Introduction by

the Minister of Justice,

Mr Dullah Omar

This Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future rounded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.

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.

The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.

These can now be addressed on the basis 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 victimisation.

In order to advance such reconciliation and reconstruction, 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. To this end, Parliament under this Constitution shall adopt a law determining a firm cut-off date which shall be a date after 8 October 1990 and before 6 December 1993, and providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed.

With this Constitution and these commitments we, the people of South Africa, open a new chapter in the history of our country.

The question of amnesty must be located in a broader context and the wounds of our people must be recognised. I do not distinguish between ANC wounds, PAC wounds and other wounds - many people are in need of healing, and we need to heal our country if we are to build a nation which will guarantee peace and stability.

A critical question which involves all of us in how do South Africans come to terms with the past. In trying to answer this important question honestly and openly, we are fortunate in having a President who is committed to genuine reconciliation in our country and to the transformation of South Africa into a non-racial, non-sexist democracy based on a recognition of universally accepted human rights.

The President believes - and many of us support him in this belief - that the truth concerning human rights violations in our country cannot be suppressed or simply forgotten. They ought to be investigated, recorded and made known. Therefore the President supports the setting up of a Commission of Truth and Reconciliation. The democratic government is committed to the building up of a human rights culture in our land.

There is a commitment to break from the past, to heal the wounds of the past, to forgive but not to forget and to build a future based on respect for human rights. This new reality in the human rights situation in South Africa places a great responsibility upon all of us. Human rights is not a gift handed down as a favour by government or state to loyal citizens. It is the right of each and every citizen. Part of our joint responsibility is to help to illuminate the way, chart the road forward and provide South Africa with beacons or guidelines based on international experiences as we traverse the transition. We must guard against dangers and pitfalls! We must involve our citizens in the debate so as to ensure that human rights is not the preserve of the few but the birthright of every citizen! We must embark upon the journey from the past, through our transition and into a new future.

I wish to stress that the objective of the exercise is not to conduct a witch hunt or to drag violators of human rights before court to face charges. However, it must be stressed that a commission is a necessary exercise to enable South Africans to come to terms with their past on a morally accepted basis and to advance the cause of reconciliation. I invite you to join in the search for truth without which there can be no genuine reconciliation.

Objectives

of the Commission

• establishing as complete a picture as possible of the causes, nature and extent of the gross violations of human rights which were committed during the period from 1 March 1960 to the cut-off date including the antecedents, circumstances, factors and context of such violations, as well as the perspectives of the victims and the motives and perspectives of the persons responsible for committing such violations, by conducting investigations and holding hearings;

• facilitating the granting of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with a political objective and which comply with the requirements of the Act (Promotion of National Unity and Reconciliation Act);

• establishing and making known the fate or whereabouts of victims and restoring the human and civil dignity of such victims by granting them an opportunity to relate their own accounts of the violations of which they are the victims, and recommending reparation measures in respect of them;

• compiling a report providing as comprehensive an account as possible of the activities and findings of the Commission and containing recommendations of measures to prevent the future violations of human rights.

Functions

of the Commission

• facilitate, and where necessary initiate or coordinate, inquiries into:
  • gross violations of human rights, including violations which were part of a systematic pattern of abuse;
    
  • the nature, causes and extent of gross violations of human rights, including the antecedents, circumstances, factors, context, motives and perspectives which led to such violations;
    
  • the identity of all persons, authorities, institutions and organisations involved in such violations;
    
  • the question whether such violations were the result of deliberate planning on the part of the State or a former state or any of their organs, or of any political organisation, liberation movement or other group or individual;
    
  • accountability, political or otherwise, for any such violation;

• facilitate, and initiate or coordinate, the gathering of information and the receiving of evidence from any person, including persons claiming to be victims of such violations or the representatives of such victims, which establish the identity of victims of such violations, their fate or present whereabouts and the nature and extent of the harm suffered by such victims;

• facilitate and promote the granting of amnesty in respect of acts associated with' political objectives, by receiving from persons desiring to make a full disclosure of all the relevant facts relating to such acts, applications for the granting of amnesty in respect of such acts, and transmitting such applications to the Committee on Amnesty for its decision, and by publishing decisions granting amnesty in the Government Gazette;

• determine what articles have been destroyed by any person in order to conceal violations of human rights or acts associated with a political objective;

• prepare a comprehensive report which sets out its activities and findings, based on factual and objective information and evidence collected or received by it or placed at its disposal;

• make recommendations to the President with regard to:
  • the policy which should be followed or measures which should be taken with regard to the granting of reparation to victims or the taking of other measures aimed at rehabilitating and restoring the human and civil dignity of victims;
    
  • measures which should be taken to grant urgent interim reparation to victims;

• make recommendations to the Minister with regard to the development of a limited witness protection programme for the purposes of the Act;

• make recommendations to the President with regard to the creation of institutions conducive to a stable and fair society and the institutional, administrative and legislative measures which should be taken or introduced in order to prevent the commission of human rights violations.

Constitution

of the Commission

• The Commission shall consist of not fewer than 11 and not more than 17 commissioners, as may be determined by the President in consultation with the Cabinet.

• The President shall appoint the commissioners in consultation with the Cabinet.

• The commissioners shall be fit and proper persons who are impartial and who do not have a high political profile, provided that not more than two persons who are not South African citizens may be appointed as commissioners.

• The President shall make the appointment of the commissioners known by proclamation in the Government Gazette.

• The President shall designate one of the commissioners as the Chairperson and another as the Vice-Chairman of the Commission.

• A commissioner appointed in terms of the Act shall hold office for the duration of the Commission.

• A commissioner may at any time resign as commissioner by tendering his or her resignation in writing to the President.

• The President may remove a commissioner from office on the grounds of misbehaviour, incapacity or incompetence, as determined by the joint committee and upon receipt of an address from the National Assembly and an address from the Senate.

• If any commissioner tenders his or her resignation or is removed from office, or dies, the President, in consultation with his Cabinet, may fill the vacancy by appointing a person for the remainder of the term of office or may allow the seat vacated to remain vacant.

Structure

of the Commission

Committee on Human Rights Violations

The Committee may record allegations and complaints of gross human rights violations.

The Committee may also:

• collect or receive from any organisation, commission or person, articles relating to gross violations of human rights;

• make recommendations to the Commission as outlined under Functions of the Commission;

• make information which is in its possession available to either of the other two committees, a subcommittee or the investigating unit;

• submit interim reports to the Commission indicating the progress made by the Committee with its activities or with regard to any other particular matter.

The Committee will exercise the powers of investigation granted to the Commission in Chapter Six and Chapter Seven of the Act. This entails the establishment of an Investigating Unit which will investigate any matter falling within the scope of the Commission's powers, functions and duties, subject to the directions of the Commission, and shall at the request of the Committee investigate any matter falling within the scope of the powers, functions and duties of that Committee, subject to the direction of the Committee.

Committee on Amnesty

Any person who wishes to apply for amnesty shall within 12 months from the date of the proclamation make such application to the Commission in the prescribed form. The hearings of the Amnesty Committee, which will have a Judge of the Supreme Court as its chairperson, will be held in public unless, in the judgement of the chairperson and the committee, this may jeopardise life or limb, or contradict a process of fundamental human rights. The procedure can take different forms. Once the application form has been received by the Committee the Committee can, if it is satisfied that the requirements have been complied with, that there is no need for a hearing and that the act or omission or offence to which the application relates does not constitute a gross violation of human rights, in the absence of the applicant and without holding a hearing, grant amnesty and inform the applicant accordingly.

If, however, in the view of the Committee, a hearing is necessary the Committee will inform the person of the place and time when the application will be heard and considered. The Committee then will deal with the application by granting or refusing amnesty. One of the provisions laid down is that the applicant must make a full disclosure of all relevant facts. The Committee shall be guided by the consideration of certain laid-down criteria:

• the motive of the person who committed the act, omission or offence;

• the context in which the act, omission or offence took place, and in particular whether the act, omission or offence was committed in the course of or as part of a political uprising, disturbance or event, or in reaction thereto;

• the legal and factual nature of the act, omission or offence, including the gravity of the act, omission or offence;

• the object or objective of the act, omission or offence, and in particular whether the act, omission or offence was primarily directed at a political opponent or State property or personnel or against private property or individuals;

• whether the act, omission or offence was committed in the execution of an order of, or on behalf of, or with the approval of, the organisation, institution, liberation movement or body of which the person who committed the act was a member, an agent or a supporter; and

• the relationship between the act, omission or offence and the political objective pursued, and in particular the directness and proximity of the relationship and the proportionality), of the act, omission or offence to the objective pursued.

However, this does not include any act, omission or offence committed by any person referred to in subsection (2) of the Act who acted:

• for personal gain: Provided that an act, omission or offence by any person who acted and received money or anything of value as an informer of the State or a former state, political organisation or liberation movement, shall not be excluded only on the grounds of that person having received money or anything of value for his or her information; or

• out of personal malice, ill-will or spite, directed against the victim of the acts committed.

Committee on Reparation and Rehabilitation of Victims

• consider matters referred to it by the Commission, the Committee on Human Rights Violations and the Committee on Amnesty;

• gather evidence relating to the identity, fate and whereabouts of victims and the nature and extent of the harm suffered by them;

• make recommendations which may include urgent interim measures as to appropriate measures of reparation to victims;

• make recommendations relating to the creation of institutions conducive to a stable and fair society and the measures which need to be taken to prevent the commission of human rights violations;

• prepare and submit to the Commission interim reports in connection with its activities;

The Committee shall submit to the Commission a final comprehensive report on its activities, findings and recommendations.

The Committee will establish and make known the fate or whereabouts of victims and restore the human and civil dignity of such victims by granting them an opportunity to relate their own accounts of the violations of which they are the victims and by recommending reparation measures in respect of them.

Applications for Reparation

In any matter referred to the Committee and in respect of which a finding as to whether an act, omission or offence constitutes a gross violation of human rights is required, the Committee shall refer the matter to the Committee on Human Rights Violations.

If, upon consideration of any matter or application submitted to it and any evidence received or obtained by it, the Committee is of the opinion that the applicant is a victim, it shall, having due regard to the prescribed criteria, make recommendations in an endeavour to restore the human and civil dignity of the victim.

Over and above making recommendations which may include urgent interim measures, the Committee will report to the Commission with its findings and make recommendations which will be considered by the President with a view to making recommendations to Parliament and making regulations.

President's Fund

There shall be paid from the Fund all amounts payable to victims by way of reparation in terms of regulations made by the President.

Victims of Human
Rights Violations

• Victims shall be treated with compassion and respect for their dignity;

• Victims shall be treated equally and without discrimination of any kind, including race, colour, gender, sex, sexual orientation, age, language, religion, nationality, political or other opinion, cultural beliefs or practices, property, birth or family status, ethnic or social origin or disability;

• Procedures for dealing with applications by victims shall be expeditious, fair, inexpensive and accessible;

• Victims shall be informed through the press and any other medium of their rights in seeking redress through the Commission, including information on the role of the Commission and the scope of its activities and the right of victims to have their views and submissions presented and considered at appropriate stages of the inquiry;

• Appropriate measures shall be taken in order to minimise inconvenience to victims and, when necessary, to protect their privacy, to ensure their safety as well as that of their families and of witnesses testifying on their behalf and to protect them from intimidation;

• Appropriate measures shall be taken to allow victims to communicate in the language of their choice;

• informal mechanisms for the resolution of disputes, including mediation, arbitration and any procedure provided for by customary law and practice shall be applied, where appropriate, to facilitate reconciliation and redress for victims.

Support
Structures

There are many non-governmental organisations (NGOs) which have an outstanding track record of service to the community. Some of these are human rights organisations, some are psychological and/or social support service organisations whilst others are religious bodies. All of these have the potential to complement the work of the Commission.

Many of these organisations have already been involved in the preparation leading up to the appointment of the Commission. If you are a member of one of these organisations or belong to a church, mosque or synagogue, please encourage your organisation to play an active role in assisting the Commission.

If you have been a victim of political violence and are not sure how to contact the Commission or what your rights are, get in touch with an NGO or religious organisation closest to you and ask for their help. They will be able to put you in touch with the Commission.

Once the Commission is appointed it will advertise very widely on radio, TV and in newspapers and this also will assist you both in linking up with the work of the Commission and being in a better position to make direct contact with the Commission, should you wish to do so.

Whatever else is true, South Africa needs to be transformed and needs to move towards the consolidation of democracy and the development of a culture of human rights. The Truth and Reconciliation Commission can make a contribution in this direction but its work will be enhanced, broadened and strengthened with your assistance.

Questions
and Answers

1. Why should there be a Truth and Reconciliation Commission?

The Interim Constitution states that in order to advance reconciliation and reconstruction amnesty shall be granted in respect of acts, omissions and offences associated with political objectives committed in the course of the conflict of the past. But concern for perpetrators is not enough. There are many individuals, families and communities who have suffered deeply as a result of human rights violations. They deserve to know the truth as part of the healing process. It is the search for truth which can create the moral climate in which reconciliation and peace will flourish.

2. When will the Commission start its work?

The Act governing the Commission is in place and the process leading to the appointment of the Commission by the President is well under way. It is hoped that the Commission will be in place before the end of 1995.

3. What will the Commission do?

It will enable people who have violated human rights to apply for amnesty. In order to do this they must disclose fully the nature of the offence. It will enable victims and/or their relatives to "tell their story" and it will investigate human rights violations which are brought before it. It will provide a measure of rehabilitation to those who request it and limited reparation. It will also record the truth as fully as possible and publish this, together with recommendations at the end of its term of office.

4. How long will the Commission be operational and where will it be based?

The Commission is appointed for a period of 18 months and, if required, can apply to sit for a further six months. In addition, a further three months is allocated for the Commission to complete its report. The President will decide where the Commission will be based. However, it is probable that the Commission's work will be decentralised and the Commission itself and some of its committees will travel widely throughout South Africa.

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