Amnesty or Impunity? A Preliminary Critique of the Report of the Truth and Reconciliation Commission of South Africa (TRC)

The Truth and Reconciliation Commission of South Africa was the fruit of a political compromise whose terms both made possible the Commission and set the limits within which it would work. These limits, in turn, defined the space available to the Commission to interpret its terms of reference and define its agenda. This paper takes the compromise legislation that set up the TRC as a historical given and focuses attention on the TRC's interpretation of its terms of reference. The TRC claimed to be different from its predecessors, whether in Latin America or Eastern Europe. It would practice neither impunity nor vengeance. It was therefore determined to avoid two pitfalls: on the one hand, reconciliation becoming an unprincipled embrace of political evil and, on the other hand, a pursuit of justice so relentless as to turn into revenge. To do so, the Commission was determined to address both "victims" and "perpetrators," not just one or the other. This double determination was first written into the interim constitution that paved the way for the legislation that set up the TRC. First, there would be no blanket amnesty. Amnesty would be conditional. It would not be a group amnesty. Every perpetrator would have to be identified individually, and would have to own up to his or her guilt—the truth—before receiving amnesty from legal prosecution. Second, any victim who is so acknowledged would give up the right to prosecute perpetrators in courts of law. Justice for the victim would thus not be criminal but restorative: acknowledgment would be followed by reparations. In sum, individual amnesty for the perpetrator, truth for the society, and acknowledgement and reparations for the victim—this was the pact built into the legislation that set up the TRC. Since the Act did not clearly define "victim," however, the definition of "perpetrator" was unclear as well. The task of defining "victim" and "perpetrator" was left to the Commission and was the single most important decision that determined the scope and depth of the Commission's work. Without a comprehensive acknowledgment of victims of apartheid, there would be only a limited identification of perpetrators and only a partial understanding of the legal regime that made possible the "crime against humanity." From this perspective, the paper identifies three key limitations in the Commission's Report. First, the TRC individualized the victims of apartheid. Though it acknowledged apartheid as a "crime against humanity" which targeted entire communities for ethnic and racial policing and cleansing, the Commission majority was reluctant to go beyond the formal acknowledgment. The Commission's analysis reduced apartheid from a relationship between the state and entire communities to one between the state and End Page 33 individuals. Where entire communities were victims of gross violations of rights, the Commission acknowledged only individual victims. If the "crime against humanity" involved a targeting of entire communities for racial and ethnic cleansing and policing, individualizing the victim obliterated this particular—many would argue central—characteristic of apartheid. Limiting the definition of harm and remedy to individuals center-staged political activists as victims of apartheid, as indeed happened with the victim hearings. The consequence was to narrow the TRC perspective to a political reconciliation between state agents and political activists, individual members of a fractured political elite, rather than the "national unity and reconciliation" mandated by the legislation that set it up. To pursue its actual mandate, the TRC needed to broaden its perspective: to work for a social reconciliation between perpetrators and victims required that the relationship between the state and the entire South African people be addressed. Second, by focusing on individuals and obscuring the victimization of communities, the TRC was unable to highlight the bifurcated nature of apartheid as a form of power that governed natives differently from non-natives. If the apartheid state spoke the language of rights to...