Picking up the pieces

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."

Charles Mokgatle, also a son of the deceased, pleaded with the community to b

ury the past and no longer persecute the family for their father's support of the Lucas Mangope government.

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.

In this week's hearing, Currin argued that the context in which the act was committed was characterised by intense political conflict and that the case needs to be understood in this light.

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.

Truth Commission Amnesty Committee Has an Uphill Battle

Rodwell, B., & Hamber, B. (1996, 24 May). Picking Up the Pieces: The Amnesty Committee Has an Uphill Battle. New Nation [Read Online]

Will reconciliation follow disclosure?

The first three weeks of hearings of the Truth and Reconciliation Commission have been marked by emotionally harrowing stories that victims across the political spectrum have related.

Time and time again, witnesses have broken down during their testimony and although some events occurred years ago, victims relate their stories as though they happened yesterday. Clearly, many wounds have not healed and scars carried by South Africans have been exposed by this difficult truth-telling process.

Many victims said that some of the burdens of the past have lifted as they told their stories. For those present, the question of "where was I when that happened?" must have gone through their minds forcing them to confront their own past.

The emotional impact of the hearings to date make it difficult to ask the question "Is this enough to build reconciliation in South Africa?" But it is a question we have to ask.

To answer this, a distinction between individual and national reconciliation needs to be made. Individually those giving testimony have themselves said that they have found telling their story healing. The hearings, however, only give us a brief look at the immense pain that many victims have had to reconcile within themselves.

We should not see particularly emotional testimony as an indicator of the individual coming to terms with his or her past. Individual healing is a personalised process; it depends on the support the individual gets before and after the hearing. However, it may also be the first step in coming to terms with what has happened and the personal road to individual reconciliation may be a long way off.

Opening of the TRC. Benny Gool—Oryx Media/Desmond Tutu Peace Centre

The issue of national reconciliation may be more complex. The media has covered the hearings extensively and this may have forced many South Africans to think about the dark days of apartheid.

This may anger some people when they think of past injustices. Others may begin to realise their role in either upholding or opposing apartheid and in doing so are coming to terms with what happened.

Interest will decline

Perhaps the question is what the hearings will mean in a year's time, when hundreds of stories have been told and heard. It can be predicted that media and public interest will decline over this time. Even if the interest was to continue, it is not guaranteed that simply listening to stories, as necessary as this is, will build lasting national reconciliation.

The Commission needs to ensure that the victims' voices are heard in schools, communities, and police and military institutions if we are to ensure that the lessons of the past will be learned. this needs to be happening at the same time as the Commission sits. If we wait for two years until the recommendations of the final report, the stories we have heard may be too far away.

A further challenge facing the Commission will come when the Amnesty hearings begin. One of the contributors to nation building has undoubtedly been the surprising willingness of victims to talk of forgiveness. However, one wonders how victims and the country will feel when perpetrators begin to tell of how they personally victimised and killed people.

This will be even more difficult if perpetrators do not show remorse. This is likely, as the granting of Amnesty rests on the perpetrator telling everything and not on merely being sorry for their deeds.

Marina Geldenhuys, a victim of the Church Street bombing, commented that "the new government is significant to me because now I can sit here and tell my story."

If she feels this, and she probably had more space to speak out than the majority of those victimised in the past, the initial hearings must have been successful in giving a voice to the victimised.

The challenge facing the Commission is to sustain this voice and draw the entire population into the process.

Originally published by Brandon Hamber, New Nation, 3 May 1996