| 2006 Truth and Reconciliation Commission (TRC) |
|
In a landmark case before the Constitutional Court, the Azanian People’s Organisation and representatives of the Biko, Ribeiro, and Mxenge families challenged the constitutionality of the entire amnesty process. Specifically, the applicants in this case claimed that amnesty would create unconstitutional consequences for victims and their families by denying them access to courts for criminal prosecutions and by preventing them from obtaining civil damages either from individual perpetrators or the state. At one level, the Constitutional Court agreed with their arguments: ‘An amnesty to the wrongdoer effectively obliterates such rights,’ Judge Ismail Mohamed wrote in the Court’s decision. But at another level, the Constitutional Court acknowledged that these fundamental rights of victims and their dependants were limited by the amnesty provisions contained within the epilogue of the Constitution – which enabled South Africa’s democracy to come into being. In a sense, there was a trade-off implicit in the negotiated settlement: amnesty for perpetrators in exchange for full disclosure of the truth for victims. The Court’s decision in this key test case paved the way for the Truth and Reconciliation Commission to begin the amnesty process. Although the rights of victims and their families were effectively curtailed both by the legislation creating amnesty and by the decision of the Constitutional Court, their rights were not extinguished entirely and this depended upon the willingness of the perpetrators to come forward and reveal the full truth within the framework of the TRC process. Hearing victims’ voices in amnesty applications The LRC agreed to represent clients who wished to oppose amnesty being granted to perpetrators of gross violations of human rights. In this way, the LRC hoped to safeguard the rights of victims by ensuring that applicants for amnesty would be compelled to comply with the specific legal conditions laid out in the legislation or face the risk of rejection of their applications by the Amnesty Committee. These conditions required perpetrators to make full disclosure of their participation in human rights violations, prove that their actions were associated with political objectives, and show that their actions were proportionate to their political objectives. The LRC represented several families in opposing the granting of amnesty to perpetrators - the most notable of these cases being the amnesty application related to the torture and death in detention of Black Consciousness leader Steve Biko, who was killed in September, 1977. Representing the Biko family in opposing amnesty Advocate George Bizos of the LRC’s Constitutional Litigation Unit assisted the family in opposing the amnesty applications made by the security policemen accused of Biko’s torture and death. It was Adv. Bizos who had assisted Sydney Kentridge, SC, at the Biko inquest in 1977. This time, more than 20 years later, it was Adv. Bizos, assisted by attorney Miriam Wheeldon, who took up the case before the Amnesty Committee of the TRC.
At the hearings convened in Port Elizabeth in September 1998, George Bizos argued before the Amnesty Committee that the five policemen involved in Steve Biko's murder did not qualify for amnesty in terms of the legislation: ‘As at the inquest in 1977, the applicants have closed their ranks, entered into a conspiracy of untruths, and failed to reveal to this Committee the truth of Mr. Biko’s death. They have attempted to use this Committee for their own personal advantage in order to attempt to clear their names without revealing or taking any personal responsibility for the death of Mr. Biko or for the brutal, inhumane, and callous treatment to which he was subjected while in their custody.’ Ultimately, Adv. Bizos’ arguments persuaded the Amnesty Committee to withhold amnesty from the five security branch members. The Amnesty Committee denied their amnesty application in two separate judgments. The basis for their decision was the applicants’ failure to make full disclosure and their inability to demonstrate that they acted in pursuit of a political objective. For the Biko family and their lawyers, the Amnesty Committee's decision confirmed their belief that the whole truth about the tragic death of Steve Biko still remains unknown. Other matters related to the TRC Attorney Ellem Francis from the Johannesburg office assisted Sandra Mama in opposing the amnesty application of hit squad commander, Colonel Eugene de Kock, for the killing of her husband in March, 1992. In the Cape Town office, attorney Vincent Saldanha represented the family of the late Ashley Kriel in opposing the amnesty application of a notorious Western Cape security policemen, Warrant Officer Geoff Benzien. Benzien applied for amnesty in respect of Kriel’s death and the torture of other Cape Town activists. The committee granted Benzien amnesty. George Bizos and Miriam Wheeldon of the Constitutional Litigation Unit appeared on behalf of the families of the Cradock Four – Matthew Goniwe, FortCalata, Sparrow Mkonto, and Sicelo Mhlawuli – in opposing the applications of the five security policemen responsible for their deaths. The CLU represented the wives of the deceased activists. Amnesty was subsequently refused to the applicants. George Bizos appeared on behalf of the families of the late Ruth First and Jeanette Schoon in opposing the amnesty application of notorious apartheid-era spy, Craig Williamson. Amnesty has subsequently been granted in this case. The LRC represented the family of Janine Bellingan, who was murdered by her husband, Michael Bellingan, a security policeman, in September, 1991. Appearing at the amnesty hearings on behalf of the deceased's family were advocates Wim Trengrove and Gys Rautenbach, instructed by attorney Miriam Wheeldon. Amnesty has subsequently been denied to the applicant. Johannes Shabangu's life was thrown into despair when security policemen bombed his shop and abducted his eldest son, George. The policemen later returned to say that George had 'escaped', but he has never been seen since. Charles Pillai of the Pretoria office opposed the amnesty applications for five security policemen for the bombing of Mr. Shabangu's shop. He also brought landmark proceedings to challenge the prescriptions of a claim for damages for George's death on the grounds that the claim was prescribed through the fraud of the police who lied in saying that George had escaped. In this way, new avenues for civil damages claims arising from police misconduct were established. Throughout the life of the TRC, the LRC has played an important role in ensuring that the constitutional rights of survivors and their families have been protected - particularly in the process of granting amnesty to perpetrators. The TRC completed its work in 2001. A host of unresolved legal issues facing survivors and their families – from legal indemnity to reparations for victims, from access to records about human rights violations to prosecutions of perpetrators who never applied for amnesty - remain. For these reasons, there will undoubtedly be a continued need for the skilled services of public interest lawyers representing survivors and their families. The LRC was recently approached by a number of families in the wake of the introduction of a change to the national prosecutions policy. Our clients act in this matter in their personal capacities and as members of, and in the interests of the class of persons who are victims (or family members of the victims) of human rights violations committed during the apartheid era, where the perpetrators of the human rights violations were not granted amnesty at the LRC. The amendments to the National Prosecution Policy relate to the prosecution of criminal matters arising from “conflicts of the past” and came into force with effect from 1 December 2005. The prosecution policy amendments have the effect of allowing the prosecution authorities to re-introduce the amnesty opportunities that had been provided for in the TRC Act for those who failed to apply for, or who were not granted amnesty by the TRC Amnesty Committee.
The LRC has taken up the case on a number of grounds, including that prosecution policy amendments were effected without due attention being paid to the requirements of just administrative action as set out in section 33 of the Constitution and in the Promotion of Administrative Justice Act of 2000,. It is alleged that the amendments are unconstitutional and invalid in that they unjustifiably limit the constitutional rights of victims of crime (and their families) as follows:
With regard to those who applied for and obtained amnesty for other offences in terms of the provisions of the TRC Act, the amendment also breaches their rights to equal treatment before the law (s9(1) of the Constitution); and not to be unfairly discriminated against (section 9(3) of the Constitution). Nobel laureate Nadine Gordimer writing about advocate George Bizos in the Los Angeles Times on December 9, 1998: "[Bizos became] a South African civil rights lawyer of international standing, a devastating cross-examiner of apartheid’s torturers and killers. When George Bizos won a case during the apartheid era, during the transition after its end in the early 1990’s, and now as we approach our second universal franchise election, it was not, and is not, just a professional victory, but an imperative of a man whose deep commitment to human rights guides his skills and directs his life... Long before the Truth and Reconciliation Commission was visualised, he pursued relentlessly in the courts the truth of what was being done to those who suffered under and had the courage to oppose a tyrant racist regime. … Bizos’ contribution to the legal foundations to ensure human rights in a new South Africa moves far and wide into our national reconstruction, with membership of the ANC’s Legal Constitutional Committee, later advisor to the negotiating team in drawing the interim Constitution and Bill of Rights, then his appointment by President Mandela to the Judicial Services Commission for reform of the judicial system to eradicate the travesty of justice that was its apartheid past." The TRC Act provided for a conditional and transparent amnesty to be granted to those perpetrators who disclosed in full and who satisfied the tests and criteria set out under section 20 of the Act. As a direct consequence of this statutory arrangement an obligation was cast upon the justice authorities to investigate and prosecute those perpetrators who were declined amnesty (or indemnity from prosecution) and those who did not apply for amnesty. Very few prosecutions have proceeded since the winding up of the TRC. More recently the imminent arrests of three former police generals on attempted murder charges were held back on the grounds that a new prosecutions policy had to be created under section 279 of the Constitution (Act 108 of 1996). 1 Howard Varney, member of the Investigation Unit established to follow up ..... |
The legislation that established the Truth and Reconciliation Commission (TRC) in 1995 placed certain limitations on the constitutional rights of survivors of human rights violations and their families. There are two main areas in which the Promotion of National Unity and Reconciliation Act (Act 34 H of 1995) curtailed their rights. Firstly, the Act effectively prevented survivors and their families from seeking recourse in the criminal justice system against perpetrators of human rights violations who were granted amnesty. Secondly, the Act blocked survivors and their families from seeking civil damages arising out of human rights violations in instances where amnesty was granted to the perpetrators. In both instances, these constitutional rights of survivors and their families to access the courts were weighed up against the national interest. It was felt that - in the national interest - there should be a process that would occur within the time period of the life of the TRC and, in order to enable truth and reconciliation, those who qualified for amnesty from criminal and civil liability would be exonerated. Curtailing these legal rights, the proponents of the legislation argued at the time, was necessary and justified in order to promote ‘national reconciliation and unity’.