EXPLANATORY MEMORANDUM TO THE PARLIAMENTARY BILL
To provide for the investigation and the establishment of as complete a picture as possible of the nature, causes and extent of gross violations of human rights committed during the period from 1 March 1960 to the cut-off date contemplated by the Constitution, within or outside the Republic, emanating from the conflicts of the past, and the fate or whereabouts of the victims of such violations; the granting of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with a political objective committed in the course of the conflicts of the past during the said period; affording victims an opportunity to relate the violations they suffered; the taking of measures aimed at the granting of reparation to, and the rehabilitation and the restoration of the human and civil dignity of, victims of violations of human rights; reporting to the Nation about such violations and victims; the making of recommendations aimed at the prevention of the commission of gross violations of human rights; and for the said purposes to provide for the establishment of a Truth and Reconciliation Commission, a Committee on Human Rights Violations, a Committee on Amnesty and a Committee on Reparation and Rehabilitation; and to confer certain powers on, assign certain functions to and impose certain duties upon that Commission and those Committees; and to provide for matters connected therewith.
SINCE the Constitution of the Republic of South Africa, 1993 (Act No. 200 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 colour, race, class, belief or sex;
AND SINCE it is deemed necessary to establish the truth in relation to past events as well as the motives for and circumstances in which gross violations of human rights have occurred, and to make the findings known in order to prevent a repetition of such acts in future;
AND SINCE the Constitution states that the pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society;
AND SINCE the Constitution states that there is a need for understanding but not for vengeance, a need for reparation but not retaliation, a need for ubuntu but not for victimization;
AND SINCE the Constitution states that in order to advance such reconciliation and reconstruction amnesty shall be granted in respect of acts, omissions and offences associated with political objectives committed in the course of the conflicts of the past;
AND SINCE the Constitution provides that Parliament shall under the Constitution adopt a law which determines a firm cut-off date, which shall be a date after 8 October 1990 and before the cut-off date envisaged in the Constitution, and providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with;
MEMORANDUM ON THE OBJECTS OF THE PROMOTION OF NATIONAL UNITY AND RECONCILIATION BILL, 1995
The purpose of the Promotion of National Unity and Reconciliation Bill, 1995, is to bring about unity and reconciliation by providing for the investigation and full disclosure of gross violations of human rights committed in the past.
It is based on the principle that reconciliation depends on forgiveness and that forgiveness can only take place if gross violations of human rights are fully disclosed. What is, therefore, envisaged is reconciliation through a process of national healing.
The Promotion of National Unity and Reconciliation Bill, 1995, seeks to find a balance between the process of national healing and forgiveness, as well as the granting of amnesty as required by the interim Constitution.
WHAT THE CONSTITUTION REQUIRES
In order to advance national unity and the reconstruction of society the interim Constitution provides that “amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past”. It, furthermore, provides that Parliament must adopt a law providing for the mechanisms, criteria and procedures for the granting of amnesty. To this end that law must also provide for a cut-off date after which amnesty cannot be granted for any act, omission or offence.
WHAT INTERNATIONAL EXPERIENCE SHOWS
International experience shows that, if we are to achieve unity and morally acceptable reconciliation, it is necessary that the truth about gross violations of human rights must be:-
- established by an official investigation unit using fair procedures;
- fully and unreservedly acknowledged by the perpetrators;
- made known to the public, together with the identity of the planners, perpetrators and victims.
International human rights norms demand that any newly established government should deal with past gross violations of human rights in a way that ensures that the abovementioned requirements are met.
THE CONTEXT OF THE TRUTH AND RECONCILIATION COMMISSION
The Promotion of National Unity and Reconciliation Bill, 1995, combines the requirements of the interim Constitution with those of international human rights norms and provides for the establishment of a Truth and Reconciliation Commission (“the Commission”). The objective of the Commission will be to achieve national unity and reconciliation through the work it is mandated to do, which work will include investigations into gross violations of human rights, the granting of amnesty for acts, omissions and offences associated with political objectives and the recommendation of measures for the restoration of the human and civil dignity of the victims.
A gross violation of human rights is defined as the killing, abduction, torture or severe ill-treatment of any person by someone acting with a political objective. It includes, among others, the planning of such acts and attempts to commit them.
Amnesty may be given for acts, omissions or offences described as “acts associated with a political objective” and which is defined in the Bill. The definition also requires that such conduct must comply with the internationally accepted Norgaard principles (clause 20). Only acts associated with a political objective which were committed during the period from 1 March 1960 (the month of the Sharpeville massacre) to the last possible date specified in the interim Constitution (at present 5 December 1993) shall be considered for amnesty.
In view of the broad agreement that the Commission should complete its work as speedily as possible, the Commission will focus on gross violations of human rights committed since 1960.
Since it has been agreed that we must come to terms with the past and put it behind us, the Commission shall complete its work within a period of 18 months, which period may be extended by six months.
The structure of the Commission
The Commission will consist of 11 to 17 impartial and fit and proper persons to be known as commissioners. People with a high political profile will not be allowed to serve on the Commission as it is important that decisions are seen to be fair and unbiased.
The work of the Commission will mainly be done by three Committees, each with its own function. The Commission will have the power to establish subcommittees in order to enable it to work in different areas at the same time and so finish its work within the required time period.
The three Committees will be known as:-
- the Committee on Human Rights Violations;
- the Committee on Amnesty; and
- the Committee on Reparation and Rehabilitation.
THE COMMITTEE ON HUMAN RIGHTS VIOLATIONS
The task of this Committee will be to investigate gross violations of human rights in or outside South Africa and to record all allegations made by victims or others with personal knowledge or reliable information.
The Committee must establish:-
On completion of its investigations the Committee must prepare a full report of its activities, findings and make recommendations to the President on measures to prevent the commission of gross violations of human rights in the future.
- how and why such violations were committed, and who was responsible;
- the identity of the victims, their fate or present whereaboutsand the nature and extent of the injuries and harm they have suffered;
- whether violations were the result of deliberate planning by the State or any other organisation; group or individual.
THE COMMITTEE ON AMNESTY
This Committee will do the work required in terms of the Unity and Reconciliation clause of the interim Constitution. The task of the Committee will be to consider applications for amnesty for acts associated with a political objective and to grant amnesty where the Norgaard principles are met.
Because its function will include the weighing and judging of evidence, the Committee on Amnesty will be chaired by a judge.
Persons who wish to apply for amnesty for any act, omission or offence must satisfy the Committee that:-
Full disclosure is required in terms of the interim Constitution and demands an inquiry into the state of mind of the person responsible for the act, omission or offence in respect of which amnesty has been granted. The President must be informed of any decision to grant amnesty. In addition, the full names of the persons to whom amnesty has been granted must be published in the Government Gazette, together with information identifying the acts for which amnesty has been granted.
- the act, omission or offence was associated with a political objective;
- the act, omission or offence took place between the period 1 March 1960 and the cut-off date contemplated in the interim Constitution; and
- full disclosure has been made.
COMMITTEE ON REPARATION AND REHABILITATION
The task of this Committee is to deal with applications for reparation and rehabilitation by victims of gross violations of human rights. The Committee will have the duty of considering all the matters referred to it by the Commission, the Committee on Human Rights Violations and the Committee on Amnesty and must then make recommendations to the government.
While doing its work, the Committee must, among others:-
The Bill authorises the President to draw up regulations governing the policy to be followed with regard to the granting of reparations. A President's Fund, funded by Parliament and private contribution, may be established in order to pay amounts as reparation to victims in
terms of the regulations prescribed by the President.
- observe certain principles designed to protect the dignity and personal values, beliefs and convictions of victims;
- deal with applications in a way that is speedy, inexpensive, fair and accessible; and
- have regard to the privacy, safety and convenience of victims, their families and witnesses.
THE POWERS OF THE COMMISSION
The Commission will be given certain powers to carry out its work. These powers will include, among others, the carrying out of investigations and local inspections, the holding of hearings, the appointment of researchers, the right to subpoena any person to give evidence or produce documents or other items required and to inquire into any matter with a view to promote national unity and reconciliation.
Persons appearing before or subpoenaed by the Commission or any of its Committees are obliged to answer any questions put to them, whether or not the answer may be incriminating or expose them to liability. However, in view thereof, any answer, document or other object supplied by a person, which may incriminate him or her, shall not be admissible as evidence against him or her in a court of law.
PUBLIC HEARINGS AND THE QUESTION OF TRANSPARENCY
The proceedings of the Commission and all the Committees will be open to the public. If, however, the Commission or a Committee believes that a person testifying may be harmed by a public hearing or it would be in the interest of justice, it may hear his or her evidence behind closed doors and protect the identity of that person.
Any person subpoenaed or called upon to appear before the Commission or any of its Committees is entitled to legal representation.
COMPLETING THE WORK OF THE COMMISSION
The Commission must complete its work within 18 months after its constitution. If need be, the President may extend the period for a further period not exceeding six months. The Commission must within three months after it has completed its work, submit a final report to the President.
When it has completed its activities, a Committee must submit a report to the Commission. This report will form part of the final report to be submitted to the President by the Commission and will eventually be brought to the notice and knowledge of the entire South African Nation. It will, among others, be Tabled in Parliament, published in the Gazette and distributed throughout the country.
REPEAL OF PREVIOUS INDEMNITY LEGISLATION
Previous indemnity legislation will be repealed when the Promotion of National Unity and Reconciliation Act, 1995, comes into operation.
Indemnities granted under previous legislation will, however, remain in force and temporary immunity or indemnity granted in terms of such legislation shall remain in force for a period of 12 months after the constitution of the Commission.