Understanding amnesty in South Africa

What really happened at the TRC?

The provision of conditional amnesty, as part of South Africa's transitional justice process in the 1990s, was contentious.

Factions from the liberation movement and from apartheid’s security forces were both pushing for a complete indemnification from past acts of violence.

But the idea of allowing apartheid’s killers and perpetrators of horrific violence to go unpunished was an equally powerful force resisting any kind of amnesty.

It was clear that this was going to be a complex and sensitive issue that President Nelson Mandela’s new government would have to treat with care and caution.

SAHA's Brian Currin Collection has a great collection of documentation relating to the development of amnesty in South Africa. As a leading human rights lawyer who founded Lawyers for Human Rights in 1987, the Brian Currin Collection contains research into the idea of amnesty and indemnity as South Africa moved towards majority rule. You can access this collection here: http://www.saha.org.za/collections/AL3065/c2.htm

As the Truth and Reconciliation Commission's (TRC) founding legislation was developed in the 1990s, a conditional amnesty for perpetrators of gross human rights violations was written into law in Chapter Four of the Promotion of National Unity and Reconciliation Act of 1995 (PNURA).

The compromises made to both sides of the fences - those pushing for and against amnesty – were clear, from the conditions that PNURA laid out for accessing amnesty.

The conditions for being considered for amnesty for committing gross human rights violations were made up of four key requirements:

1. Timing: the only acts that could be considered for amnesty were those that had taken place between 1 March 1960 and 10 ay 1994 (the date of President Nelson Mandela's inauguration).
2. Motivation: the amnesty applicants would have to prove that their actions were designed to support a political motive or ideology.
3. Proportionality: the scale of the offence would have to match the objective of committing it
4. Disclosure: amnesty would not be granted unless the committee ruled that the applicant had made a full disclosure of all aspects of their involvement in the offence.

By October 1997, 7116 applications for amnesty had been received by the TRC, of which only about 20% related to gross human rights violations. Adjudicating these required the amnesty committee to work for three more years, after the TRC's interim report had been handed to President Mandela in 1998.

So what did these 7116 applications look like?

When looking back on recent history, it is easy to see amnesty as a mechanism whereby many people escaped punishment for crimes they had committed during apartheid. But it's important to remember that the amnesty committee rejected 5143 of the 7116 applications received – that means 72% of amnesty applications were actually turned down. The reasons for the rejections vary:

The amnesty committee granted 1167 cases amnesty in full, and 145 cases partial amnesty. Partial amnesty was when some elements of the application were considered to have met the criteria – but other aspects of the case didn't.

You can read this example of a partial amnesty case here:

http://sabctrc.saha.org.za/documents/decisions/59182.htm. Check out SAHA's archival collection from the lawyers who dealt with the amnesty application of high-level security branch members: the Julian Knight and Rudolph Jansen Collection. You can also read all of the TRC’s amnesty decisions online here: http://sabctrc.saha.org.za/documents/decisions/unknown.htm?type=&sd=0&ed=1445347715&start=0

Most importantly, the amnesty committee handed over 800 cases to the National Prosecuting Authority for investigation and potential prosecution.

Today, one of the TRC's most concerning legacies is how little action has been taken on the issue of post-TRC prosecutions.

Nokuthula Simelane was a 23 year old operative for Umkhonto we Sizwe (the armed wing of the ANC) who was betrayed by a comrade and kidnapped by the Security Police in 1983. While the Truth and Reconciliation Commission (TRC) found that she had been kidnapped, tortured and forcibly disappeared, the location of her remains has not been revealed and her murderers have not been held to account. Nokuthula's family has been fighting for truth and justice for more than 3 decades. Notwithstanding their numerous pleas there has been no official closure, and her family have no launched an application for a formal inquest into her death.

Read more about Nokuthula's case on the Khulumani Support Group website here: http://www.khulumani.net/khulumani/in-the-news/item/1100-did-anc-protect-killers.html

Read the case’s media coverage, and access the court papers, here: http://www.saha.org.za/news/2011/May/press_release_sactj_press_release_on_launch_of_the_nokuthula_simelane_matter.htm