Truth About the Truth Commission: [VII] The Need For Violations To Be Contextualised

The Truth About the Truth Commission

by Anthea Jeffery



Foreword by John Kane-Berman,
SA Inst. of Race Relations (SAIRR)
Johannesburg, 1999

1. Foreword
   
2. Overview
   
3. Introduction
   
4. Publication Of The Current TRC Report
   
5. The Need For Factual Evidence
   
6. The Need For Comprehensive Findings
   
7. The Need For Violations To Be Contextualised
   
8. The Need To Accord With Established Legal Principles
   
9. Findings Based On A 'Balance Of Probabilities'
   
10. Appendix

VII. The Need For Violations To Be Contextualised


One of the obligations resting on the TRC under its founding legislation was to contextualise, in full, the gross violations committed in the past. It was obliged to ascertain and to report 'the antecedents, circumstances, factors, context, motives, and perspectives which had led to such violations'. In keeping with its mandate to be even-handed, it was enjoined, moreover, to provide such an analysis on an equal basis and in relation to all those involved in the conflicts of the past.

Whether the commission endorsed or agreed with the perspectives of the protagonists was irrelevant. Its obligation was to look inside their minds, to ascertain their motives and their viewpoints-and to record these without fear or favour.

The TRC seems to have taken full account of the viewpoint of the ANC, but to have ignored, in general, the perspectives of the former government and the IFP.

An example may serve to illustrate the point. The final volume of the TRC's report summarises the main findings of the commission. The TRC's finding against the former government-described by the commission as its 'primary' finding-is briefly stated:

The predominant portion of gross violations of human rights was committed by the former state through its security and law-enforcement agencies.

Moreover, the South African state in the period from the late 1970s to the early 1990s became involved in activities of a criminal nature when, among other things, it knowingly planned, undertook, condoned, and covered up the commission of unlawful acts, including the extra-judicial killings of political opponents and others, inside and outside South Africa.

Two of the commission's findings against the ANC are as follows:

In the course of the armed struggle there were instances where members of MK conducted unplanned military operations using their own discretion and, without adequate control and supervision at an operational level, determined targets for attack outside of official policy guidelines. While recognising that such operations were frequently undertaken in retaliation for raids by the former South African government into neighbouring countries, such unplanned operations nonetheless often resulted in civilian injury and loss of life, amounting to gross violations of human rights. The 1985 Amanzimtoti shopping centre bombing is regarded by the commission in this light.

In the course of the armed struggle the ANC, through MK, planned and undertook military operations which, though intended for military or security force targets, sometimes went awry for a variety of reasons, including poor intelligence and reconnaisance. The consequences in these cases, such as the Magoo's Bar and Durban Esplanade bombings, were gross violations of human rights in respect of the injuries to and loss of lives of civilians.

In the case of the ANC, a significant effort seems to have been made to place what 'went awry' in a broader context which serves largely to exonerate the ANC from full responsibility for wrongdoing. In the case of the former government, no reference is made to the context in which 'extra-judicial' killings had occurred.

The former government, moreover, is assumed to have intended all the extra-judicial killings that took place at the hands of the security forces-for it is found to have 'knowingly' planned, undertaken, or condoned them. In the case of the ANC, by contrast, the civilian deaths that occurred through its activities are assumed to have been unplanned-and to have arisen primarily because things 'went wrong' from time to time. This may have been the case, but the commission could not have known it for certain without the detailed and systematic examination of the 'people's war' which it failed to undertake. Nor does the TRC consider that the position might even have been the reverse. Violence against civilians from the ANC side might have been deliberate, as part of the people's war. And violence against ANC/UDF leaders and supporters might also have arisen because security force endeavours to contain the mounting unrest 'went awry' on various occasions.

In the government's perspective-which the commission failed adequately to note-the ANC alliance had initiated a people's war, the SACP was playing an important role in this, and the situation was exacerbated by the presence of Cuban troops in Angola.

These factors had necessitated the development of a National Management System, with both security and welfare elements. The primary aim of this system was to ensure that 'all branches of government responded in a co-ordinated manner to the revolutionary threat'. This threat could not be countered 'effectively by military or security action'. Indeed, the 'main accent had to fall on the provision of effective government and social services and on promoting inclusive constitutional solutions'. Emergency rule nevertheless had to be introduced in 1986 because 'orderly constitutional transformation could not take place in a climate of general violence and insurrection'. Such rule also succeeded, by 1988, in re-establishing 'some degree of normality in most black residential areas' and thus paved the way for 'genuine and workable negotiations'. But it also suspended many normal legal principles and 'created circumstances and an atmosphere' conducive to abuses.

In the viewpoint put forward by the government, the revolutionary strategies adopted by its opponents blurred 'traditional distinctions between combatants and non-combatants, between legitimate and illegitimate targets, and between acceptable and unacceptable methods. The normal processes of law-and even the government's tough security measures-seemed incapable of dealing with the situation. Members of the security forces watched, with increasing frustration, while revolutionary movements organised, mobilised and intimidated or killed their opponents, seemingly at will.

The security forces were expected to play by the rules while their opponents could, and did, use any methods they liked. There was a need for unconventional counter-strategies of the kind developed by the British and others in successful campaigns against insurgency and terrorism. Consequently, the government began to make use of such strategies which, of necessity, had to be planned and implemented on a "need to know" basis'.

The 'unconventional actions' that were approved by the cabinet and the SSC included 'information gathering, disinformation, and assistance to outside organisations opposed to revolutionary violence'. They excluded extra-judicial killings, torture, rape, and assault. Abuses nevertheless occurred, and did so in a variety of situations. Some security force members acted bona fides, but their understanding was 'clouded by bad judgement, over-zealousness, or negligence'.

Others acted male fides-probably because they opposed the transition process-and thus became guilty of 'malpractices, and serious violations of human rights'.

According to the NP submission, the former government made every effort to prevent abuses from occurring. It did so especially during Mr de Klerk's presidency, when allegations of a 'third-force' role in violence were persistently made. Mr de Klerk thus phased out a number of secret and covert operations of the security forces; gave express instructions to senior officers that the police and army were to act impartially at all times; terminated the National Security Management System; and instigated various inquiries into alleged 'third-force' activities, including the Harms and Goldstone commissions. The Goldstone commission was instrumental in uncovering a number of abuses, but also found no clear evidence of 'third-force' responsibility for political violence. In many instances, the government was not aware of the abuses that were taking place-for those security force members who engaged in such conduct (probably because of their opposition to transition) did not, for obvious reasons, inform their superiors of what they had been (or were still) doing. However, 'whenever credible allegations of human rights abuses' emerged, these were investigated in order to bring them to an end and, where possible, to found criminal prosecutions against their perpetrators.

The TRC may not have agreed with the NP's perspective. It may also have believed this an insufficient explanation of extra-judicial killings perpetrated by the former security forces from the 1960s on. Its statutory obligation was nevertheless clear. It was mandated to take the NP's viewpoint into full account. Instead, the commission failed even to record it, let alone to discuss it and give reasons for rejecting it.

Mr Malan, in his minority report, took issue with the way the commission had contextualised the NP's role in violence. The TRC, stated Mr Malan, seemed to assume that the context surrounding the extra-judicial killings laid at the NP's door was 'a grand conspiracy of all members of government and senior bureaucrats' to engage in criminal conduct. According to Mr Malan, such a conspiracy was not plausible in the 1980s-and became even less so after Mr de Klerk had assumed the presidency, lifted the bans on the ANC and other organisations, and embarked on negotiations for a constitution based on universal franchise. The true context was far more likely to have been that 'some measure of licence was given to or assumed by some within security and intelligence agencies' to embark on assassinations and other illegal activities. This was then covered up by some politicians and senior officials within the former government. The full extent of the cover up, added Mr Malan, was never adequately addressed by the commission. There were various reasons for this omission, in his view. One was that the TRC, subconsciously at least, may have prejudged the issue through its 'dominant perception' of the former government as a 'criminal state'. It therefore saw no need for further investigation or analysis.

In contextualising past violations, the commission further took the view that 'racism was a central ideological ingredient at the core of the political struggle'. In one sense, this is obviously correct. Racism, or perhaps more accurately, the determination of the NP to maintain white supremacist rule over the entire country except the homelands, lay at the heart of the whole apartheid system and also of opposition to that system. The Institute has documented this in great detail over seven decades. Its chief executive, Mr John Kane-Berman, also summarised the pervasive impact of race discrimination in 1974 when he wrote:

Discrimination is at the very heart of our society. It governs every facet of our lives from the cradle to the grave-and even beyond, since even our cemeteries are racially segregated. It is enforced where we live, where we work, where we play, where we learn, where we go when sick, and on the transport we use.

Not only does government condone it; it systematically pursues it, preaches it, practises it, and enforces it. It is enshrined in our constitution, written into our laws, and enforced by our courts.

In time, however, race discrimination began to crumble. By the late 1970s and early 1980s, a 'silent revolution' was well under way. Millions of ordinary South Africans of every race, by harnessing their labour and consumer power as well as their entrepreneurial skills and endeavours, had caused apartheid laws to become increasingly unworkable. From 1985 to 1993, in particular, the NP government began steadily to repeal apartheid legislation to bring the statute book into line with these underlying socio-economic realities. In 1990, moreover, the bans on the ANC and other political organisations were also lifted. In 1992, the white electorate voted (by a 68% majority) to continue constitutional negotiations that would inevitably result in the loss of white political power.

The first upsurge in political violence took place-not when apartheid was at its height (in the period from the 1950s to the 1970s)-but in the second half of the 1980s, when the impact of the silent revolution was already clear and it was evident that apartheid was disintegrating. The second, and even larger upturn in such violence, took place in the early 1990s-after Mr Mandela had been released from prison, and after the ANC and other organisations had been legalised. It was this final ten-year period, from 1984 to 1994, that witnessed at least 20 500 political killings-more than had been recorded in the whole history of NP rule over 36 years.

Racism might well have been a defining feature of white conduct prior to the 1980s, but it was not the only factor after 1984, when fatalities began rapidly to escalate.Racism alone provides no adequate explanation, furthermore, for the 10 500 or more political fatalities that occurred, also after 1984, in the course of the low-key civil war between the ANC and the IFP in KwaZulu and Natal.

[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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