11 February 1990: Nelson Mandela's walk to freedom after 27 years in prison South Africa’s first general
elections were successfully completed in April 1994. Nelson
Mandela was inaugurated as the country’s first black
President on 10 May. South Africans began to pride themselves on having
created a state based on the rule of law, and having laid the foundations for a
just and multiracial society.
Nevertheless, old habits of conflict
still represented a threat to the trust any democratic system requires to
function. Bitter memories of the past, of untold thousands of deaths,
detentions and victims of torture, and the thoughts of their murderers,
torturers and kidnappers would have continued to haunt the families of killers
and survivors alike, had the tragic circumstances remained a secret, and a
mystery.
The law and the witnesses
To deal with the apartheid trauma,
the creators of South Africa’s new constitution had to find a way to deal with
the victims, their families and the perpetrators of these events. The solution
was sought somewhere in between full trial and punishment (hardly feasible
while the former members of the regime were part of the new South Africa’s government
and administration) and a general amnesty that would have absolved them.
As the Democratic Party leader Alex Boraine said,
‘impunity threatens belief in a democratic society.’ Such an absolution would
have created mistrust in the judicial system - one of the pillars of any
democracy. Amnesty would have left in its wake an atmosphere of pervasive moral
ambiguity. In the final analysis, it would have institutionalised the lies of
the past. The absence of punishment denies and disproves the real events of the
past and creates a double-layered history of official and unofficial truths – a
moral environment which could sorely tempt people to take the law into their
own hands. Marina Warner poses the question in her introduction to
openDemocracy’s debate on ‘Apology’. Can confession and apology lead to
reconciliation?
Obliged by the interim constitution
to regulate some form of amnesty, parliament wrote a ‘Law for the Promotion of
National Unity and Reconciliation’, which led to the creation of the Truth and Reconciliation Commission
(TRC) in July 1995. The TRC was given the task of investigating all human
rights violations, from the Sharpeville
massacre on 1 March 1960 until the inauguration of Mandela in May 1994. The
truth was intended to reconcile and heal a once bitterly divided society.
The TRC was
designed as a vehicle for national catharsis for the new South Africa. The aim
of its seven-member commission, chaired by Archbishop Desmond
Tutu was, in Tutu’s
own words, ‘to provide for the establishment of as complete a picture as
possible of the nature, causes and extent of gross violations of human rights.’
Unlike previous ‘truth commissions’
in South America, the South African TRC considered public access and
transparency to be crucial to the workings of the commission. Not only the
names of the victims were published, but also those of the perpetrators (in
Argentina, the perpetrators were protected by acronyms). Millions of South
Africans heard the truth about the apartheid years for the first time, some
through daily newspapers, but many more through television and, especially,
radio. Radio Zulu’s weekly Truth Commission Report had more than a million
listeners.
One problem the TRC faced was that
the leaders of the political parties did not consider it necessary to apply.
Chairman Tutu regretted ‘the reluctance of political leaders of all persuasions
to submit applications.’ But he did not let them divert him from the search for
truth: ‘We can probably get to the truth without them; their subordinates are
coming forward in sufficient numbers for us to put together most of the puzzle
without them. But in hiding behind the foot-soldiers, they are squandering an
important opportunity for reconciliation.’
The crime and the proof
In the week from 9 to 13 February
1997 the TRC Committee on Amnesty sat in the Edendale Lay Ecumenical Centre
near Pietermaritzburg to hear applicants and witnesses in cases as varied as
the torture and assassination of the African National Congress (ANC) activist Mbongeni Jama by the policemen
William Harrington, Frans Stephanus and Phelemon Madlala, or the murder of the Inkatha Freedom Party (IFP) supporter,
Mkhononodaka Gumede by the former chairman of the ANC Youth League in Ongoye,
Celinhlanhla Mzimela.
I was in Edendale for two days.
During that time four cases were due to be heard: two applications by IFP
supporters sentenced for multiple murder who sought amnesty despite their
party’s boycott of the TRC process, and two by ANC supporters. In the event,
only one out of four was heard: the other three applicants having yet to
procure themselves legal representation.
Mkleyi Henry Khanyile was the
applicant. He sat on the left of the stage facing the ‘proof leader’, Thabile
Thabethi and his own lawyer, who surprisingly did not sit next to his client.
This arrangement expressed the unique nature of a TRC hearing where, unlike in
an ordinary criminal court, no case for the prosecution is made. Instead, a
‘proof leader’ and a defence lawyer work towards an understanding of what the
applicant (not the accused) actually did. Between them, the five-person amnesty
committee chaired by Judge Hassan Mall took up the middle space, facing an
auditorium filled to perhaps a sixth of its capacity by approximately 150
spectators.
The applicant was a grassroots member of the ANC. He had already been sentenced to twenty years for the
murder of three members of an Inkhatha Freedom Party-supporting family.
According to Khanyile, himself, the following happened in the early hours of a
Sunday morning in March 1992. Three armed Inkatha members, of whom Khanyile
identified two as Paul Zulu and Kwai Ngobo, attacked the house of the ANC
supporter Luthuli, set it alight and shot at the occupants. Thereupon the applicant
for amnesty and five other comrades pursued the aggressors to the Ngobo kraal,
where they fled into one of the houses and started shooting at their pursuers.
Khanyile answered their fire, as he was the only ANC supporter with a gun,
while his comrades, armed with knives, surrounded the house.
When the shooting from the house
stopped, the six-year-old Peter and his three-year-old wounded brother
Tantsandani came out of the house. Khanyile questioned them about the position
of Zulu and Ngobo in the house. However, they did not answer, since they were
in a state of shock. The applicant and his comrades then left the scene,
without going into the house, since they feared that the IFP members wanted to
lure them into a trap.
Only later, at his arrest, did
Khanyile hear from the police that he had allegedly shot dead two old women and
a two-year-old child.
The interrogation and the truth
This statement sounded at first as
if it qualified Khanyile for amnesty, since he had the ‘political motive’ to kill
IFP supporters, and had killed the civilians inadvertently. ‘Nobody gave us any
order. We just decided ourselves, that whenever there was an attack, we would
defend ourselves and counter-attack.’
Nevertheless, the judges had doubts,
since the surviving boy, Peter, stated in the court case that the applicant was
in the house and shot at the women and children knowingly. He had even aimed at
Peter and pulled the trigger, but the gun had failed. He said Khanyile had
commented with the words, ‘you are lucky, you are saved.’
The Commission members set out to
verify whether it was probable that the applicant had shot from outside the
house and blindly killed three people. Judge Ngoepe tried to entangle Khanyile
in contradictions, since he knew how many rooms the house had. Attorney
Khampepe asked whether Khanyile did not think that women and children might be
in the house. Judge Mall wondered why the children would go to the man who had
shot at them and had killed their grandmothers instead of turning for help to
the IFP members in the house. Judge Wilson counted bullets: Khanyile had two
magazines with 16 rounds for his 9 mm pistol. After the shoot-out, he had six
bullets left, which means that he had fired twenty-six bullets of which
thirteen found their target. A good result for a marksman who fires blindly,
and this is without considering the shots Khanyile fired in pursuit of the
Inkatha men on the way from Luthuli’s house to Ngobo’s kraal.
Khanyile’s lawyer tried to improve
matters for his client by proposing that the civilians could also have perished
in the crossfire from the bullets of their own family. But when Judge Wilson
gave his summing up he addressed the applicant with the following: ‘I do not
think that you are honest and that you are complying to the rules of amnesty
application. You have not given a full disclosure of what happened that
morning.’
The amnesty committee had to
ascertain whether, beside the necessary full and truthful display of the
circumstances through the applicant’s account, the political motive justified
the crime. While the lawyer saw this as fulfilled by Khanyile’s express intent
to kill IFP supporters, the proof leader Thabile Thabethi contested the
proportionality of the death of three civilians to the motive. Judge Wilson
summed up the problem faced by the Commission. Referring to the court case
which had found him guilty, he said: ‘The judge sentenced the applicant because
he believed Peter’s statement. Can we reject the applicant because of Peter’s
statement?’
Determining the truth of what
happened in the early hours of that Sunday morning was made more complicated as
none of the relatives of the victims was present to give the other side of the
story. To succeed, the amnesty application needed the Commission to believe
that Mkleyi Henry Khanyile killed the civilians unintentionally. I asked Judge
Mall if this kind of ‘total war’, the targeting of relatives of IFP families,
which seemed to be involved here, could not be considered a political motive.
He said that amnesty regulations did not extend to the killing of relatives of
members of opposing parties. The law would not allow ‘total war’ as a political
motive that would justify amnesty. Khanyile’s application was to fail many months after the hearing.
Until May 1998 the TRC received
submissions. The Committee on Amnesty as well as the Committee on Human Rights
Violations had to complete their hearings by December. Tens of thousands of
submissions and statements were then consolidated and evaluated in the final
report which TRC chairman Tutu submitted to President Mandela, in December
1998. Mandela accepted the findings in spite of criticisms of superficiality
from many quarters.
The new openness of the South
African Broadcasting Corporation (SABC) meant that it assigned the sessions of
the TRC ample broadcast time on a weekly basis. The ‘Truth Commission Special
Report’ drew larger audiences than many a popular soap opera during the first
few months.
In the words of SABC journalist
Anneliese Burgess, the documents, video and sound material together constitute
‘a moral code that defines right and wrong for the new South Africa.’ The
history of human rights violations written by the TRC has become a collection
of moral fables, as it were, similar to the literary works of the world’s
religions such as the Bhagavadgîtâ, the Bible or the Koran.
