The first Amnesty hearing of the Truth and Reconciliation Commission (TRC) provided the public with an interesting dimension, since the process started where the Amnesty Committee played the role as both judiciary and a reconciliatory body.
Although the applicants in this case did not receive amnesty as the committee still had to decide on their application, it achieved its purpose of reconciling a community torn apart by past action. Perpetrators of the murder and relatives of the victim were able to reconcile their differences.
The five-person Amnesty Committee which sat in Phokeng in North West province, heard evidence regarding the amnesty applications of Christopher Makgale and Boy Diale, for the 1990 murder of chief Glad Mokgatle.
Despite the need for the legal discipline, the Amnesty Committee played a reconciliatory role where the Bafokeng people were afforded the opportunity to reconcile with some of their broken past.
In terms of the legal process, the amnesty applicants and their legal team, headed by Brian Currin, were rigorously cross-examined to establish if the act of murdering the 85-year-old Mokgatle met the criteria required for amnesty.
At the same time, the Amnesty Committee gave the opportunity to various Bafokeng community members to make reconciliatory statements about the case and the effect on the community as a whole, even if this had no direct bearing on the granting of amnesty.
There were strong expressions of remorse for the crime on the part of both Makgale and Diale. Makgale asked for "forgiveness from the relatives of the deceased and the Bafokeng tribe."
Aaron Mokgatle, 54, son of the victim, told the committee, "Here in Phokeng we are one family. They (Makgale and Diale) performed a terrible deed - they killed their own grandfather, but we are still one family."
However, at the end of the day, it is the precise technicalities of the Promotion of National Unity and Reconciliation Act which establishes the Commission, against which evidence must be weighed when determining whether perpetrators receive amnesty.
In order for someone to qualify for amnesty the committee must be satisfied that full disclosure by the perpetrators of the relevant facts has been made. The act must have been of a political nature and must have occurred between March 1, 1960 and December 5, 1993.
The committee will also be guided by certain considerations:
- The motive of the person who committed the act;
- The context in which the act was committed, whether it was part of a political uprising or disturbance;
- The legal and factual nature of the act, including the gravity of the act;
- The object or objective of the act, in other words, against whom the act was primarily directed;
- Whether the act was carried out by order or approval of a political body, institution or individual; and
- The relationship of the act and the political objective and the proportionality of the act.
He stressed that the political objective was clear and that the applicants had broadly intended to regain control over Bafokeng political affairs, by attaining the keys from Mokgatle, to the Civic Centre, where all meeting and decisions regarding the tribe affairs took place. The vigorous approach of the TRC's legal team and members of the Amnesty Committee signalled the committee's intention to treat amnesty cases with the seriousness such violations demand.
The procedure of the hearings, determined by the Amnesty Committee, is modelled on court case proceedings, with the legal team leading the evidence on behalf of the TRC and the defence team on behalf of perpetrators.
The Commission, under the Promotion of National Unity and Reconciliation Act, is obliged to appoint legal representation for the applicants where they cannot afford to do so, or where it is in the interests of justice.
On observing the first hearing, it seems crucial to all amnesty applicants to have legal representation, as clearly amnesty will not be granted automatically and the committee will carefully scrutinise each case.
Despite the need for the legal rigor the Amnesty Committee also played a reconciliatory role. The Bafokeng people were afforded an opportunity to reconcile some of the pieces of the past history.
The real challenge to the Amnesty Committee will be when it starts to consider the 400 amnesty applications received to date, which may not be so clear cut and where there may be little feelings of remorse shown by the amnesty applicants.
Published by Brandon Hamber and Bobby Rodwell, New Nation, 24 May 1996.
At the time of writing, was the former Manager of the Transition and Reconciliation Unit at the Centre for the Study of Violence and Reconciliation and Bobby Rodwell a freelance writer and researcher attached to the Centre.