From Apartheid to Democracy. Katherine Elizabeth Mack

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СКАЧАТЬ laid the basis for the resumption of negotiations after the breakdown of CODESA. Though the Record of Understanding guaranteed the release of an additional five hundred ANC political prisoners, it did not include an amnesty provision for government forces or for members of the white right, who consequently pressured the government to expand the Indemnity Act of 1990. Their efforts led to the passage of the Further Indemnity Act in October 1992. This act allowed for a panel appointed by the president to grant pardons for past abuses in secret hearings and, not surprisingly, was heavily criticized by international observers (Ntoubandi 157). The National Executive Committee of the ANC rejected the legality of the Further Indemnity Act outright, insisting not only “that the truth must be known, that it must be complete, and that it must be officially proclaimed and publicly exposed,” but also that only a democratically elected government should determine the form such truth telling would take (in Boraine, Levy, and Scheffer 139). Later that year, the “sunset clause,” brokered by Communist Party leader Joe Slovo, addressed the ANC’s criticism of the Further Indemnity Act by determining that amnesty would be granted only in exchange for full disclosure. The sunset clause laid the groundwork for the Multi-Party Negotiating Forum (MPNF), which convened on 1 April 1993 to write the interim constitution and create transitional political structures that would facilitate the first democratic election.

      The interim constitution, ratified on 18 November 1993, sidestepped the vexed issue of accountability for past abuses and the uncertain legal status of the prior indemnity acts. While it required that some form of amnesty be granted, it mandated that the parliament, soon to be democratically elected, would work out the thorny details. The “postamble” of the interim constitution reads:

      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.

      The postamble requires some form of amnesty and links it to the general goals of reconciliation and reconstruction, but it does not define “political objective,” establish a cut-off date, or provide any guidelines about the form that the amnesty-granting mechanism should take. Most importantly for my purposes here, the TRC itself “was not mandated or really even imagined within the interim constitution’s post-amble,” as Doxtader emphatically states (241). Following the democratic elections of 1994, the parliament engaged in a series of heated debates about the form of the mechanism that would grant the mandated amnesty. The newly appointed minister of justice, Dullah Omar, proposed the idea of a truth commission. Despite repeated assurances, members of the NP and the white right feared that the proposed truth commission would function as a witch hunt. They argued further that a commission would threaten the fragile reconciliation and deepen political divisions. In part to underscore that the TRC would not be “an Orwellian parody where the search for truth becomes a bludgeon to beat one party’s version of history into the heads of its opponents” (De Klerk qtd. in Boraine and Levy xviii–xix), the proposal was titled the National Unity and Reconciliation Bill. After much debate, in July 1995, President Nelson Mandela signed into law the Promotion of National Unity and Reconciliation Act, which called for the establishment of the TRC.

      The Promotion of National Unity and Reconciliation Act tasked the TRC with accomplishing far more than any prior truth commission. In addition to granting amnesty to individual applicants, the Commission was to analyze the “cause, nature and extent” of gross human rights violations that occurred between 1 March 1960 and 10 May 1994, recommend ways to prevent future violations, and restore the human and civil dignity of victims through testimony and recommendations for reparations. According to Alex Boraine, deputy commissioner, the TRC thus proposed “to help create the conditions for a truly new South Africa” (“Truth and Reconciliation” 142). The Commission had a bigger budget, and greater powers of subpoena, search, and seizure, than any truth commission before or since. The TRC also engaged in a “deliberate policy of maximum publicity” (Minow, “Hope” 238). This policy distinguished it from prior truth commissions, the majority of which conducted private investigations and only then produced written reports for public consumption (Hayner, “Same Species” 37). The TRC was intentionally public in multiple senses of the word: official (state-sponsored), transparent in its operations, open to all South Africans who wanted to attend its hearings, and highly publicized. The Commission sought to cultivate citizen participation throughout its process (TRC, Report 1: 53 and 104). It held public hearings for victims, amnesty seekers, and various other sectors (e.g., the media, the judiciary, women) that the general public and the press were encouraged to attend. In addition to these face-to-face public interactions, the Commission’s proceedings circulated widely in a variety of media: “The hearings were aired live on the radio for several hours each day, and videotape clips were replayed on the evening television news. The Truth Commission Special Report, an hour-long Sunday night television show, had the largest audience of all South African news or current affairs shows” (Hayner, Unspeakable 226). The TRC functioned as a “technology of citizenship” (Cruikshank 2), educating and regulating citizens in the capacities and consciousness of liberal democratic governance. To wit, the Report claims that “public participation and scrutiny [by the media] . . . helped the nation to focus on values central to a healthy democracy: transparency, public debate, public participation and criticism” (1: 104). The public hearings, in particular, taught participants and observers how to participate in civic affairs in a manner befitting the new democracy. Chairperson Desmond Tutu’s reminder to participants at one of the public hearings reveals the Commission’s pedagogical intent: “People who may be disagreeing, and may be on all sorts of sides, but one of the things about a new dispensation on all of our democratic and constitutional rights is, is that we have, all of us, points of view which have to be respected” (“Human Rights Hearing”). Finally, the TRC’s positing of reconciliation as a goal and as an outcome of its truth seeking also distinguished it from most prior truth commissions (Hayner, “Same Species” 39).³

      The Commission convened in December 1995 and concluded in 2003 with the publication of the last two volumes of the seven-volume Truth and Reconciliation Commission of South Africa Report.⁴ Seventeen commissioners, selected so as to represent a range of professions and political parties, headed the TRC’s three primary committees—the Human Rights Violations Committee (HRVC), the Amnesty Committee (AC), and the Reparations and Rehabilitation Committee (RRC). The TRC’s rhetorics shifted over the course of these eight years in response to the participation of different agents, internal and external to the Commission, as well as to the differing goals and priorities of these three committees. During the first stage of the Commission’s development, as the Promotion of National Unity and Reconciliation Act was drafted and the Commission was established, a “political sense of reconciliation” dominated, with nation building as its end (A. Du Toit, “Moral Foundations” 130). According to Andre Du Toit, a professor of political science at the University of Cape Town, the work of the HRVC prevailed during the second stage and a “religious and therapeutic sense of reconciliation” through truth telling took precedence (131). The HRVC offered victims of gross human rights violations the opportunity to relate their accounts of these violations. Of the 22,000 victims who gave statements, roughly 2,000 gave their testimony in the committee’s public hearings (Chapman and Van der Merwe 10). As the HRVC hearings concluded, the AC’s concerns became central, with a corresponding shift away from storytelling to fact-finding and legal concerns with due process (Gready 56; Simpson 237–38). During this stage, “quasi-judicial and adversarial procedures” dominated (A. Du Toit, “Moral Foundations” 131). The AC required that individual perpetrators—not bodies, parties, or organizations—submit an application for each gross human rights violation for which they sought amnesty. Applicants had to demonstrate that their violations were politically motivated and that they had fully disclosed their nature and extent. The AC received roughly 7,000 applications, of which 1,793 were heard in its public hearings (Chapman and Van der Merwe 11). The RRC was СКАЧАТЬ