoted a natural sense of honour and integrity. He then answered himself: my mother would say there is something crazy about the ANC. Here we are examining our own weaknesses and faults and exposing our nakedness to the whole world. But in the meantime all those villains on the other side who have been doing these things and worse for decades and centuries, murdering, mutilating and torturing our people, are getting away scot-free. Are we so perverse and introspective, so obsessed with our own moral health that we do not even think about the pain and the damage that was caused by the other side, by people who are now getting away completely without taking responsibility for anything. What kind of freedom movement are we when we are so insensitive to the pain of millions of ordinary people? Where is the balance? Where is the justice?
It was at that moment that Professor Kader Asmal, later to become Minister of Education, stood up and said: what we need in South Africa is a Truth Commission. Only a Truth Commission, he said, can look at all the violations of human rights on all sides. Human rights are human rights, they belong to human beings, whoever they might be. Any torture or other violation has to be investigated on an even-handed basis, across the board, not just by one political movement looking at itself, but at a national level, with national resources and a national perspective.
He was clearly right. That was the moment when a political decision was taken that if an ANC government came to power after the elections, and it was assumed that it would, a Truth Commission would be set up that would examine all abuses of human rights from whatever quarter in the last years of apartheid.
A further crucial ingredient also emerged from the bowels of South African experience. The negotiators had signed the draft text of a new, non-racial democratic Constitution. We had worked out a two-stage process of constitution-making, involving an elected Constitutional Assembly drafting a final Constitution. We thought that all that remained was to hold the elections. Then, at the last minute, we heard that the security forces had said to the ANC leadership that they had been promised an amnesty by President De Klerk, but there was no amnesty in the Constitution. They stated that they had loyally protected the negotiations process, and were fully prepared to safeguard the elections against a bombing campaign they had got wind of. But if they were going to jail afterwards for their actions in support of the previous government, they would simply resign from their positions.
This created a problem for the ANC leadership. The promise of amnesty had been given by President De Klerk, not by themselves. At the same time, they acknowledged that the security forces had loyally protected the negotiation process against many assaults from various right-wing sources. They were also aware that ANC security was not in a position itself to defend the election process, they just did not know who the bombers were. We had dreamed for years of holding elections on the basis of one person one vote, of entering a new constitutional order where everyone would be equal, where the crimes of the past could not be repeated. If the elections were severely disrupted, the dream would be destroyed and racial violence would tear the country apart. At the same time to grant the security forces blanket amnesty because of their support for the constitutional process would negate the principle of institutional and personal accountability. It was at this stage that I suggested the possibility of granting an amnesty to the security forces, but not a blanket or general one. The right to amnesty would be based on each individual coming forward and acknowledging what he or she had done, and then getting indemnity to that extent.
In this way the Truth Commission and the amnesty process were linked. It meant that the perpetrators of violations of human rights, the torturers, the killers, had a motive to come forward and reveal what they had done. In exchange, the country would learn the truth. Bodies would be recovered. It was not through show trials, bribery, or torture that they would confess; it was not through using the methods of the old regime keeping people in solitary confinement, making them stand for days on end, electric shock torture, getting compliant, emotionally-destroyed witnesses to testify. It was through voluntary confession, induced by the guarantee of amnesty.
Three elements turned out to be necessary for the process to work well. First, it was important that the Truth and Reconciliation Commission function within a sound legal framework in a clear constitutional setting. Thus, the Constitution itself provided for a right to an amnesty for offences committed in the course of the political conflicts of the past, but stated that the right could only be enjoyed under terms and conditions to be established by the new Parliament. The new Parliament then went on to provide that a Truth Commission would be the mechanism for determining how amnesty could be granted on a case by case basis.
Secondly, although the drive for the TRC might have come primarily from the new Government, the details could not be unilaterally imposed. Some measure of consensus, however incomplete and reluctant, had to be achieved. A year was spent on the enabling legislation. It was a strenuous period of consultation and debate, of trying to bring in all the different interested parties and civil society with a view to securing the best mechanisms, balance and confidence in the process.
Thirdly, it was vital to staff the TRC with individuals of calibre, of standing, of manifest integrity, who had not themselves been directly involved in the conflicts of the past. This did not mean finding « neutrals ». Anybody who claimed to have been neutral in the face of overt racism or torture would not have been the right person, nor a person. What was needed was not neutrality, but impartiality. This required persons who were passionate about justice and human rights, but impartial in terms of evaluating the roles and functions that any particular persons, groups, parties, or formations had played in supporting or undermining respect for human dignity. These persons would look at what had happened in the ANC camps with the same degree of objectivity and impartiality that they would use in examining the massive violations committed over long periods of time by the security forces of apartheid.
In Archbishop Desmond Tutu, chairperson of the TRC, an outstanding individual with exactly these qualities was found. After a complex screening process which covered individuals from a wide range of social, cultural and religious backgrounds, other personalities of manifest capacity and calibre were selected.
The idea was not to investigate apartheid, which as a system had been condemned by humanity and totally repudiated by the new Constitution. The objective was to examine the crimes that had been committed and hidden during the apartheid period, mainly those committed in defence of apartheid, but also violations of human rights perpetrated in the struggle against apartheid. Our TRC was accordingly home-grown, across the board and unafraid. It had a clear constitutional and legal mandate, conducted its hearings in public, worked closely with the media, and was headed by outstanding individuals of manifest moral integrity. The foundations for a successful process were laid.
At the height of the TRC proceedings, I was at an end-of-year party in Johannesburg, feeling quite light-headed after a heavy year’s work in Court. In the midst of the music and hilarity I heard a voice saying to me « hello Albie ». I turned around and saw a familiar face smiling at me, looking very happy. The person spoke again, « hello Albie, I am Henry » And I remembered. « You came to my office, you were going to the TRC. »
The music was throbbing, the people were dancing around. We got into a corner so that we could hear each other better. He was beaming. I asked him what had happened. He told me that he had written to the TRC, giving them all the information he could, and had applied for amnesty in relation to six different matters. And afterwards, he said, he had spent hours with Sue and Bobby and Farook, answering the questions they asked on behalf of the TRC. He was speaking on first-name terms about persons I knew well, all freedom fighters who had been in Mozambique, and saying their names with great affection and enthusiasm.
Then he stopped talking, looked at me and said, « You told me that afterwards … maybe … ». And I responded, « Yes, Henry, I said to you that afterwards if you co-operated with the Truth Commission, if you did something for South Africa, maybe we could meet again. I’ve only got your word for it, but I can see from your face you are telling the truth. »
I put out my hand and I shook his hand. He went away elated. I moved away and almost fainted into the arms of a friend of mine.
Albie Sachs, Justice of the Constitutional Court of South Africa.///Article N° : 5741