Benefiting of the truth commissions in Latin America, South Africa produced a different and unique truth commission that was admired by the whole world. The Commission held public hearings, by which the victims faced their torturers, asked them all the questions they had. This confrontation gave both parties a chance to put the past behind. This paper will try to evaluate the work of the TRC (Truth and Reconciliation Commission), what it did well at and what it fell short from achieving.
The commission depended legally on the Unity and National Reconciliation Act. They called themselves the wounded healers. The main purpose was to find the truth and give the victims a chance to say and to reveal all what was inside them. It was looked upon as the only way of reconciliation because it was known that it is impossible to achieve trails for all the perpetrators of the Apartheid. In deliberating on its findings, the Commission was guided by international humanitarian law and the Geneva Conventions. Unlike any other truth commission, the Truth and Reconciliation Commission had relatively sweeping powers to give or not to give amnesty to the perpetrators. The Commission encouraged Human Rights violators-Inside and outside the prison- to submit the amnesty application. The application had many formal rules and requirements. For example the applicant was to submit a written application made under oath and attested by a commissioner of oath. It was also required that the crimes committed to be of a political nature. All other sorts of crimes were not acceptable. The crime should be violent enough to be accepted as a major human rights violation. Applicants with less violent crimes were not admitted to be viewed. The applicant also must have committed the crimes in the prescribed period of time (March 1 1960 and May 10 1994). This was the period between the Sharpeville massacre and the inauguration of the first democratically elected president of the country.
If the Committee was satisfied with Applicant’s compliance, it granted the Amnesty. The committee notified both the victims and the perpetrators. Then all the pending case against the applicant fell and he was not accountable to them any more. All the imprisoned applicants who were granted amnesty were released. As for the refused applications, the committee also nittee also notified both parties. All the cases that were on hold because of the amnesty application were resumed. Any party aggrieved by the Committee’s decision could appeal to a higher court, which would examine whether the ruling was justifiable or not.
In the recommendations part, the commission noted the importance of a secretariat in the presidency to oversee implementation. It recommended and urged that a Reparation Trust be set up and trustees appointed. The Commission urged also that all beneficiaries of Apartheid make a contribution to the Reparation Fund.
Nancy Schepper-Hughes in one of the readings cites a victim that does not think that the TRC is right thing to do. It is making reconciliation even harder to achieve. He thinks that there should be greater emphasis on reconciliation. I do not agree with him. Yes, one can have a second thought about the reconciliation achieved by the TRC that is the TRC makes reconciliation impossible by reopening the old wounds. Nancy herself says in beginning, through a story she heard when she was a little girl, that no matter how sorry that amnesty applicant is, he can never undo what is done. This means reconciliation this way is impossible to achieve one way or another. But since it is impossible to achieve reconciliation, then at least we should work on discovering the truth. The ANC-African National Congress- and the Apartheid architect knew this fact during the agreement on the transition to democracy. That is why, beside other reasons, they both choose truth Commission instead of trails, however; the TRC choose to tie amnesty with guilt admission, which the former Apartheid regime did not expect
One of the defects the TRC had was the fact that only applicant with massive crimes against humanity could be admitted for amnesty. In order to give strong examples, the TRC did not admit the minor crimes for amnesty. The perpetrators in such cases were either brought back to prison or tried. One must ask her, Is there difference between massive and minor violence? If the law punishes all sorts of violence, then the Amnesty should cover all sorts of violence as well. What about those in prisons for small human rights violations? Was it their fault, that they were not violent or sadistic enough to get amnesty? Also those innocent people in jail, they could not apply for amnesty because they could not confess of something they did not do.
The TRC also failed to insure that the victims receive the promised reparation and disbursement. The government led by the ANC could not fulfill the TRC’s promises, and the TRC failed to force the government to. That is why many victims felt betrayed. Many others claimed that the TRC did not receive the expected response form the South Africans because only 22000 people came forward to the Committee, while it was expected to receive 100000 applications. Another fact to note is that only 10% of the 22000 cases were held publicly. The rest were processed behind closed doors.
Another fundamental issue is to be discussed here. Is it enough? Is it enough that the torturer writes an application asking for forgiveness and amnesty, and confronts the victim shedding few tears? Can they go back to the society now? Is this how justice can be best achieved? If the perpetrator is asking for forgiveness from their victims, should not the amnesty decision be up to the victims themselves? What good is the forgiveness if it does not matter in the decision making process? Is Truth a valid alternative to justice?
Theoretically and ethically, this is not enough. Society will never reconcile, unless the human rights violator are held responsible. The problem is that this is very hard to achieve. Through out the human history of violation, trails have been the exception rather than the rule. That is why Truth Commissions were made as a way of finding the truth. The TRC is the only truth commission that tried to achieve more than just the truth through the confrontations between victims and suspects. It had a more powerful committee. Some even think it was more like a court, consisting of commissioner, committee member, applicants, victims, and lawyers. This was not true, however. The fundamental difference here was that the applicants were already admitting their guilt, unlike the court, which fundamental purpose was to find whether the suspect was guilty or not. Even if it was more like a court, is not this what we are looking for in the first place? South Africa only turned to truth commission because it was impossible to have trails, not because truth commissions was seen as a better solution than trails.
Finally, I must say that in spite of all the defects in the TRC, it is looked upon as a historical continuation and refinement of quest for justice. After all, truth commissions are a very recent political phenomenon that still needs to mature. That will only happen through experiments like South Africa’s. This experience was in many
Respects a positive one for South Africa and for the ideas and forms of truth commissions. While recognizing that the realization of national unity and reconciliation is a long-term project involving a range of role players, the amnesty process has
Contributed in no small way to the promotion of these objectives.