The Truth About the Truth Commission
by Anthea Jeffery
Foreword by John Kane-Berman,
SA Inst. of Race Relations (SAIRR)
Johannesburg, 1999
by Anthea Jeffery
 |
Foreword by John Kane-Berman,
SA Inst. of Race Relations (SAIRR)
Johannesburg, 1999
II. Overview
1. INTRODUCTION
The Truth and Reconciliation Commission (TRC) was established in 1995. Its stated purpose was to foster reconciliation by revealing the truth about killings (and other gross violations of human rights) committed between March 1960 and May 1994.
The commission's founding legislation requires that the TRC provide a factual, comprehensive, and even-handed account of the gross violations committed on all sides in the conflicts of the past. It mandates the commission to identify the perpetrators of violations and hold them accountable. It also requires the TRC to place all violations in context by explaining the motives and perspectives of perpetrators as well as any 'antecedent factors' (prior provocation, for example) that might have influenced their actions.
The commission was initially expected to complete its work by June 1997. This deadline was extended to mid-1998, but the time was still not sufficient. The amnesty committee was given an indefinite period to complete its work. The remainder of the commission had until 30th October 1998 to complete a report, and was then suspended until the amnesty committee had finished its task. The commission is then to be reconvened so that it can consider the further amnesty evidence assembled and complete its final report.
In October 1998 the TRC published a 3 500-page report in five volumes. It found the former National Party (NP) government and the Inkatha Freedom Party (IFP) the principal perpetrators of gross violations. To a lesser extent, it held the African National Congress (ANC) and the former United Democratic Front (UDF) accountable for certain violations. It also found that the Pan-Africanist Congress (PAC) had primarily targeted civilians in the course of its 'protracted people's war', and was thus accountable not only for gross violations of human rights but also for violations of international humanitarian law. (See The TRC's main findings, in the Appendix.)
2. Evaluating the TRC's report
The TRC acknowledged that its success in meeting its objectives would depend as much on the content of its findings as on the methods used in reaching them. The main purpose of this study is to assess those methods. In particular, the study seeks to analyse the evidence before the commission, and the way in which this evidence was assessed.
The commission's founding legislation makes clear the criteria by which the work of the TRC is to be evaluated, notably:
- how factual was the evidence?
- how comprehensive was it?
- how objectively was it compiled and analysed?
- how well was it contextualised?
The TRC, though not a court of law, was nevertheless a statutory commission of inquiry. This meant, as it acknowledged, that it had to make 'defensible findings according to established legal principles'. It also had to make its findings on a 'balance of probabilities'-the standard of proof applicable in civil litigation. This gives rise to two further questions:
- were established legal principles applied?
- were the probabilities properly assessed?
3. The need for factual evidence
In making its findings, the TRC relied on various sources of information.
Particularly important were the statements it received from victims of gross violations, and from perpetrators seeking amnesty for their wrongdoing.
How factual were the victim statements?
The commission emphasised that it received some 21 300 victim statements, recording approximately 38 000 gross violations of human rights. It implied that it had a large, comprehensive, and reliable body of statements at its disposal on which to base its findings of accountability. This was not so.
The great majority of victim statements (some 90%, or about 19200) were not given under oath. Few, if any, statements were tested under cross-examination, for the TRC was anxious to avoid subjecting victims to this ordeal. Though the commission claimed to have corroborated all victim statements from independent sources of information, in practice it found this impossible. It therefore confined itself to a 'low level' of corroboration. Such corroboration did not encompass the identity of perpetrators. But this did not prevent the commission from using victim statements to make findings of accountability against named individuals and/or organisations.
In about 17 500 instances, deponents told the TRC of the violations experienced by others-not by themselves. Many of these statements must have been based on hearsay, rather than personal observation.
On the commission's own description of its methodology, it would be surprising if even a hundred of its 21 300 victim statements passed muster as 'factual evidence'.
How factual were the amnesty statements?
The commission also stressed the many thousands of amnesty statements it had received. Amnesty statements were potentially a better source of evidence than victim statements because they expressly qualified for cross-examination during public hearings. In reality, the weight of amnesty evidence was diminished by various factors.
Amnesty applications to the TRC totalled 7 127. However, at the time the commission compiled its report, only 102 amnesty statements had proceeded through a public hearing and had supposedly been confirmed as accurate by the granting of amnesty.
Only these 102 statements (1.4% of the total received) could properly be taken into account in making findings of accountability. The TRC nevertheless initiated what it called Operation Capture, to 'access relevant material from all the amnesty statements it received'. These included 1 239 statements that were still to proceed through public hearings. None of these amnesty statements had yet been verified, so none could properly be taken into account in making findings of accountability.
Moreover, insofar as amnesty statements implicated others (the individuals on whose alleged instruction violations were carried out), they amounted to accomplice evidence. They therefore warranted particular caution, for an accomplice knows enough to tell a story that sounds credible, even though it may falsely implicate the innocent. And an accomplice who gives evidence has an interest in saying whatever will free him from prison or other punishment. Independent verification of such evidence is commensurately vital. There is little to indicate that this was obtained by the commission.
Many amnesty statements were also flawed in other ways. They were full of hearsay allegations. And, though the commission claimed that they were all corroborated, the sources of information used for this purpose were generally inadequate.
One important amnesty statement-that of Captain Brian Mitchell (who was convicted in 1992 on 11 counts of murder arising from the Trust Feed massacre in December 1988)-abounded in contradictions and other oddities. Notwithstanding these, Capt Mitchell was granted amnesty in December 1996. He repeatedly told the amnesty panel he had not been present at the house where the massacre took place. This was accepted as true. However, the judge at his earlier trial had expressly found that Capt Mitchell had not only been present at the house but had fired the first shots into the dwelling, so initiating the massacre. No new evidence was presented to substantiate Capt Mitchell's denial of his presence at the house. One of the members of the amnesty panel was the trial judge who had found that he had been there and had accordingly given him eleven death sentences.
Capt Mitchell's amnesty statement was so full of hearsay, contradictions, and inherent improbabilities that it is hard to understand how it could have been accepted as a 'full disclosure' of the truth. If this particular statement was so flawed, it raises questions as to how many more of the 102 statements in issue were similarly unreliable.
The Trust Feed massacre also illustrates the fact that the findings of the commission were often unexplained. One of the police officers it found accountable for the killings was Sergeant Neville Rose. Yet Sgt Rose had been acquitted at the criminal trial in 1992. The commission's finding that he was an accessory to murder is not substantiated by any evidence. Neither are any reasons given for the TRC's decision.
Factual truth versus other kinds of 'truth'
According to the TRC, there are four different kinds of 'truth'. The TRC says that it took all four into account in doing its work, but ensured that its findings of accountability were based on factual truth alone. The reality is different.
The commission 'rejected the popular assumption that there are only two options to be considered when talking about truth-namely factual, objective information or subjective opinions'. Instead, it said, there is also 'personal or narrative truth', 'social or dialogue truth', and 'healing or restorative truth'.
Though the commission professed that 'factual' truth had 'featured prominently' in the making of its findings, this was not so. It did not have sufficient 'factual' truth at its disposal at the time it wrote its report. And so it fudged the nature of truth and allowed itself to use these other kinds of 'truth' to buttress its conclusions regarding culpability. By implication, it admitted that its 'truth' was neither factual nor objective.
4. The need for comprehensive findings
The commission's statutory obligation was to establish 'as complete a picture as possible' of the gross violations of the past and then to compile a report that was 'as comprehensive as possible'. The TRC report is far from comprehensive, however.
As earlier noted, the commission came to its conclusions regarding culpability when it had canvassed only a fraction of the applicable amnesty evidence. At the time it compiled its report, the TRC had heard little about violations from the ANC side of the conflict. Moreover, the killings it canvassed amounted to fewer than than half the 20 500 political fatalities that occurred from 1984 to 1994. The killings excluded from consideration (amounting to some 60% of deaths in this period alone) have yet to be explained.
Having taken into account only a tiny portion of the relevant testimony, the commission has issued a report which can only be of an interim and tentative nature-and which should clearly have been identified as such. Instead, the TRC has acquiesced in the widespread media depiction of its report as a 'final' one and indicated that it will need, at most, a 'codicil' to be appended to it in the future-once the outstanding amnesty applications have been heard.
5. The need for objective operation
The commission's focus of investigation and research appears to have been one-sided.
Its national chronology, its commissioned research, and its investigations concentrated on certain events and issues (such as the role in violence of the former State Security Council). Other events and issues meriting equal consideration were downplayed or ignored. These included a number of massacres.
Various submissions to the TRC had alleged the importance of the 'people's war' the ANC had initiated in the early 1980s to intensify its armed struggle against the then government. According to a police submission to the TRC, the people's war resulted (within an eight-year period) in some 80 500 violent incidents, in which approximately 9 200 individuals were killed and 18 000 injured. The commission made no systematic attempt to probe these allegations. In particular, it made little attempt to investigate the possible role in violence of the Politico-Military Council of the ANC. This body, allegedly responsible for implementing the people's war, was supposedly the equivalent in some respects of the former government's State Security Council-which was investigated at length for its role in violence against the ANC.
Though the TRC did take note of the people's war in its report, it did so in cursory and superficial fashion. It allocated the bulk of the blame for the violence accompanying the strategy of 'ungovernability' to the UDF. In doing so, it ignored the ties between the UDF and the ANC in the 1980s. It also failed to account for the upsurge in fatalities that took place in the early 1990s and continued after the UDF had been disbanded in August 1991. Some 9 500 people died between then and April 1994, reflecting an average monthly fatality rate of about 300. From September 1984 to February 1990 (when the bans on the ANC and other organisations had been lifted) the monthly fatality rate had averaged some 90.
6. The need for violations to be contextualised
The TRC was obliged by its founding statute to record the context in which gross violations had occurred. It was instructed to reflect the perspectives and motives of the perpetrators, as well as any antecedent factors contributing to violations.
The commission provided this contextualisation only as regards the ANC alliance. It noted the difficulties the banned ANC had faced in controlling its cadres from afar.
It elaborated on the circumstances in which its bombing operations had sometimes 'gone awry', resulting in the killing of civilians. It took note of antecedent factors, recording that such operations (a blast at an Amanzimtoti shopping centre, for example) had often been in retaliation for the former government's raids on neighbouring countries. Though it held the ANC accountable for a landmine campaign in rural areas that had caused civilian casualties, it prefaced this by pointing out that the former government had effectively encouraged such attacks by declaring border areas 'military zones'.
In describing the wrongdoing of the former government and the IFP, the TRC provided no equivalent contextualisation. It simply depicted the former government as a criminal state. Contrary to its own mandate, it gave scant regard to the government's perspective that normal legal processes were ineffective against revolutionary violence, and that law and order had to be restored to protect vulnerable civilians and provide a framework within which constitutional negotations could commence.
According to the commission, the IFP-acting as a surrogate of the former government-was responsible for repeated attacks on the ANC. This finding coincided with the ANC's perspectives. It would carry greater weight if it had been reached after the TRC had examined other perspectives, weighed them up, and then given reasons for rejecting them. But the TRC omitted even to probe the IFP's viewpoint that the ANC had declared war on all its political rivals, and especially on Inkatha. Nor did it give reasons for ignoring this perspective, let alone demonstrate why it was rejected.
7. The need to accord with established legalprinciples
The TRC acknowledged that it was obliged to make defensible findings on the basis of established legal principles. Such principles required, at minimum, that it verify its evidence, take account of all relevant information, uphold basic principles of justice (audi alteram partem included), be open and transparent in its functioning, and give reasons for its findings. These common denominators of fairness are generally acknowledged in legal systems around the world.
The commission did not do enough to uphold basic principles of justice, however. It failed to verify the evidence before it or to ensure that it took all relevant information into account. It expressed reservations about applying audi alteram partem and giving alleged perpetrators sufficient notice. It also conducted many of its investigative hearings behind closed doors, and thus shielded important parts of the evidence on which it relied from public scrutiny.
The TRC failed, moreover, to give reasons for its findings. Established legal principles require that a decision-making body such as the commission should (at minimum) canvass in full the evidence adduced, analyse its strengths and weaknesses, and explain the findings of fact thus reached. This obligation is all the stronger where findings must be based on a balance of probabilities, as described below. The TRC failed, however, to explain the basis for its conclusions.
8. Findings based on a balance of probabilities
The commission, as it acknowledged, was also obliged to make its findings of accountability on a balance of probabilities-the standard of proof applicable in civil litigation. Its task, it said (when confronted with different versions of events), was to 'decide which version was the more probable, reasonable, or likely, after taking all the available evidence into account'.
The TRC's failure to give reasons for its findings makes it difficult to assess how well it discharged this duty. In certain instances, however, the commission's findings were preceded by earlier judicial rulings. These rulings are based on evidence which was tested and substantiated, while the reasons that underpin them are fully explained. They provide a basis for comparative evaluation.
TRC findings vis-à-vis earlier judicial rulings
The commission effectively repudiated various judicial rulings without citing evidence or reasons to justify this.
Sometimes the TRC was mistaken as to basic facts, such as the number of people killed in particular incidents. At one point in its report, it said police at Sebokeng (south of Johannesburg) had shot dead 13 people in March 1990. In various other places, it put the death toll at 17, 'at least 13', and eight. Judge Richard Goldstone had earlier investigated the shootings, however, and had found that the police had killed five people.
Referring to another incident in Sebokeng, the TRC said the army shot dead 15 people there in September 1990. An earlier judicial inquest had found that the army had killed four. (The TRC seems to have based its conclusion on a simple but misdirected subtraction. The IFP, according to the same judicial inquest, had killed 38 people earlier that day in an attack on a hostel in Sebokeng. The commission said the IFP had killed 23, and then apparently attributed the balance of IFP-initiated deaths (15) to the army.)
The TRC said lone gunmen had killed 23 hostel residents of Tokoza township in September 1991. The Goldstone commission had earlier established that the death toll was 18. The TRC said 42 people died in revenge attacks in the next two days.
Goldstone had found that effective security force action had prevented further killings in the aftermath of the initial massacre.
In this instance, the TRC also misrepresented what Goldstone had said. According to the TRC, Goldstone had expressly found that this attack on hostel residents of Tokoza was initiated by a police informer, Mr Mncugi Ceba. Goldstone made no such finding. He noted that Mr Ceba was a police informer, but he never found Mr Ceba responsible for the attack. In fact, he made it clear that his commission could not and would not name any individual as culpable without sufficient supporting evidence.
The TRC ignored other aspects of Goldstone's findings on this incident. Goldstone found that a four-pronged ambush of hostel residents had been carried out by a self-defence unit (SDU) in the Phola Park informal settlement. The TRC implied that the three gunmen responsible for most of the killings were the sole attackers. It ignored evidence assembled by Goldstone that at least three units (of three men each) had been involved. The TRC, moreover, implied that the police initiated the attack to derail the peace process. Goldstone, however, had made it clear that it was the SDU that had planned and executed the ambush.
On occasion, the TRC paid no attention at all to a conflicting judicial ruling. It stated, for example, that the Shell House shootings in March 1994 of eight IFP supporters outside the ANC's headquarters had taken place in response to an IFP assault on the building. Yet an earlier judicial inquest had found that no such attack had taken place. It had also found that these allegations had been fabricated after the event to justify shootings that were entirely unwarranted. The TRC made no reference to the inquest at all.
In one key instance, the TRC cited earlier commission and court rulings but then simply repudiated them. This was as regards the Boipatong massacre in June 1992. An international policing expert brought in by Goldstone had found no evidence of police involvement. A hearing convened by Goldstone had effectively found the same, after allegations of police involvement had proved untrue. Based on the testimony of three accomplices and some 120 residents of Boipatong, a criminal court had later ruled that police had not been involved.
The TRC quoted these findings. It then proceeded to find that the police had not only planned the massacre but had taken part in it as well. It cited no fresh evidence to justify this contrary conclusion. The TRC relied, instead, on a report compiled by a monitoring organisation, which had drawn up its account within a few weeks of the massacre and on the basis of allegations which were untested (and which have since been shown to be unsubstantiated).
The TRC also commonly ignored what earlier judicial rulings had said regarding prior provocation. The IFP attack on the Sebokeng hostel in September 1990 had been found, by the inquest judge, to have been mounted in retaliation for the earlier eviction of the IFP from the hostel by ANC supporters. This, in general, was ignored by the TRC. The judge in the Boipatong trial convicted 17 IFP supporters of murder for their part in the massacre. He also found that all the accused were refugees, who had fled to the KwaMadala Hostel to escape ANC attacks on their homes and families.
This, too, was ignored in general by the TRC.
Sometimes, the TRC ignored even its own prior description of an incident. In describing the 'Battle of the Forest' outside Richmond in March 1991, it noted that 23 IFP supporters had been killed. It added that the IFP had later killed 14 ANC supporters, in the same area, in June 1991. Its sole finding, in relation to both these incidents, was that the IFP killed 23 people in June 1991.
Nor was the Battle of the Forest the only massacre thus ignored. The TRC noted, but did not examine, the massacre of 23 IFP supporters at the Crossroads settlement on the Reef in April 1992. The KwaShange massacre in 1987 was left out altogether. This massacre was similar to the Trust Feed killings, in which a policeman had collaborated with Inkatha to attack the UDF (though, in the end, it was Inkatha supporters who were killed). In the KwaShange killings, a policeman had collaborated with UDF supporters to attack Inkatha. In the massacre that ensued, 13 Inkatha members were killed. According to the trial court, they were 'methodically executed, without a shred of mercy'. These killings were not mentioned by the TRC at all.
On occasion, the TRC misrepresented both the criminal law and what had happened in the course of criminal proceedings. It implied that the legislation adopted by the former government had authorised the security forces to open fire on protesters with impunity. In fact, the relevant statute had strictly circumscribed the use of lethal force (though this did not prevent serious abuses from occurring).
What the TRC said about the trial of General Magnus Malan in 1996 was also wrong.
Contrary to the commission's assertions, extensive evidence of alleged 'hit squad' training provided by the army to Inkatha in the Caprivi was put before the trial court. (It was also found inconclusive as to the alleged 'offensive' nature of the training.) Contrary, again, to the TRC's various statements in this regard, the trial judge did not rule that the prosecution should have called additional witnesses. (The judge said he could have drawn an inference against the prosecution for failing to call witnesses who should have been able to buttress its case. But he found it unnecessary to make this inference because the state's case was, in any event, too weak to succeed.)
The TRC sometimes based extensive conclusions on minimal foundations. It found elements in the IFP and the security forces accountable for train violence on the Reef in the early 1990s, in which hundreds of people had been killed in hundreds of separate attacks. It based this conclusion on hearsay allegations regarding ten incidents. The Goldstone commission, by contrast, had considered the evidence too inconclusive to make any definite findings. Goldstone had also said, however, that there was no evidence that any organisation deliberately propagated train violence, and that it seemed to be a spillover from general township violence for which the ANC and the IFP were both responsible. The TRC ignored these statements.
The TRC's mandate, when presented with conflicting versions of events, was to weigh all the evidence available in order to decide which version was the most probable, reasonable, or likely. In these various instances-where its findings can be compared with earlier judicial rulings-the TRC ignored this obligation. It did not explain why these earlier rulings were wrong. It did not explain why its contrary findings were right. It simply ignored or tacitly repudiated certain rulings.
By its own admission, moreover, only some of its decisions could be 'corroborated'. Others, it explained, were 'value-laden and could be defended only as value judgements by people of integrity'. Findings of accountability for killings require a less tenuous foundation.
Despite its errors, self-contradictions, and omissions, the TRC clearly believed itself and its methods better at ascertaining the truth than ordinary judicial process. The chairman of the commission, the Most Reverend Desmond Tutu, a former archbishop of Cape Town, put it thus: 'The commission can claim, without fear of being contradicted, that it has contributed more to uncovering the truth about the past than all the court cases in the history of apartheid.' As described below, this viewpoint has potential ramifications for the rule of law.
9. Implications of the TRC for the rule of law
In addition to believing itself better than the courts at discovering the truth, the TRC criticised criminal trials on various grounds. They involved too great an expenditure of time and money. They took many years to complete. They necessitated 'large teams of skilled and highly competent investigators'. Most serious of all, they required proof beyond a reasonable doubt. They could therefore result in the acquittal of people, such as General Magnus Malan, who were widely believed to be guilty.
Proof beyond a reasonable doubt could be too difficult to marshall, the TRC continued. This was especially so as regards 'political crimes'. Crimes of this kind were committed by 'highly skilled' people, 'trained in the art of concealing their crimes'. Relevant records were often missing, while witnesses were 'unknown, dead, unavailable, or unwilling'. In circumstances such as these, 'all that effectively remained was the truth of wounded memories of loved ones sharing instinctive suspicions, deep and traumatising to the survivors but otherwise incapable of translating themselves into objective and corroborative evidence which could survive the rigours of the law'. The result, concluded the TRC, was that 'judicial inquires into politically sensitive matters rarely satisfied the need for truth and closure'.
The rule of law would be undermined, however, by a judicial process that dispensed with the need for the corroboration and substantiation of evidence, and was content to rest upon such things as 'instinctive suspicions'. The 'rigours of the law' criticised by the TRC may be difficult to satisfy at times-but they are crucial to due process, basic principles of fairness, and the protection of the innocent.
The commission emphasised the 'urgent need to re-evaluate the nature of the judiciary', so as to help transform South African society into a 'more caring, humane, and just one'. It also criticised judges for failing to appear before it to account for their conduct and their rulings under the former government. Such an appearance, said the commission, would have given the TRC 'the opportunity to engage in debate with judges on how the administration of justice could adapt to fulfil the tasks demanded of it in the new legal system'. Its intention, it continued, was not to 'dictate to the judges or bind them in the future' but to emphasise the need for change.
Whether change is needed now is doubtful. The rule of law was severely undermined by the former government, which reversed the normal onus of proof for certain 'political' offences and empowered the state to ban and detain political opponents. The new constitution expressly restores due process. It incorporates guarantees of fairness and entrenches them against erosion by the legislature and executive. The commission seems to misunderstand the present legal order and the major gains that it reflects.
What kind of change would the commission want? It does not say, but its own methodology would suggest a system-for politically motivated crimes, at least-in which:
- witnesses are encouraged to tell their own stories (or those of others), while their testimony is accepted at face value without cross-examination, proper corroboration, or exclusion of hearsay allegations;
- 'the truth of wounded memories' and 'instinctive suspicions' are regarded as sufficient proof of culpability and are no longer betrayed by the 'rigours of the law' and its technical rules of evidence;
- the standard of proof is lowered so that individuals who are widely believed to be wrongdoers cannot escape conviction;
- hearings can be held in camera;
- rulings can be made without citing the evidence or the reasoning underlying them; and
- conclusions can be based on 'dialogue' or other novel forms of 'truth'-and, in the final analysis, on 'the value judgements of people of integrity'.
Mr Dumisa Ntsebeza, the erstwhile head of the commission's Investigating Unit, has been appointed as an acting judge on the Cape bench. He believes 'there is much the judiciary can learn from the TRC process'. He hopes, moreover, that 'the legacy of the TRC will find its way into the criminal justice system'. Two further commissioners, Ms Sisi Khampepe and Mr Denzil Potgieter, have been appointed acting judges for the duration of the amnesty process and are then to assume senior positions within the National Directorate of Public Prosecutions. If former commissioners continue to be appointed as judges or to other senior positions in the criminal justice system, this could promote the adoption of a 'TRC-type' approach in which, inter alia, guilt would be determined more by public perceptions than by due process and in which the requirement of proof beyond reasonable doubt would be dispensed with.
The commission also advocated changes to the prosecution of criminal trials. In particular, it urged that 'specialist prosecutorial task teams be established to address political violence'. This was necessary, it said, because 'the work of special investigative teams, for example, the investigative task unit in KwaZulu-Natal, was nullified if the results of investigations were not appropriately pursued in the prosecutorial phase'.
This recommendation also seems to have stemmed from the acquittal of Gen Malan-an outcome which was widely blamed on the alleged failure of the prosecution to call sufficient witnesses. The state's case against Gen Malan was, however, deeply flawed and it is doubtful whether calling more witnesses would have cured its defects. It was not the prosecution, moreover, which came in for criticism from the trial judge.
A special investigation task unit (ITU) had been responsible for assembling the evidence against the accused. It was this unit that was implicitly censured by the court. The judge noted that the computer 'cut and paste' method the ITU had used to transfer portions of one witness's statement to another could readily lead to contamination of evidence. There was 'a lingering suspicion' that a KwaMakhutha resident had been 'inveigled' into giving testimony that supported the state's case.
Defence allegations that witnesses had been coached had, disturbingly, been well illustrated. In addition, evidence presented by the ITU on an important issue had been 'misleading and probably deliberately so'.
Special investigative units which act in this way are to be eschewed, not advocated.
This is arguably the most important lesson to be learned from the trial of Gen Malan-and yet it is ignored by the TRC. Instead the commission implicitly endorsed the work of the ITU in KwaZulu-Natal and indicated that the problem lay rather in inadequate prosecution. Hence its proposal that 'specialist prosecutorial task teams' be established.
Should a TRC-type approach be adopted in due course, the implications for the rule of law would be grave. Any such development lies, however, in the future. For the present, the key question is whether the commission has fulfilled its objectives of telling the truth about past conflict, and thus promoting reconciliation.
10. How much closer to the truth?
The importance of truth in promoting reconciliation is frequently acknowledged by the TRC. 'There can be no healing without truth,' said Archbishop Tutu in his foreword. The TRC's role, added the rest of the commission, was to 'uncover the truth about past abuses' as part of 'the struggle of memory against forgetting'.
This struggle, the TRC continued, had to be inclusive to have value. It had to 'recognise that narrow memories of past conflicts could too easily provide the mobilisation for further conflicts'. It had to 'overcome the temptation to remember in a partisan, selective way'. It had to acknowledge that 'an inclusive remembering of painful truths was crucial to the creation of national unity and to transcending the divisions of the past'.
Truth, concluded the commission, provides the only solid basis for reconciliation. 'There can be no genuine, lasting reconciliation without truth,' it stated. 'Certainly, lies, half-truths and denial are not a desirable foundation on which to build the new South Africa.' 'Reconciliation based on falsehood, on not facing up to reality, is not true reconciliation and will not last,' added Archbishop Tutu.
The commission was thus keenly aware of the importance of truth as a vital (if insufficient) basis for reconciliation. It implied that its report had succeeded in excluding 'lies, half-truths, and denial'. It intimated that it had faced up to reality in full, and that its report reflected a comprehensive and impartial record of the conflicts of the past. The TRC asserted too that it had 'provided enough of the truth about our past for there to be a consensus about it'. Indeed, it continued, there could be little dispute about how 'strong on truth' it had been.
These claims are questionable, at best. There is little reason to believe that the commission has discovered and reflected 'the truth' about the Seboking shootings of March and September 1990, the Richmond massacres in early 1991, the deaths in Tokoza in September 1991, the Boipatong massacre in 1992, the Shell House shootings in 1994, or the train violence on the Reef in the early 1990s. On the contrary, in each of these instances (and in others besides), the TRC has obscured rather than revealed the truth.
In fact, what the commission has done is to focus on only half the story-and to tell that half in a selective and distorted way. Some important insights into security force violations have, of course, arisen from its work. It has cast significant light on various security force outrages and atrocities. It has confirmed suspicions that torture in detention was widespread, that it frequently resulted in the deaths of the government's political opponents, and that it was effectively condoned and even endorsed. It has revealed the fate of many activists who simply disappeared-and who are now known to have died at the hands of the former police and army.
The commission has rightly castigated the former government for the methods of 'counter-revolution' it employed. The TRC has failed, however, to describe the revolution against which these methods were invoked. Nor could the TRC claim it had no evidence about this people's war. Detailed allegations were put to it, often citing the published utterances of the ANC itself. These accusations merited an equal vigour in investigation as those against the former government. If, thereafter, the TRC concluded that the allegations against the ANC were unfounded, it needed to explain why this was so.
A similar phenomenon is evident as regards the IFP. Killings perpetrated by its supporters are rightly condemned by the commission. But, again, the other side of the equation remains to be addressed. A lengthy IFP submission to the TRC alleged that the ANC had encouraged attacks against Inkatha-and that thousands of IFP leaders and supporters had died in the violence that then ensued. These allegations merited a full investigation, and a full explanation of any reasons for rejecting them. Neither is evident from the TRC's report.
The current report is not a final one, as the commission's founding legislation makes clear. A final report is yet awaited, and is to be issued after all the amnesty evidence has been heard. There is little reason to believe, however, that the final document will remedy the defects in the present one. They go too deep. And the commission has shown little sign of being willing to rectify its methodology-or to examine the issues it has thus far omitted or downplayed.
[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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