The Truth & Reconcilia0on Commission
SA 1990s
Reasons for The TRC
• First day of democracy = no blank slate following the transi8on to democracy - the apartheid state hadn’t
been violently overthrown or defeated
• Promo8on for na8onal unity and reconcilia8on was needed in order to secure a democra8c South Africa
• Claimed that ci8zens deserved to know the truth of what happened to their loved ones and their family
members
• Truth and Reconcilia8on Commission was thus established = “Truth: The Road To Reconcilia8on”
• Was a need to confront apartheid atroci8es, as well as the actual system for how it abused human rights
• Deten8on, abduc8on, murder - gross human rights viola8ons that occurred during apartheid
• ANC was held guilty of viola8ons of its own people - par8cularly, in an uMkhonto we Sizwe camp in
Angola known as QuaNro
• Tried to deflect cri8cism, claiming it was necessary to fight apartheid state - dealing as they thought was
fit
• ANC’s Na8onal Execu8ve CommiNee accepted the TRC findings, but decided such viola8ons needed to be
considered in the context of apartheid and in rela8on to the human rights viola8ons commiNed by the
state
• The apartheid state and the ANC wanted blanket amnesty — essen0ally, pardon for ALL viola0ons
1. In defence of these viola8ons and those who commiNed them, many asserted that the past should
remain in the past, and so retribu0ve jus0ce was NOT the way forward as it would not lead to
reconcilia8on, but only deepen the racial divide
2. Others claimed that retribu8ve jus8ce was needed to hold apartheid perpetrators accountable
because what was done by the defence forces was criminal. Therefore, those who conducted such
brutality should be convicted and punished considerably - following orders
3. However, there was also a concern that criminal prosecu8ons may destroy any incen8ve for the
defence force support
• Restora0ve jus0ce focused on reconcilia8on between vic8m and perpetrator - reaching a mutual
understanding, a common ground wherein jus8ce would be found
• Restora8ve jus8ce viewed crime as a viola8on of another’s human rights, whereas retribu8ve jus8ce
treated it as a viola8on of state law, an act against the state
• TRC made provisions for specific amnesty
• Retribu0ve jus0ce asserted that accountability for the perpetrator and their ac8ons was achieved
through punishment - puni8ve and vengeful
• 1990-1994: The four-year period of the nego8a8ons process provided ample 8me for people who had
commiNed human rights crimes to destroy evidence, thus making it difficult to find people guilty give that
to do so, the person in ques8on needs to be guilty beyond reasonable doubt
• The TRC had to provide an incen8ve to apartheid-era perpetrators thus, granted them indemnity from
prosecu8on given that they voluntarily came forward and shared their stories, disclosing every detail
• South Africa was s8ll dealing with very real threat that the security forces were not suppor8ng the
transi8on
• People were par8cularly concerned that such forces would not surrender power out of fear of criminal
ac8on taken against them
,• Ul0mately, restora0ve jus0ce was viewed as a compromise - an appropriate middle ground between
blanket amnesty and the call for criminal prosecu0ons and retribu0ve jus0ce
• Needed a nego8ated seNlement BECAUSE neither side had one - TRC was an essen8al element to
navigate coopera8on between the two sides
• To address the hate and pain that remained in the wake of apartheid
The Main Objec0ves
• To inves8gate the gross human rights viola8ons of the apartheid regime
• Apartheid security forces retained a notable presence and power within the country post-apartheid,
therefore their support for the transi8on was needed
• Due to this, retribu8ve jus8ce would serve to destroy any incen8ve they had to support a newly-
democra8c South Africa
• To find someone guilty in a court of law, need to find someone guilty beyond reasonable doubt
• However, evidence of killings was in many cases destroyed completely
• The expecta8ons as that retribu8ve trials would have a nega8ve effect on the transi8on to democracy and
the securing of na8onal reconcilia8on
• TRC was not set up to seek retribu8ve jus8ce, but instead restora8ve - not cons8tuted as a court of law
• Hearings were not proper legal trials thus, the TRC council did not have the power to prosecute
perpetrators
• Was primarily set up to uncover as much truth as possible
• Inves8gated the abuses perpetrated by both sides - understood that viola8ons were commiNed by both
the apartheid government and defence forces as well as those figh8ng against the regime
• Although the TRC accepted that those figh8ng against apartheid had a just cause, viewed their ac8ons as
s8ll needed to be held accountable Apartheid state security agents for apartheid claimed the TRC was a
“witch-hunt”
• Journey towards reconcilia8on could begin once the truth was known
• Had the demand for blanket amnesty on one hand and on the other, retribu8ve jus8ce
• That was resolved with compromised arrangement of restora8ve jus8ce in the interests of na8onal
reconcilia8on and unity
• “The nego8a8ng par8es agreed that amnesty would be offered to those who fully confessed, so long as
the offences were commiNed in pursuit of a poli0cal objec0ve” - prerequisite for amnesty
• Codified in post-amble to interim cons8tu8on, which stated that amnesty would be granted for “acts and
omissions associated with a poli8cal objec8ve”
• The Cons8tu8on commiNed to show a need for understanding, but not vengeance; a need for repara8on
but not retalia8on
• The TRC held hearings in public - crucial element as it was more community-oriented, ensuring that the
perpetrators in ques8on weren’t completely alienated from society as would have been done in
retribu8ve jus8ce
• They were then relayed our radio and television to be made accessible to the en8re country
• The Promo0on for Na0onal Unity and Reconcilia0on Act of 1995
- enabled the TRC to begin
- establishing of three par8cular commiNees
- Human Rights Viola0ons CommiPee - to uncover the truth, to inves8gate and establish the most
complete full picture as possible
- Amnesty CommiPee - to grant amnesty to those who disclosed all events of which they were part
, - Rehabilita0on and Repara0ons CommiPee - to iden8fy, locate and recommend repara8ons to vic8ms
of gross human rights viola8ons
- Compiling of reports as a record of their findings to ensure that further viola8ons did not occur
- The act only made grant for amnesty under par8cular condi8ons
- THE CONDITIONS: Had to disclose EVERYTHING; applicant had to prove their poli8cal mo8ve as well as
the propor8onality of the crime to the poli8cal objec8ve
• Time period specified: From Sharpeville Massacre to 1994 elec0ons
• Began in 1996
• TRC essen8ally only operated for two years, handing in official reports to President Mandela in 1998
• Subsequently, in 2002, a second two-volume report was released
• Chairperson of TRC was Archbishop Desmond Tutu who was assisted by 17 commissioners with Alex
Boraine as the Vice Chair
• Was the world’s first truth commission that had hearings for vic8ms and perpetrators accessible to the
public, later publishing its findings
• TRC had a mandate to operate for two years from 1996 to 1998, though the amnesty con8nued past 1998
Table of Arguments - Retribu0ve vs Restora0ve
In favour In opposi0on
Retribu0ve Jus0ce - Was a necessarily puni8ve means - Retribu8ve jus8ce would only
of holding apartheid perpetrators further entrench the racial divide
accountable in South Africa
- These were gross human rights - Would not allow South Africa to
viola8ons and thus, their ac8ons “let the past stay in the past” and
should be met with legal move forward as a new democracy
punishment - Would also serve to destroy the
incen8ve for defence forces to be
suppor8ve of the transi8on to
democracy
Restora0ve Jus0ce - No8on of restora8ve jus8ce - Truth was a prerequisite for
provided a common ground reconcilia8on, yet this was not
between retribu8ve jus8ce and guaranteed
blanket amnesty - Would be impossible for one body
- It provided vic8ms and their to achieve na8on-wide
families with closure - cathar8c reconcilia8on over a very short
experience as they met face-to- period of two years - impossible to
face with their perpetrators condense this process so hugely
- Would enable a society in which - Only served to hold defence force
vic8ms and perpetrators could members accountable, excluding
coexist harmoniously the actual apartheid leaders
- Allowed for a bridge to be formed - ANC leaders were also not held
between the past and the future accountable - QuaNro MK camp
- The uncovering of truth would - Large amount go evidence was
allow for the process of destroyed, therefore they had no
reconcilia8on to be ini8ated means of differen8a8ng between
full disclosure or selec8ve truths
- Those who did not apply for
amnesty or were denied it were,
for the most part, not criminally
charged
