Amnesty a line in the sand? It’s not even close

If we know anything about the Johnson government in the UK, they are not great at sticking to agreements or taking the views of the devolved nations seriously. The recent statement by the Secretary of State, Brandon Lewis, proposing new legislation to enforce a statute of limitations for all conflict-related violations in Northern Ireland fits this mould.

In July 2019, following a 15-month consultation on the legacy proposal in the Stormont House Agreement (SHA) of 2014 agreed by all political parties, the British Government committed to its full implementation. Two years later, it is now proposing to pull the SHA apart.

The recent proposals remove a focus on justice and investigation, favouring information recovery and storytelling under an undefined banner of reconciliation. All of Northern Ireland’s five main political parties, the Irish government, civil society organisations and most victims’ groups are heavily critical of what amounts to an amnesty for conflict-era offences. Yet, the views of the people of Northern Ireland, and especially victims of both state and non-state violence, seem to matter little.

Ostensibly, Northern Ireland victims are less important than a Tory manifesto pledge to stop so-called “vexatious” legal cases against former British soldiers, even if the price is also a paramilitary amnesty.

Yet, the actual case for amnesty in Lewis’ statement is rather flimsy.

Firstly, Lewis points out that criminal investigations are increasingly unlikely to deliver in court. We know as time passes this is not incorrect. But because justice is unlikely, should prosecutions be abandoned? Could we imagine doing the same for other crimes such as rape because it has a low conviction rate? Choosing to abandon prosecution is not a logistical issue but a political one.

Secondly, it is stated that the current system is not working. But there is no current system. It is a mishmash of processes. No systematic and over-arching attempt has been made to deal with the past in Northern Ireland, despite a set of agreed proposals being put forward in the SHA.

Thirdly, it is implied that amnesty is the only viable route. Yet the British consultation on the SHA points out that the overwhelming view from the 17,000 responses was that amnesty was not appropriate. Two years ago, it was perfectly feasible for the other SHA mechanisms such as storytelling and information recovery to run alongside justice processes, yet suddenly this is off the table.

There are other options under discussion. For example, British soldiers remain eligible for the same deal as paramilitaries in terms of early release under the Belfast Agreement. If convicted, a maximum of two years can be served for conflict crimes. A discussion on reducing the length of this requirement to zero is an option. More radically, another option is to consider amnesty in exchange for truth as per the South African model.

Finally, Lewis argues that it is the criminal justice process that is hampering reconciliation. Is the implication that offering a blanket amnesty will lead to those who committed crimes miraculously coming forward, sharing the truth and seeking reconciliation with those they harmed? If so, this is devoid of reality.

Furthermore, contrary to Lewis’ assertion of amnesty fostering reconciliation, the British government’s own consultation on the SHA points out that curtailing the right to justice would “risk progress towards reconciliation”, not promote it.

What we also know internationally is that amnesties can create a short-term hiatus in a political process, but when justice is evaded, it simply festers and re-emerges rather than creating reconciliation.

The Spanish 1977 amnesty or “pact of forgetting”, following the Franco regime, has not stopped recent attempts to prosecute those responsible. Spain remains deeply divided. In Chile, the amnesty passed by Pinochet in 1978 was overturned in 1998. This led to dozens of prosecutions of those responsible for disappearance and torture over the following decades. Even in South Africa, there are new moves to prosecute those who did not avail of the amnesty offered by the Truth and Reconciliation Commission.

In this context, the current proposals are not the product of some difficult soul-searching and the only option left on the table. It is a cynical and calculated political move.

It fits a pattern of political evasion of truth that has been and continues to be fundamentally unjust to all victims. It demonstrates how little Northern Ireland victims mean to the UK government.

The major stumbling block to reconciliation and dealing with the past in Northern Ireland is not victims trying to exercise their rights to justice, but 50 years of avoidance, untruths and injustice.

What is needed now is courageous leadership that fulfils previous commitments and confronts the past head-on, not politicians trying to draw fanciful lines in the sand.

Far from dealing with the past, the proposed amnesty will simply redraw the battle lines for the future.

Published by Brandon Hamber in the Belfast Telegraph, 15 July 2021.

Photo credit: “The Troubles,Belfast, Northern Ireland 1970–2 Coldstream Guards” by Kaspar C Licensed CC BY-NC-SA 2.0

More amnesties for South Africa?

Seems like the discussion of more amnesties in South Africa is back on the cards, surely not? Some say that Mbeki's inauguaration may be the place to announce pardons for prisoners. ThisDay newspaper suggested on Tuesday that former security policeman and assassin Eugene De Kock might qualify for a presidential pardon. The National Prosecuting Authority said today that it would not stop hunting apartheid-era criminals unless asked to do so by Parliament and that no new law was being considered. The Centre for the Study of Violence and Reconciliation released a press statement saying they were "deeply concerned" that ongoing negotiations might be going on with regards to amnesties, and that if so, it would undermine the achievements of the TRC. So what is going on? Doesn't sound good and further amnesties surely cannot be the answer. They would only further undermine the minimal respect for the law in South Africa and contribute further to impunity...

No justice in amnesty without reparations

The last few weeks have seen a flurry of media reports on the Truth and Reconciliation Commission's reparations policy.  Victims who testified before the TRC accuse government of moving too slowly on the TRC's recommendations.  The government blames the TRC for not spending all the money allocated to the reparations budget.  In turn, the TRC is accusing the government of failure to act promptly on its recommendations.  

Whichever way you look at it, the victims are getting a raw deal.  They have been victimised by what happened to them in the past and have had to watch perpetrators getting amnesty.  They waited for two and half years for so-called urgent interim payments, which, on average, amount to little more than R3500 for violations such as murder and rape.  To make matters worse, the TRC's long-term reparations recommendations, tabled in October 1998, still await substantial discussion that moves beyond political posturing towards exploring feasible options.

Recently victims groups have made some strong statements in the press.  The Khulumani Victim Support Group have taken to the streets to protest the slowness of government’s response to the TRC's proposals.  The Justice Ministry’s spokesperson, Paul Setsetse, admitted in the City Press recently that the long-term process has “moved slowly” and that “there are no intentions to scale down final reparations or to sweep the issue under the carpet”.  This remains to be seen. 

Concrete proposals need to be put on the table.   These must move beyond the focus on the minimal urgent payments, which have obscured the real issue.   A long-term reparations policy needs to be fleshed out and debated publicly.  If this does not happen, victims may have cause to consider different legal options.  One is to investigate the constitutionality of limiting reparations in light of the generous amnesty provisions.  The other option may be to appeal to the international human rights community, many of whom are itching to test more legislation following the relative successes of the Pinochet case. 

The right to reparation for wrongful acts has long been recognised as a fundamental principle of law essential to the functioning of legal systems.  In this sense the right to reparation is not new.  However, internationally the will to enforce it seems to have increased.  

The hiatus in the reparations process in South Africa is in sharp contrast to the importance that reparations is currently being given internationally.  The UN Commission on Human Rights will adopt in the near future a set of Basic Principles and Guidelines on the right to reparation known as the ‘Van Boven Principles’.  Furthermore, the International Criminal Court, to which South Africa is a signatory, will be the first international criminal tribunal to have the power to award reparation to the victims of crimes which come before it.

Photo by Tingey Injury Law Firm on Unsplash

Reparation is recognised under international treaties and customary law in decisions by the United Nations Human Rights Committee, the Inter-American Court of Human Rights, the European Court of Human Rights and national law and practice, as well as in a number of other international treaties. Recent developments suggest that soon reparation will become an international standard not just a principle.  Therefore, if reparations are not granted to victims in the long run, and lets hope this is not the case, it may be possible for them to test whether this would contravene South Africa's international obligations. 

Another way in international law which may have relevance for the situation in South Africa is the developing concept of ‘legitimate expectations’. A 'legitimate expectation' is a tool of administrative law intended to provide procedural fairness. According to this concept, if a government publishes a policy or makes a representation about how it will proceed in making decisions, those affected by the decision must be given the opportunity of a hearing if the decision-makers act in a manner which is contrary to the policy.  Given the fact that reparations is enshrined in the act which gave birth to the TRC this may be a further route to consider if reparations are not granted. 

Australia has recently seen a successful case drawing on the principles of ‘legitimate expectations’.  This may set a precedent in which the ratification of international treaties will bind administrative decision-makers to take account of these treaties where they affect individual rights of their citizens.  For example, if the right to reparations is built into an international treaty, as it is in the Convention Against Torture of which South Africa is a signatory, the signatory will be obliged to make reparations.

Notwithstanding the reparations debate, there are also other international precedents that have developed recently which have implications for the TRC process.  Victims could, for example, challenge South African amnesties in the courts of other countries.  The reverberations from the Pinochet case in the UK has meant that the concept of ‘universal jurisdiction’ has become more widely recognised.  Certain crimes such as war crimes, crimes against humanity, genocide and torture are so universally abhorred that they constitute crimes against international law. A number of international treaties place signatory states under a duty to ensure that suspects who come within their borders are brought to justice, either by prosecuting them in their own courts, or by extraditing them for trial elsewhere.

Craig Williamson, for example, by admitting his responsibility for blowing up the ANC offices in London, is liable for prosecution should he ever come within British jurisdiction.   Other perpetrators given amnesty may also find that should they travel abroad from South Africa that the status of their amnesty will be challenged. There is also the possibility that amnesties granted in South Africa could be considered null and void internationally.

The survivors who came before the TRC have made an enormous sacrifice on top of the suffering they have endured. Our experience with survivors indicates what most of them want justice, not just truth.  The amnesty process has removed their right to criminal or civil action in the name of national reconciliation. Amnesty without reparations is tantamount to impunity.  Is the South African government now seriously asking them to forego their right to reparation?

At this stage, government would probably answer, no.  President Mbeki has stated they are committed to victims.  At the same time, however there is little evidence of a clear long-term reparations strategy waiting to be unveiled. 

The more victims feel frustrated by the delay in meaningful reparations, the more likely they will be to seek alternative forms of redress; a situation the government should closely attend to if it wishes to avoid international embarrassment. 

Originally published by Brandon Hamber &  Bill Dishington, Sunday Independent, 25 June 2000

Brandon Hamber was a former Programme Manager at the Centre for the Study of Violence & Reconciliation in Johannesburg.

Bill Dishington is Information Director from Redress in London.

Official silence on reparations cheats victims of past conflicts of their rights

A basic value recognised through the establishment of the Truth and Reconciliation Commission (TRC) was that it is better to deal with difficulties than to keep them hidden.  Yet, when it comes to the issue of reparations for those wronged in the political conflicts of the past, it appears that the government, which is responsible for implementing the TRC recommendations, is choosing to ignore the issue completely.  They appear to hope that if they do not say anything their responsibility will be forgotten. 

The TRC handed over its reparations proposals, which include both financial and symbolic strategies to assist victims, to government in October 1998.  Sixteen months later there has been no substantial debate in parliament.  The lack of government involvement has so stifled discussion that the issue is in danger of falling off the agenda.   Thabo Mbeki even failed to mention follow up to the TRC in his opening address to parliament

The result of the general lack of government engagement with follow up to the TRC has created a political vacuum.  Government is filling this gap with claims that they do not have enough money to make reparations – an odd statement considering they have not investigated possible options for funding.   Other people are fond of labeling victims by saying that the struggle was not about money.  This conveniently denies victims their legal rights and implies that those who went before the TRC, despite being encouraged to do so, went only for opportunistic reasons.  

Still others point out that the 18 000 odd TRC victims eligible for reparations do not represent the majority of those victimised by apartheid. They argue, perhaps correctly, that reparations should benefit entire communities.  But this view fails to acknowledge that those who came forward to the TRC did so in good faith and speaking before the TRC was an opportunity available to all South Africans.  

The Constitutional Court ruled that amnesty could be granted because reparations, be they broad or specific, will be made available.   The UN Economic and Social Council clearly states that survivors and the families of victims of human rights violations have a right to truth, a right to justice, a right to non-recurrence and the right to reparation.    There are at least five other international instruments, which talk of the need and right to reparation. 

Given this it is sad that the South African government, which is supposedly in sync with international human rights trends, has not even started to review such instruments.  This is even more distressing in the context that we have already circumvented the right to justice for many victims through the granting of amnesty. 

 It is startling that the government has only made one public announcement about reparations since October 1998.  The Ministry of Justice released a reactive statement in late 1999 following the victim’s protests to highlight the government’s slow progress on the issue of reparations.  Predictably, costs were highlighted in the Ministry of Justice’s statement as a “major constraint” to implementing the TRC recommendations.  Perhaps this is a factor, but at this stage, it is pure speculation considering no substantial research has been undertaken into the issue.

Photo by Old Mate on Unsplash

The lack of public debate so far runs the risk of reducing the critical question of reparations to the pragmatics of cost before any principles have been set.  Step one in the process should be to establish whether survivors of violence have a right to reparation in the first place.  To date, most South Africans and government have failed to even attempt to answer this question.  The principle must be established, and a thorough investigation undertaken before government starts to say the costs of a reparation programme are too great.

Furthermore, developing countries have borne these sorts of costs before.  In Chile - a country with a GDP per capita not very much higher than ours - children of those killed during the military dictatorship of Pinochet have a right to a monthly pension until they reach 25 years of age. For the rest of the beneficiaries the pension is for life. The monthly pension is between R1,400 and R2,000 for the family of the deceased depending on the number of dependants.  About 800 scholarships a year are also granted to the families of victims.  Victims also get free medical and psychological care. The fiscal burden of this programme is about R120 million per year.   The South African TRC proposes R480 million a year - for the next six years -  for a country over three times the size of Chile.

Over the next few years, government will find 30 billion rand to buy weapons, and even during the life of the TRC they found about R100 million a year to keep the process afloat, but they seem unwilling to consider finding funds to finish the process.

The political will to assist victims seems to be gone. However, letting sleeping dogs lie is rarely the cry of the victims.  Granted reparations cannot bring back the dead, but they are a moral right in any healthy society.  In the context of the loss of a breadwinner they can help restore a family to their previous level of subsistence.  Importantly, they reaffirm the victim’s dignity – something accusations of opportunism and government lethargy severely undermine.  Reparations tell the survivor that they are important and a valued member of society. 

A letter from the Truth Commission informing you that you are now officially ‘a victim’, is surely not enough to heal wounds and acknowledge pain. To date, well over 500 people have been granted amnesty in South Africa for murder and torture.  Granted, reparations alone cannot fully cancel the injustice of amnesty, but it is a start. 

The bare minimum is that we should debate the issue of reparations publicly and honestly.   If we then get to the point that we think reparations should not be granted, then we need to have the courage to stand face to face with victims and tell them that, despite their sacrifices, they have been deprioritised in favour of another budget item.  

Originally published  by Brandon Hamber in the Sunday Independent, 20 February 2000

Brandon Hamber was, at the time, co-ordinator of the Transition and Reconciliation Unit at the Centre for the Study of Violence and Reconciliation (CSVR).

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.

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