The Truth About the Truth Commission
by Anthea Jeffery
by Anthea Jeffery
Foreword by John Kane-Berman,
SA Inst. of Race Relations (SAIRR)
SA Inst. of Race Relations (SAIRR)
Published by the South African Institute of Race Relations
Auden House, 68 De Korte Street
Braamfontein, Johannesburg, 2001 South Africa
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Copyright South African Institute of Race Relations, 1999
ISSN 1018-0842PD 15/1999
Spotlight Series: No 3/99
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The 1990s should have been a period of unqualified celebration for all who loathed apartheid and sought a society based on human dignity and equality before the law.
By his dramatic actions on 2nd February 1990, the then state president, Mr F W de Klerk, had opened the way to negotiation about a new constitution based on universal adult suffrage. Yet violence intensified very shortly afterwards. The Institute watched with horror. It was tragic and ironic that this happened at the same time as political reform gathered momentum. Moreover, the vast majority of victims were not policemen, soldiers, or insurgents. They were ordinary people, nearly all of them black.
From February 1990 to April 1994, nearly 15 000 people died in political violence in South Africa. These deaths amounted to 72% of the 20 500 political fatalities that occurred from 1984 to 1994. They constitute 62% of the more than 24 000 such fatalities that have now taken place since September 1984. The average fatality rate in political violence from 1985 to 1989 was about 1080 a year, but in the early 1990s it more than tripled to some 3 400.
Some of the victims of violence were shot dead by the police while demonstrating against injustice. Some were tortured to death. Some were kidnapped or ambushed or led into traps, and then killed. Some died when car bombs and limpet mines exploded.
Some were killed because they went to work or to the shops in the face of a stayaway call. Some died on commuter trains and taxis. Some were slain as they lay sleeping in their beds, or waiting at bus stops, or driving in cars. Some died in massacres.
Some were executed by the necklace method. Some died because they were white, others because they were black. Many of the dead were selected as targets, because they were 'terrorists', or 'collaborators', or political rivals. Some died because they happened to be in the wrong place at the wrong time.
We owe it to the victims and their survivors to ascertain and tell the truth about their deaths-to identify who killed them, to know why they were stabbed or shot or blasted by explosives or set on fire.
Knowing the truth would have value in itself. If we could reach a common understanding of the conflict of the past, it would also help lay the foundation for racial and political reconciliation. The goals the Truth and Reconciliation Commission (TRC) was mandated to attain were important.
Superficially, the TRC appears to have provided a balanced and comprehensive account, for it has issued condemnations all around: upon the former National Party (NP) government for instructing the 'elimination' of political opponents and then claiming surprise at their deaths; the Inkatha Freedom Party (IFP) for its massacres of supporters of the African National Congress (ANC); the Pan-Africanist Congress (PAC) and its armed wing for targeting civilians; the white right wing for planning an insurrection intended to derail democracy; the former United Democratic Front (UDF) for attacks in the 1980s on councillors, policemen, and collaborators; and the ANC for bombing operations that sometimes 'went awry' and killed civilians, for abuses in its camps in other countries, and for creating a climate in which some of its supporters thought certain violations to be legitimate.
The TRC was right to examine all these issues. It was also right to condemn these violations and their perpetrators. The fact that it condemned political organisations across the spectrum suggests, too, that it was even-handed in the way it did its work.
There is, however, a fundamental problem with its report. It was required to tell the truth in full. Instead it has told some of the truth, but far from all of the truth. Significant multiple killings have been omitted, without explanation.
Overall, the commission has done as much to distort as to disclose the truth.
Distortion arises from two main factors-the methods it used, and the aspects of violence it left out.
The commission's methodology is flawed, fundamentally so. The TRC failed properly to check the allegations on which it relied. It based key findings on untested and (effectively) uncorroborated statements that were sometimes mainly hearsay. It failed to comply with basic principles of fairness. It acknowledged that it was supposed to apply 'established legal principles' but in practice it exempted itself from them. It often relied on secret testimony and the self-serving allegations of criminals seeking to escape imprisonment. The quality and veracity of much of its 'evidence' was dubious. Yet it used this evidence to hold individuals and organisations accountable for what it depicted as premeditated murder-and did so without giving proper reasons to support its findings.
It also reached its major conclusions about violations when some 90% of amnesty statements (on its own reckoning, a vital source of evidence) had still to be considered. It never quantified how many political killings had occurred within its mandate period (extending from 1960 to 1994). It left 12 000 or more killings unexplained-notably those that occurred when violence was at its most intense. Its approach was selective rather than comprehensive. Some parts of its report are simply sloppy.
The commission sometimes effectively repudiated earlier judicial rulings without explaining why they were incorrect, or its own findings right. Sometimes, it got even basic facts wrong-such as the death toll in a well-known incident. On occasion, it misrepresented what courts or commissions of inquiry had earlier said. At other times, it simply ignored judicial rulings altogether, putting forth its own version of the truth as if no contrary finding existed. Both the law and principles of transparency and fairness require judges to give reasons for their findings. Often the TRC did not bother.
The commission also went so far as to redefine the meaning of 'truth' and indeed to denigrate the very notion of 'factual and objective truth'. It invented 'narrative', 'dialogue', and 'healing' truths, tacitly admitting that the truth it told was something other than factual.
Distortion also arises from what the TRC left out of its account. The commission rightly probed counter-revolutionary strategies and activities, some of them criminal. It failed adequately to probe the revolutionary activities the counter-revolution was supposedly designed to overcome.
The conflict, contrary to earlier predictions about South Africa, was not a race war. One of the major, and, for some people, embarrassing, problems confronting anyone examining the fatalities that occurred from 1984 to 1994 is the fact that nearly all of the victims were blacks, who were killed by other blacks. The depiction of violence as 'black-on-black' is a crude simplification which explains nothing. The real question is why these deaths occurred. Can they be explained by rivalry between competing political organisations? There was, of course, rivalry between the ANC and the IFP. There was also rivalry involving other organisations, such as the PAC and the Azanian People's Organisation, though on a smaller scale.
But why was some of the rivalry so violent, particularly as between the ANC and the IFP?
Two broad theories have been proffered in explanation. The first is that the conflict was engendered and continually stoked by a government-backed 'third force' which sought thereby to destabilise the ANC. The second recognises the brutalities of apartheid and the methods used to maintain it, but posits that many, or perhaps even most, of the deaths arose in the context of the 'people's war'.
The TRC in effect embraced the third-force theory. Though it found that 'little evidence existed of a centrally directed, coherent and formally constituted "third force"', it also held that elements in the security forces and the IFP had fomented and engaged in violence, with the active collusion of senior security force personnel and the effective condonation of the government. Its further findings-that the government in collusion with the IFP was responsible for the 'predominant portion of gross violations'-also reflects the third force theory. So too does its finding that the government deliberately mobilised one group against another, and helped establish 'hit squads' (including the Caprivi trainees) for use against its political opponents.
On one level, it is obvious that apartheid was a lethal system. Clearly, there is also no justification for the fact that, when agents of the state killed people, they were seldom taken to task. Moreover, the National Party government, by stigmatising its opponents as communists and the like, created a climate of extreme hostility towards them. This, plus the fact that it used inflammatory language and turned a blind eye to some killings, was predictably interpreted by policemen or soldiers as a licence to kill outside the framework of the law. Clearly too, security force and IFP members conspired to commit acts of violence.
All this, and much more, has been recorded over many years by the Institute as well as others. However, the TRC went significantly further. It depicted the former government as a criminal state. It found apartheid a 'crime against humanity'. And though it based this last conclusion on the racist nature of apartheid rather than on any policy of genocide, this qualification may not be widely known or understood.
Implicitly, the TRC equated the former state with the Nazis. Such generalised accusations require a far greater level of substantiation than the commission has even attempted. It also requires an explanation of why the government would embark on a process of fundamental political and constitutional reform and at the same time allow its agents to plunge the country into violence.
What, then, of the theory about the people's war? Numerous submissions to the TRC had detailed the role in violence of the 'armed struggle', especially after it had evolved (in the 1980s) into what the ANC termed a 'people's war'. The people's war explicitly targeted not only policemen and soldiers, but also local councillors, 'collaborators', 'informers', and all 'puppets and agents of the regime'. The aim of the people's war was to render South Africa 'ungovernable' and ultimately overthrow all authority. But because it relied on the masses to mount an insurrection-rather than on trained guerrillas to fight the police and army-the violence it generated spiralled out of control. And because it targeted so many in the black community, it also provoked a violent backlash from some at least. Once the retaliation began, moreover, it developed its own momentum and, among other consequences, evolved into a civil war between the ANC and the IFP that spread in time from Natal and KwaZulu to the Reef.
The allegations put to the TRC about the people's war may have been exaggerated or incorrect. They were also sufficiently serious to merit systematic investigation.
There was as strong a prima facie case for probing the people's war theory as there was for examining the third force theory. The TRC's findings embracing the latter would carry greater weight had it shown why it dismissed the former. But, despite the voluminous evidence presented to it and without proper investigation or explanation, the commission has effectively consigned the people's war to an Orwellian 'memory hole'.
This study, in subjecting the TRC's report to careful scrutiny, has chartered new ground. Thus far, the commission's report has mostly been uncritically acclaimed. It has been hailed as having set a precedent for other countries. A more sober evaluation is needed.
The methods used by the TRC, for all the reasons described in this study, are deeply flawed.
From flawed methods flow flawed conclusions. The work of the TRC has clearly had value in allowing victims to tell their stories, and in highlighting gross violations perpetrated by the security forces, the IFP, and the PAC. Many of the 'unexplained' disappearances of those who opposed the former government are unexplained no longer. But the commission's findings, whether against these organisations or against the UDF and ANC, are too superficial to add significantly to our understanding of the past. On the contrary, they seem calculated to preclude a proper comprehension by discounting rather than exploring the impact of the people's war.
Some of the commissioners believe their methods of ascertaining 'truth' and guilt are superior to those used in criminal trials and should be incorporated into our legal system-for political offenders, at least. If they had their way, they would undermine the due process for which South Africa's bill of rights provides.
At least one commissioner believes the report should become a 'publicly sanctioned history' which 'can be taught in schools', to the exclusion of 'contradictory versions'. This, too, is an Orwellian notion, paving the way for renewed political indoctrination.
Although the TRC's founding legislation required it to generate a factual, comprehensive, and properly contextualised rendition of past conflict, the report it has produced is anything but.
The commission claims that there can be no dispute about how 'strong on truth' it has been. Dr Jeffery's meticulous study refutes this claim.
The commission also said that there could be no healing without truth, that half-truths and denial were no basis for building the new South Africa, that reconciliation based on falsehood would not last, and that selective recollection of past violence would easily provide the mobilisation for further conflict in the future. If these are its criteria for the role of truth in promoting reconciliation, it has failed to meet them.
by John Kane-Berman
South African Institute of Race Relations
[I] Foreword [II] Overview [III] Introduction [IV] Publication Of The Current TRC Report [V] The Need For Factual Evidence [VI] The Need For Comprehensive Findings [VII] The Need For Violations To Be Contextualised [VIII] The Need To Accord With Established Legal Principles [IX] Findings Based On A 'Balance Of Probabilities' [X] Appendix
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