Almost 16 months ago the amnesty committee was wrapping up its hearings after five-and-a-half years of difficult and often painful work. In the public debate that accompanied this long-awaited moment, limited details of secret discussions between former South African Defence Force (SADF) generals and a number of different political parties appeared, and then as quickly slipped from view.
In February 1999 Thabo Mbeki told Parliament that consideration would have to be given to special amnesties in the wake of the Truth and Reconciliation Commission (TRC), and specific mention was made of the military as well as KwaZulu-Natal.
Over the past few months we have seen the issue slip in and out of public view, as a result of unsubtle attempts from a range of political parties to secure amnesties through presidential pardons. In May former SADF chief General Jannie Geldenhuys issued a statement claiming proposals for an “extended amnesty” were submitted to the government several months ago by a “forum” consisting of four retired SADF generals and an undisclosed number of “senior African National Congress leaders”.
The former SADF chiefs seem intent on securing the general amnesty promised by the late Joe Modise during bilateral negotiations between the SADF and Umkhonto weSizwe in 1993.
Despite the 7 000-plus amnesty applications received by the TRC, the vast bulk of apartheid-era perpetrators did not subject themselves to the amnesty “deal”. It was no secret that some form of amnesty would be under consideration following the TRC process. What remained unclear was how this process would unfold, and what this would mean for further truth recovery and prosecution initiatives.
The unfinished business of the TRC revolves directly around the issue of further amnesties and, in particular, the need and opportunity to establish more truths about past abuses. This is certainly not the exclusive business of the “forum”. Former SADF leaders’ contempt for the TRC, which they accused of political bias, is on record. Their promotion of further amnesties is evidently self-serving, and attempts to portray these moves as some sort of recipe for national reconciliation are disingenuous.
In recent weeks confessions by a former Civil Cooperation Bureau agent have resulted in arrests of several former SADF members for their involvement in the assassination of ANC-aligned youth in Limpopo during the mid-1980s. Former members of the 32 Battalion have told government officials about their involvement in the violence that severely jeopardised the negotiations during the early 1990s. It is widely believed that the military is hiding its involvement in many more incidents of abuse.
It remains to be seen what resolve the government has to push through proposals that might detract from the spirit of the existing amnesty criteria established by the truth commission. Despite its flaws, the TRC sought to, and achieved, the most transparent amnesty process ever seen internationally.
It pioneered a twin-track strategy, which, although in need of many refinements, allows for an amnesty process to accompany and receive support from the threat of prosecution. Investigations that prompted most security force amnesty applications were in many cases just beginning to unravel the web of abuses committed, and pressure could potentially have been exerted on hundreds more operatives to apply for amnesty.
To return to limited disclosures, as in the case of the early 1990s indemnities, or a general amnesty, would constitute a step in the opposite direction in terms of building accountability and legitimacy in the criminal justice system, and the broader objectives of institutional transformation. So too, would any attempts to secure amnesties through manipulations of the presidential pardons process.
Human rights organisations are likely to vigorously oppose any such moves, and will seek to establish the constitutionality of any such developments.
The Geldenhuys “forum” remains shrouded in mystery. We do not know what weight the “forum’s” recommendations will carry, and it remains to be seen if details will be made available for public debate and input. The government knows that to undertake a further amnesty process requiring disclosures, even in an in-camera process, is an expensive and resource-consuming option. A general administrative amnesty not only ties up a range of outstanding legal liabilities, it is also cost effective. This fiscal temptation, however, must be considered in the context of a range of broader obligations. If there is to be a further amnesty, it must address a panoply of needs, not just those who hope to benefit directly from it.
While amnesty in any form remains a distasteful option, for many it may be the only opportunity to secure vital information about past abuses. For human rights activists and many victims and survivors, the TRC really was only another step in the process of trying to find out the truth. Of those who engaged with it, only a handful received any sort of detailed feedback from the commission relating to their submissions. It is therefore important to recognise that much more can be achieved. A general amnesty by whatever name would provide no tangible benefit to victims and survivors at all.
Considerable weight was given to the notion that an agreement on amnesty was a prerequisite for a peaceful transfer of power during the negotiated settlement. Even the Constitutional Court, arguing in favour of the constitutionality of amnesty provisions, pointed out that, “but for a mechanism providing for amnesty, the ‘historic bridge’ itself might never have been erected”.
But, there never was any detailed agreement on amnesty. This is why one of the first moves by Nelson Mandela’s cabinet in 1994 was to overturn attempts by the De Klerk government in its last days to indemnify over 4 500 security officials, mainly from the police. This is why the ANC majority in Parliament was able to ensure that a transparent conditional amnesty process was placed on the statute books, even though it required participation from all sides of the conflict. The absence of a general amnesty did not bring about the right-wing/security force backlash that had been suggested. What then would be the purpose of such a general amnesty now? Is there any suggestion that this threat remains? Would conflict in KwaZulu-Natal re-ignite without the proposed amnesty?
There are many questions that will have to be answered around these developments if the government is really committed to building a culture of accountability. Political brinkmanship on this issue requires the government to stand firm and demonstrate its commitment to basic rights and values. There is, however, a very real concern that we are witnessing the beginnings of a significant reversal in the gains that have thus far been achieved. This need not be the case, and the government now has an opportunity to demonstrate principled leadership on this issue. Anything else is a betrayal of the fundamental values underpinning our Constitution.
Piers Pigou is a senior researcher at the Centre for the Study of Violence and Reconciliation