| Court Name: | Truth and Reconciliation Commission |
| Established: | 1996 |
| Country: | South Africa --> |
| Location: | Cape Town, South Africa |
| Type: | Court-like restorative justice |
| Terms: | Promotion of National Unity and Reconciliation Act, No. 34 of 1995 |
| Tribunal-Type: | TRC |
The Truth and Reconciliation Commission (TRC) was a court-like restorative justice[1] body assembled in South Africa in 1996 after the end of apartheid. Authorised by Nelson Mandela and chaired by Desmond Tutu, the commission invited witnesses who were identified as victims of gross human rights violations to give statements about their experiences, and selected some for public hearings. Perpetrators of violence could also give testimony and request amnesty from both civil and criminal prosecution.
The Institute for Justice and Reconciliation was established in 2000 as the successor organisation of the TRC.
The TRC was set up in terms of the Promotion of National Unity and Reconciliation Act,[2] No. 34 of 1995, and was based in Cape Town. The hearings started in 1996. The mandate of the commission was to bear witness to, record, and in some cases grant amnesty to the perpetrators of crimes relating to human rights violations, as well as offering reparation and rehabilitation to the victims. A register of reconciliation was also established so that ordinary South Africans who wished to express regret for past failures could also express their remorse.[3]
The TRC had a number of high-profile members, including Archbishop Desmond Tutu (chairman), Alex Boraine (deputy chairman), Sisi Khampepe, Wynand Malan, Klaas de Jonge and Emma Mashinini.
The work of the TRC was accomplished through three committees:[4]
Public hearings of the Human Rights Violations Committee and the Amnesty Committee were held at many venues around South Africa, including Cape Town (at the University of the Western Cape), Johannesburg (at the Central Methodist Mission), and Randburg (at the Rhema Bible Church).
The commission was empowered to grant amnesty to those who committed abuses during the apartheid era, as long as the crimes were politically motivated, proportionate, and there was full disclosure by the person seeking amnesty. To avoid victor's justice, no side was exempt from appearing before the commission. The commission heard reports of human rights violations and considered amnesty applications from all sides, from the apartheid state to the liberation forces, including the African National Congress.
The Commission found that there were 7,000 political deaths under Apartheid between 1948 and 1989.[5] [6] More than 19,050 people had been victims of gross human rights violations. An additional 2,975 victims were identified through the applications for amnesty. In reporting these numbers, the Commission voiced its regret that there was very little overlap of victims between those seeking restitution and those seeking amnesty.[7]
A total of 5,392 amnesty applications were refused, granting only 849 out of the 7,111 (which includes the number of additional categories, such as "withdrawn").[8]
The TRC's emphasis on reconciliation was in sharp contrast to the approach taken by the Nuremberg trials and other de-Nazification measures. South Africa's first coalition government chose to pursue forgiveness over prosecution, and reparation over retaliation.[9]
Opinions differ about the efficacy of the restorative justice method (as employed by the Truth and Reconciliation Commission) as compared to the retributive justice method, of which the Nuremberg trials are an example. In one survey study, the effectiveness of the TRC was measured on a variety of levels:
In the study by Orlando Lentini, the opinions of three ethnic groups were measured in this study: English-speaking White South Africans, the Afrikaners, and the Xhosa.[10] According to the researchers, all of the participants perceived the TRC to be effective in bringing out the truth, but to varying degrees, depending on the group in question.
The differences in opinions about the effectiveness can be attributed to how each group viewed the proceedings. Some viewed them as not entirely accurate, as many people would lie in order to keep themselves out of trouble while receiving amnesty for their crimes. (The commission would grant amnesty to some with consideration given to the weight of the crimes committed.) Some said that the proceedings only helped to remind them of the horrors that had taken place in the past when they had been working to forget such things. Thus, the TRC's effectiveness in terms of achieving those very things within its title is still debatable.
The hearings were initially set to be heard in camera, but the intervention of 23 non-governmental organisations eventually succeeded in gaining media access to the hearings. On 15 April 1996, the South African National Broadcaster televised the first two hours of the first human rights violation committee hearing live. With funding from the Norwegian government, radio continued to broadcast live throughout. Additional high-profile hearings, such as Winnie Mandela's testimony, were also televised live.
The rest of the hearings were presented on television each Sunday, from April 1996 to June 1998, in hour-long episodes of the Truth Commission Special Report. The programme was presented by progressive Afrikaner journalist Max du Preez, former editor of the Vrye Weekblad.[11] The producers of the programme included Anneliese Burgess, Jann Turner, Benedict Motau, Gael Reagon, Rene Schiebe and Bronwyn Nicholson, a production assistant.[12]
Various films have been made about the commission:
Several plays have been produced about the TRC:
A 1998 study by South Africa's Centre for the Study of Violence and Reconciliation & the Khulumani Support Group,[15] [16] which surveyed several hundred victims of human rights abuse during the Apartheid era, found that most felt that the TRC had failed to achieve reconciliation between the black and white communities. Most believed that justice was a prerequisite for reconciliation rather than an alternative to it, and that the TRC had been weighted in favour of the perpetrators of abuse.[17] As a result of the TRC's shortcomings and the unaddressed injuries of many victims, victims' groups, together with NGOs and lawyers, took various TRC-related matters to South African and US courts in the early 2000s.[18]
Another dilemma facing the TRC was how to do justice to the testimonials of those witnesses for whom translation was necessary. It was believed that, with the great discrepancy between the emotions of the witnesses and those translating them, much of the impact was lost in interlingual rendition. A briefly tried solution was to have the translators mimic the witnesses' emotions, but this proved disastrous and was quickly scrapped.[19]
While former president F. W. de Klerk appeared before the commission and reiterated his apology for the suffering caused by apartheid, many black South Africans were angered at amnesty being granted for human rights abuses committed by the apartheid government; local reports at the time noted that his failure to accept that the former NP government's policies had given security forces a "licence to kill" - evidenced to him personally in different ways - drove the chairman Archbishop Desmond Tutu almost to tears.[20] The BBC described such criticisms as stemming from a "basic misunderstanding" about the TRC's mandate,[21] which was to uncover the truth about past abuse, using amnesty as a mechanism, rather than to punish past crimes. Critics of the TRC dispute this, saying that their position is not a misunderstanding but a rejection of the TRC's mandate.
Among the highest-profile of these objections were the criticisms levelled by the family of prominent anti-apartheid activist Steve Biko, who was killed by the security police, and whose story was featured in the film Cry Freedom.[22] Biko's family described the TRC as a "vehicle for political expediency", which "robbed" them of their right to justice.[23] The family opposed amnesty for his killers on these grounds and brought a legal action in South Africa's highest court, arguing that the TRC was unconstitutional.
On the other side of the spectrum, former apartheid State President P.W. Botha defied a subpoena to appear before the commission, calling it a "circus". His defiance resulted in a fine and suspended sentence, but these were overturned on appeal.[24] Playwright Jane Taylor, responsible for the acclaimed Ubu and the Truth Commission, found fault with the commission's lopsided influence:
The TRC is unquestionably a monumental process, the consequences of which will take years to unravel. For all its pervasive weight, however, it infiltrates our culture asymmetrically, unevenly across multiple sectors. Its place in small rural communities, for example, when it establishes itself in a local church hall, and absorbs substantial numbers of the population, is very different from its situation in large urban centres, where its presence is marginalised by other social and economic activities.[25]