Introduction by
the Minister of Justice,
Mr Dullah Omar
After a long process of discussion and debate, inside and outside of Parliament, the scene is finally set for the appointment of the Truth and Reconciliation Commission. It is important to understand the context in which the Truth and Reconciliation Commission will take place. The Commission is based on the final clause of the Interim Constitution which reads as follows:
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.
I could have gone to Parliament and produced an amnesty law - but this would have been to ignore the victims of violence entirely. We recognised that we could not forgive perpetrators unless we attempt also to restore the honour and dignity of the victims and give effect to reparation.
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
The objectives of the Commission will be to promote national unity and reconciliation in a spirit of understanding which transcends the conflicts and divisions of the past by:
- 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
The function of the Commission will be to achieve its objectives and to that end the Commission shall:
- 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
Apart from the powers and duties referred to under
Functions of the Commission, this Committee shall take
into account the gross violations of human rights for which
indemnity has been granted during the period between
1 March 1960 and 9 May 1995, or for which prisoners
were released or had their sentences remitted for the sake
of reconciliation and for the finding of peaceful solutions
during that period.
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
This Committee will 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 by publishing decisions granting amnesty in the
Government Gazette.
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
This Committee will:
- 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;
The Committee may:
- 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
Any person who is of the opinion that he or she has
suffered harm as a result of a gross violation of human
rights may apply to the Committee for reparation. The
Committee shall consider any such application and may
exercise any of the powers conferred on it, as outlined
above.
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
The President may, in such manner as he may deem fit, in
consultation with the Minister of Justice and the Minister of
Finance, establish a Fund into which shall be paid all
money appropriated by Parliament for the purposes of the
Fund and all money donated or contributed to the Fund or
accruing to the Fund from any source.
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
When dealing with victims, the actions of the Commission
shall be guided by the following principles:
- 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
Although the commission will be independent and will
have a full-time staff drawn from many different
categories, it will not be able to achieve its objectives
without the fullest cooperation from voluntary
organisations.
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.