Amnesty and
Reparations: Tools of the TRC
Amnesty
The amnesty provision was
the most controversial aspect of the TRC. In formulating the terms of
amnesty the Amnesty Committee, consisting of three judges and two
commissioners, considered the following:
|
A general or blanket
amnesty with no preconditions attached. |
|
A limited or
qualified amnesty. |
|
Amnesty where the
individuals concerned had to apply for it and have
their case heard in public. |
They
decided on the following conditions for amnesty:
|
The
act had to be politically motivated. It could not be for
personal gain or personal malice. |
|
The
act had to be committed between 1960 and May 10th, 1994. |
|
The
perpetrator had to apply for amnesty within a stated time frame and
‘make full disclosure’ of the details of the human rights
violation. |
|
The
applicant had to appear before the Amnesty Committee of the TRC in a
public hearing. |
|
If
granted amnesty the perpetrator could not be found criminally or
civilly liable for the violation. |
|
No
state or organization or body vicariously associated with the act
could be found liable.
|
The
Amnesty Committee’s justification for these terms were:
|
Without
such an amnesty the perpetrators would have no incentive to disclose
the truth. |
|
The
need for reconciliation and reconstruction in South Africa was critical
to the country’s future and deemed unachievable without truth-telling. |
|
The
amnesty provision was a critical component that enabled the parties to
achieve a negotiated settlement. |
|
The
amnesty was not based on legal terms nor human rights arguments but
was rather a political decision taken by the parties leading up to the
settlement which resulted in the 1994 election. |
|
Apartheid
had been so pervasive and lasted so long that it would have very
difficult to determine whom to prosecute. |
|
The
cost of hundreds of lengthy trials would have removed monies from
essential social development. |
There
have been more than 8,000 applications for amnesty in South Africa.
The majority, but by no means all, were granted amnesty.
Reparations
Victims were asked what they wanted from the government:
|
Financial
reparations to help with repairing a house; |
|
providing
education; |
|
unemployment
compensation for not being able to work any longer.
To get the truth; to break the silence. |
|
To
know where the body of their loved one is and to have some part of the
body for a proper burial. |
|
To
know why the perpetrators had done these terrible things to them and
their families. |
|
To
have a memorial e.g. to name a school after the victim; a peace park;
a place to go and mourn quietly. |
|
Assistance
with and opportunities for health care and treatment for the physical,
mental and spiritual problems ensuing from these gross violations of
human rights.
|
The
TRC Final Report submitted to the government in 1998 listed six
reparations policy recommendations:
|
Urgent
Interim Reparations: to provide immediate access to services and
facilities. |
|
Individual
Reparation Grants: each victim of a gross violation of human
rights to receive a financial grant over a six year period. |
|
Symbolic
Reparations: measures to facilitate a communal process of
remembering and commemorating the pain and victories of the past.
e.g. a national day of remembrance and reconciliation; memorials and
monuments; creation of museums. |
|
Legal
and Administrative Measures: assistance to individuals to finally
obtain death certificates; help in expediting legal matters; expunging
criminal records. |
|
Community
Rehabilitation Measures: to establish community-based services and
activities aimed at promoting the healing and recovery of individuals
and communities affected by gross violations of human rights. |
|
Institutional
Reforms: legal, administrative and institutional measures to
prevent recurrences of human rights abuses.
|
The Benefits of Reparations:
|
Enable
victims to experience in a concrete way the state’s acknowledgement
of the wrongs done to them. |
|
Restore
survivor’s dignity.
Affirm the values, interests, aspirations and rights advanced by those
who suffered. |
|
Raise
consciousness about the public’s moral responsibility to participate
in healing the victims and facilitating nation-building.
To date few of these recommendations have been implemented and where
financial reparations have been made, the amounts have been very, very
small.
|
Next:
Assessing
the Truth & Reconciliation Process
|