Serjeant AT THE BAR
The Truth and Reconciliation Commission should not be treated like a court of law
THE Truth and Reconciliation Commission kicked off, this week, in an appropriately dramatic and South African fashion — with threats of litigation and bombs at the first hearing.
There will probably be plenty of both over the next two years, but the former represents the more fundamental danger (there being not much one can do about the bombs).
The commission’s difficulty is that, while it will deal with matters of the utmost gravity, and of supreme importance to many individuals on both sides of the liberation struggle, it is not a court of law and does not have the power, entirely, to regulate its own proceedings.
While inquiring into the human rights abuses of the past, the commission will obviously make findings against members of the old security forces that will have the most severe consequences for their personal, social and business lives. Who in 1996, for example, would wish to be seen employing, or even having lunch with a man who tortured 13-year- olds 10 years ago?
So when victims (or their relatives) implicate a security policeman and an army officer in the torture or murder of detainees — neither uncommon in the 1980s — that policeman or soldier has the right to challenge the evidence and say, in effect, “I am innocent”. And if he has this right, he must have the right to legal representation to help him say it, which is where the problem begins.
The appearance of his lawyers will almost invariably lead, first of all, to a frustrating postponement of the proceedings, and then to a lengthy request for further particulars. Witness statements may also be required. Then would follow the thoroughly unedifying spectacle of a long, probing and probably ruthless cross-examination of someone like the hapless Nohle Mohapi, the first witness to testify at the commission (so far, she has been interrupted only by a bomb threat). If a half-way decent cross-examiner was unable to shake her testimony, relating to events two decades ago, it would be most surprising.
Would this serve the purposes of either truth or reconciliation? It is improbable.
The commission may very well be unable to prevent any of this. In law it has a status not unlike an inquest or a statutory commission of inquiry, and it is now pretty much settled that anyone interested in the findings of such a body is entitled to intervene through lawyers. He or she is also entitled to approach the supreme court to correct any injustice or unfairness.
A good example of this was when the family of George De’Ath, a newsman killed in the 1980s, many suspected, by black vigilantes acting at least with the tacit consent of the security police, sought to uncover the truth behind his death. They thought the magistrate who had conducted the inquest had displayed something less than a fearless commitment to justice in truncating the inquiry and refusing to hear certain evidence. The Appellate Division agreed and ordered the magistrate to reopen the inquest and hear the evidence.
This highlights the commission’s dilemma. It would like to be fair to everyone. But is this possible?
Probably not, and one hopes that the commission will resist this temptation. Its very existence represents a huge compromise at the expense of victims. Because of it, they will never see their persecutors tried, convicted, jailed or executed for their crimes; neither will the commission’s compensation ever match the civil measure of damages.
Simply by submitting to the commission, therefore, victims like Mohapi compromise their common law rights enormously; to top their pain and magnanimity with the indignities of trial procedure in what is not a trial would try the forbearance of even a saint, and it ought not to be allowed.
And if that results in some reputations tarnished unfairly, then it must be seen in the political context of the relatively small price that the old order has paid for a peaceful transition, and not in the more narrow context of legal principle.
This is an occasional column on legal issues. Members of the legal profession are invited to submit contributions