SAR, Vol 10, No 4, May 1995
AMNESTY NOT AMNESIA:
DEALING WITH THE PAST IN SOUTH AFRICA
BY COLIN LEYS
Alex Boraine, Janet Levy, Ronel Sheffer (eds.) Dealing with the past: Truth and Reconciliation in South Africa, IDASA, Capetown, 1994, 175 pages (R49.96).
Dealing With The Past: Truth and Reconciliation in South Africa is a collection of presentations, by South Africans and others with relevant experience from aroutnd the world, to a recent conference held in that country in December 1993. The topic? How newly democratic regimes can best deal with those responsible for crimes of state and gross abuses of power committed during the period of the previous regime. The book is reviewed here by noted Canadian Africanist Colin Leys whose own most recent book, co-authored with John S. Saul, is Namibia's Liberation Struggle: The Two-Edged Sword and deals with, among other things, related themes regarding the Namibian experience.
The Truth Commission Bill, offically known as the National Unity and Reconciliation Bill, may well be the most important piece of legislation to be dealt with by the South African Parliament this year, and it is already one of the most contentious and delicate.
The Bill addresses the last-minute 'post-script' added to the transition constitution's Chapter on Fundamental Rights, which in essence says there will be no trials or punishments for political crimes committed secretly in the past provided these are now exposed and acknowledged, so that the victims may begin to forgive. As an Uruguayan woman whose child was 'disappeared' is quoted in documents from the Dealing with the Past Conference as having said, 'I am ready to forgive, but I need to know whom to forgive and for what.'
The debate has already raised some key issues in South Africa. One is how far senior political figures will accept responsibility for crimes carried out by their subordinates. (The police have threatened to document the personal responsibility of senior National Party figures if the names of amnestied police officers are to be gazetted, as the draft Bill proposes; they want senior politicians to accept blanket responsibility and leave their subordinates unnamed.) Another issue is whether, if the names of those amnestied are published, the particular crimes for which they are pardoned should be published too, or just the particular class of crime (e.g. 'murder', as opposed to the murder of X). A third issue is whether the hearings should be in private, as also provided for in the government-agreed Bill. (Victims of crimes understandably oppose this. But closed hearings seem unavoidable if the Commission's job is to establish only what happened, and not to substitute itself for a court of law deciding whether particular individuals are guilty of crimes.) Yet another issue concerns the period covered by the amnesty and the period during which it can be invoked. Security personnel want it to cover crimes committed in the election period from December 1993 to May 1994, whereas the end-date agreed in the transition negotiations was the end of 1993; and they would like to be able to invoke the protection of the amnesty at any time in the future - i.e. in the event crimes not exposed by the truth commission come to light later.
Also beginning to emerge from the debate is the problem of scope. The Human Rights Watch estimates that there were over 22,000 political killings between 1984 and 1994. How many were there before 1984? And how many cases of torture (not to mention the hundreds of thousands of routine - but nonetheless illegal and atrocious - beatings)? How many recorded deaths in detention? And how many still unaccounted-for disappearances? How big a staff, working for how many months or years, would it take to cover this delimited range of crimes?
For South Africans wrestling with these highly charged issues, so crucial to any genuine healing of past wounds, the documents contained in Dealing With The Past: Truth and Reconciliation in South Africa, should be a vital reference-point.
The Conference heard from human rights workers and activists in ten countries in Latin America and Central and Eastern Europe that have emerged from repression in the past two decades. Among those who took part in the Conference was José Zalaquett, a member of Chile's National Commission on Truth and Reconciliation, in some ways a model for the one proposed now for South Africa. Virtually every problem now being confronted in the South African debate has been an issue in one or more of these countries; and the way the Conference participants, both foreign and South African, handled these problems leaves a deep impression.
These are morally and intellectually formidable people, veterans of hard struggles. In the reported final discussion there was a telling exchange between some of them and Heribert Adam, who argued that 'one can be fairly sure a truth commission or a witch hunt would lead to more human rights violations and more confrontation' (p. 144). As Alex Boraine pointed out, the Chilean truth commission did not publish the names of anyone who appeared implicated in the crimes it investigated (i.e., it was not a court of law, and whether anyone not covered by amnesty was subsequently prosecuted was a matter for the judicial authorities). Tagging a truth commission-plus-amnesty a "witch-hunt" is really to argue for not dealing with the past at all; but experience shows that can all too easily lead to an eventual renewal of violence through private revenge or even renewed warfare. Croatia was cited by Aryeh Neier of Human Rights Watch as a significant case in point. Incoming President Tudjman's failure to acknowledge the atrocities done to Serbs at Jasenovac by the former Croatian Ustachi regime may well have triggered the present fateful conflict between the two republics. In other words, there is nothing "realistic" about opposing the idea of full disclosure, and it would be hard to find a more tough-minded group of realists than the ethics experts collected here.
What are the main issues as these experts saw them? First, why deal with the past? The answers the experts gave, crudely summarized, are:
(a) because the victims need to have the crimes against them exposed and acknowledged before they can forgive (as Mary Burton remarked, 'We keep hearing . . . about forgiving and forgetting, about wiping the slate clean. The trouble is that we have not even written on the slate yet' - p. 122) - and unless there is real forgiveness, the risk of mass public frustration (and of private acts of revenge), leading to fresh rounds of illegal repression by security personnel, and renewed civil war, cannot be ruled out;
(b) because the rule of law must be asserted; and
(c) because - though less certainly - exposure of secret crimes makes it less likely that people will resort to them again.
Second, what means may be used? They are: truth commissions to bring the crimes to light, followed by acknowledgement on the part of those responsible; reparations to victims (also envisaged in the mandate of the South African truth commission); disqualification of perpetrators from holding certain kinds of positions; prosecution and punishment of individuals for crimes.
Third, what are the political constraints which limit the use of these means? They are: the political power still exercised by those responsible for crimes; and - more intangible, but still very important for the ultimate aim of winning a broad consensus for the rule of law in the future - how far the crimes had support from a significant part of the population. Is it a case of a 'regime of criminals', whose actions more or less everyone repudiates, or of a 'criminal regime' with which, to some extent, very large numbers of people were morally complicit - people with whom the victims must now live? In the former case, crimes can be punished through the courts (as in Chile where in early 1994 people were still being tried for crimes committed after 1978 - a period not covered by an earlier amnesty); whereas in the latter case, it may be counter- productive, if not impossible (in terms of sustaining the transition to democracy) to bring anyone to justice. The relevance for South Africa of both kinds of cons traint is obvious - even if working out what exactly they make possible and impossible is very difficult.
Indeed all the issues involved in dealing with the past bristle with difficulties, and yet all of them seem important and urgent - as André du Toit neatly put it, they present 'an overload of relevance', necessitating tough choices about priorities, and realism and clarity about how to achieve them. For instance, how wide should the mandate of the truth commission be? Given the need for reasonable speed, both to get at the facts and to initiate the genuine reconciliation for which exposing the truth is a precondition, the Commission cannot be asked to look at every abuse, every illegal act, or even every beating, that the apartheid regime's police and army meted out, even though people (both the individual victims and whole communities) may well feel deeply bitter about them.
André du Toit suggested that the commission should focus only on the so-called 'third force', on state complicity in death squads and deaths in detention. Such a mandate, which does not include torture, would undoubtedly occupy even a well staffed commission for many months (the Chilean Truth Commission, which focused only on people who had been killed or tortured or 'disappeared', had a staff of sixty and took a year, and the scale of abuse in South Africa has been far larger). But it seems agreed that torture will be covered by the South African commission: one wonders how long this might take, and whether a very prolonged process might not become counter-productive. At the conference, Albie Sachs went so far as to say that 'anything that caused severe pain on the basis of racial domination must be part of the mandate' (p. 146); but could anything so potentially wide-ranging be reconciled with the need for rapid results? Latin American experience strongly suggests it is wise to aim for accomplishing someth ing solid and fairly quickly, while the political climate is still favourable, even if this means doing so on a relatively narrow front. There is real danger in aiming for more than either resources, political time or the real balance of political power will actually permit.
The South African Bill envisages that the truth commission may recommend reparations for victims. Several representatives from Latin America at the Conference also urged caution about raising expectations in this regard: how substantial can material reparations be, if the number of victims is very large? If reparations are made for crimes exposed by the truth commission but not for wrongdoing that falls outside its mandate, will this risk causing fresh resentments? Will symbolic reparations, like monuments or museums or gardens of remembrance, be enough? The Chilean President wrote personally to the families of every 'disappeared' person identified by the Truth Commission, together with a copy of the Commission's findings in which he or she was named. This might sound like meagre satisfaction, yet Albie Sachs, himself disabled by a letter-bomb and the ANC's prime mover in trying to get a truth commission established, sincerely described it as a 'very beautiful' action.
In South Africa it is already agreed that there will be an amnesty for all those who acknowledge their part in crimes exposed by the Commission, however this is to be interpreted. Not apparently envisaged in South Africa, however, are disqualifications. The Conference agreed that blanket disqualifications (e.g. all security policemen being banned from public employment) are inconsistent with the rule of law, which it is a prime objective to uphold. But participants did raise the question of how far it is politically, let alone ethically, 'safe' to leave torturers or death squad members in, for example, the security apparatus. Ideally there should at least be a due-process review of the record of each individual about his or her suitability for particular kinds of further employment. But how far this is politically practicable is always another story.
At every turn, of course, the realities of power are critical. The truth commission-plus-amnesty formula reflects the overall reality of the balance of power during the negotiations for the transition to democracy. The situation does not permit justice to be done and the guilty to be punished; but nor does it permit that nothing be done, that crimes remain secret and unacknowledged. On the one hand, the National Party is in the government and the old civil service, army, police and security service remain in place. On the other hand, the mass of the population, whose economic aspirations are mostly going to be realized very slowly, if at all, cannot be expected to accept that even the crimes secretly committed against them in the past are to be treated by those responsible as though they had never happened. So the critical question is, presumably, how far the representatives of white South Africa who want to preserve stability can be induced to go. Will they use their authority to make those responsible for the torture and murder of detainees, the pseudo-Inkatha and pseudo-ANC agents provocateurs killers and the assassination squads accept responsibility.
The police rank and file understandably do not intend to take the rap for those higher up. They want an amnesty to protect them from prosecution, but no publication of the names of those amnestied. Instead, they want a general acceptance by the politicians of responsibility for all the crimes: hence their threat to expose 'senior figures'. On the other hand, if no one directly involved is named, even in the most general terms, will victims, and the population at large, feel that any serious acknowledgement has been made for which forgiveness can then be given, and an amnesty justified? It is also pertinent that the senior ANC leadership is caught up with so many other urgent and difficult questions (it is significant that the election already kept most of them away from the Conference) and that some ANC leaders may prefer that the ANC's own abuses which it has (to its great credit and in sharp contrast to the NP) already acknowledged, are now forgotten -abuses that, however small-scale by comparison, will also be looked at again by the truth commission.
At the Conference Wilmot James (who has since become the executive director of IDASA) was frankly concerned that given a divided government, and one with interests to protect, 'the idea of dealing with South Africa's past may not be feasible' (p. 135). Others were less pessimistic, but speculated about second-best alternatives to state action, such as El Salvador's truth commission of three foreigners. Given the obstacles still to be overcome in establishing a truth commission in South Africa, various non-state initiatives are no doubt also being contemplated by some of those concerned. And it may be appropriate, in conclusion, to remember the continuing responsibility of historians in this matter. What Dimitrina Petrova had to say about the failure to preserve intact the files of the security police after the (confused and incomplete) change of regime in Bulgaria is relevant here:
But what is it that we have lost? The grand narrative is not lost because it can be reconstructed; the individual stories may or may not be lost . . . I believe that the past can still be reconstructed in Bulgaria.(p. 79)
A reconstruction of the past by historians cannot be a substitute for a strong truth commission with the power to subpoena witnesses, secure reparation for the injured and extract acknowledgement from the guilty in exchange for an amnesty. Yet historians could, in the last resort, at least help perform the primary task of exposing all the crimes that were kept secret and denied. By now, thanks to the Goldstone Commission, various trials and the admissions of numerous security personnel and former policemen and soldiers, much of what really happened to thousands of South Africans is no longer a mystery: hundreds of particular incidents have already been written up, however incompletely, and we already know the essentials about how the state security services worked. It would be harder for an independent team of private researchers than for a truth commission to document systematically the history of crimes against human rights in South Africa, together with detailed accounts of a considerable range of individ ual cases, but it would not be impossible. Acknowledgement, reparation and justice would no doubt follow only in exceptional cases. But at least it would be a significant step towards ensuring that, as Lawrence Weschler, writing about Latin America, puts it, 'facts [are] established, and the actual history [is] inscribed in the common memory' (p. 174), something which this remarkable and excellently edited collection of documents shows to be of real importance in itself.
- 30 -
Disclaimer: Opinions expressed in this article are those of the writer(s) and not do necessarily reflect the views of the AfricaFiles' editors and network members. They are included in our material as a reflection of a diversity of views and a variety of issues. Material written specifically for AfricaFiles may be edited for length, clarity or inaccuracies.