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From history to moral fable: truth and reconciliation in South Africa

Michael Rebehn
21 November 2002

In the transition from apartheid to democracy in South Africa, the country’s pioneering Truth and Reconciliation Commission was a key medium of national catharsis. Did it allow the society to face honestly, and thus move beyond, its violent past? The ambiguous story of Mkleyi Henry Khanliye, an ANC political activist and convicted child-killer, suggests that the answer lies in the process as much as the outcome.

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.

Nelson and Winnie Mandela
11 February 1990: Nelson Mandela's walk to freedom after 27 years in prison

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.

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