(Does the Constitution of South Africa adequately address human rights concerns, is amnesty ever appropriate when confronting genocide and crimes against humanity and how would you assess the work of the Truth and Reconciliation Commission)
Introduction
The adoption of the Rome Statute of the International Criminal Court in 1998[1] signaled a positive development in international criminal law and the fight against impunity in relation to the crime of genocide, crimes against humanity, war crimes, and the crime of aggression.[2]
However, geopolitical interests of states and considerations of peace building and security, especially in societies emerging from conflict, continue to influence debates and decisions pertaining to the nature and quality of justice victims of gross human rights violations receive and how perpetrators of these violations are dealt with. Recent developments following the post-election violence in Kenya, the indictment of the President of Sudan and conditions for peace in the on-going conflict in Uganda are examples of these on-going challenges.[3] These considerations will once more play themselves out in response to the conduct of the deposed presidents of Egypt and Tunisia and the current Libyan regime once removed from power.
The South African transition to democracy and human rights in 1994, which entailed the granting of amnesty for perpetrators of gross human rights through its Truth and Reconciliation Commission[4] for purposes of nation building and reconciliation, is a well known example in this regard. This is notwithstanding the fact that international criminal law regarded the system of apartheid as crime against humanity[5] and required states to prosecute those behind the apartheid regime, and organizations, institutions and individuals that supported, encouraged and co-operated with it.[6] In justifying this approach which could be seen as encouraging impunity for international crimes, the epilogue of the South African 1993 Constitution provided, in part:
“ The pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society…..In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of conflicts of the past.”[7]
The South African Constitutional Court in support of the Truth Commission legislation against an attack for being unconstitutional and contrary to international criminal law said:[8]
“It was wisely appreciated by those involved in the preceding negotiations that the task of building such a new democratic order was a very difficult task because of the previous history and the deep emotions and indefensible inequities it had generated; and that this could not be achieved without a firm and generous commitment to reconciliation and national unity. It was realized that much of the unjust consequences of the past could not ever be fully reversed. It might be necessary in crucial areas to close the book on that past.”
The question today, and what this paper/presentation seeks to address in the context of the transitional justice challenges and implications thereof to the fight against impunity towards crimes against humanity, is whether the South African post-apartheid Truth and Reconciliation Commission process has been successful and effective in its work and objectives, including the appropriateness of granting amnesty to perpetrators of crimes against humanity. The paper will also look into whether the current South African constitutional arrangements pertaining to the promotion and protection of human rights provides sufficient guarantees to prevent the country from ‘backsliding’ to the old order of tyranny, oppression and gross violations of human rights.
The Truth and Reconciliation Process: Successes, Failures and Lessons Learnt
Successes
For societies or nations that have come out of conflict, be it on the basis of political, social or economic consideration or a combination of these, that are prepared to re-built their communities torn apart and plundered by such conflict and are committed in moving forward and working towards a peaceful and prosperous order; it is important that the causes of such conflict are looked into and addressed; that there is an acknowledgment of the harm caused to the victims by those responsible; and that there is some form of justice and or reparations to the victims. For such societies, truth and reconciliation commissions through their processes of acknowledging past wrongs, provision of reparations for such wrongs and the granting of amnesty for perpetrators in some instances, are a crucial component in this regard.[9]
The South African Truth and Reconciliation Commission came into operation on 1 December 1995. The purpose of the Truth and Reconciliation Commission in terms of its enabling legislation was to:
- promote national unity and reconciliation in a spirit of understanding which transcends the conflicts and divisions of the past[10]
- establish as complete a picture as possible of the causes, nature and extent of the gross violations of human rights which were committed during the period from 1 March 1960 to the cut-off date, including the antecedents, circumstances, factors and context of such violations, as well as the perspectives of the victims and the motives and perspectives of the persons responsible for the commission of the violations, by conducting investigations and holding hearings;
- facilitate the granting of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with a political objective and comply with the requirements of this Act;
- establish and make known the fate or whereabouts of victims and restore the human and civil dignity of such victims by granting them an opportunity to relate their own accounts of the violations of which they are the victims, and by recommending reparation measures in respect of them;[11]
- compile a report providing as comprehensive an account as possible of the activities and findings of the Commission contemplated in paragraphs (a), (b) and (c), and which contains recommendations of measures to prevent the future violations of human rights.
The Truth and Reconciliation Commission winded up its business and its final report was submitted to the President in July 2002.[12] During its work, the TRC received statements from over 21 000 victims making over 38 000 allegations of serious human crimes of which 10 000 were killings.[13] The Amnesty Committee received over 7000 amnesty applications and granted 849 of these while rejecting 5 392 and 21 000 victims received ‘a modest on-time payment.[14]
The TRC has largely met its objectives as per the enabling legislation, the Promotion of National Unity and Reconciliation, and has made a significant contribution by laying the foundations for ‘reconciliation and reconstruction’[15] and thus helping in the realization of the inspirational provisions of the epilogue of the 1993 Constitution for the building of a ‘historic bridge between the past of a deeply divided society’ and ‘a future founded on the recognition of human rights, democracy and peaceful co-existence’. South Africa has, through the contribution of the TRC process in part, become more stable, more peaceful and more democratic – the country did not break out into massive racial conflict some people expected.
The TRC process is regarded as the only one that ‘explicitly connected truth with the reconciliation of lifelong enemies [and] truth and exoneration’,[16] while its full disclosure requirement for amnesty ‘provided as semblance of accountability’[17] and the apology made by many perpetrators and the acceptance thereof promoted reconciliation.
Failures/Challenges
Despite the many successes of the Truth and Reconciliation Commission and its international claim, there have been several weaknesses and failures/challenges that impacted on the work of the Commission and its achievements. Some of the challenges or weaknesses are around the issues of reconciliation and limited involvement of white South Africans,[18] the inadequate co-operation with the TRC process by the apartheid regime, especially the National Party and former apartheid President PW Botha, the Inkatha Freedom Party of Dr Buthelezi, and the ANC to some extent and the narrow mandate of the TRC which did not extent to economic exploitation.[19] The inadequate steps in prosecuting many of the perpetrators of cross human rights violations whose applications for amnesty were noted granted (5 392) is another weakness of the process, so is the delay in the payment of reparations and the failure to implement some of the TRC recommendations.[20] The TRC report has also been criticized in some quarters for not providing a complete report/picture of gross human rights violations for a number of reasons, such as the lack of objectivity by the Amnesty Committee and taking a very narrow approach to the enabling provisions of the legislation. [21]
The granting of amnesty itself, while supported by the South African Constitutional Court, has been challenged by others, including Amnesty International which said in its report: [22]
“The amnesty process of the South African TRC is considered to be unacceptable under international law. Noting that “de facto impunity persists regarding persons responsible for acts of torture during apartheid and the compensation has not yet been given to all the victims,” the Committee against Torture recommended that South Africa combat impunity by considering prosecutions as well as other methods of accountability and grant adequate compensation to all victims.”
Reparations
For many victims of apartheid and colonialism, the national unity and reconciliation process has not brought much joy, especially on the issue of delays in the payment of reparations.
While a majority of the black elite has definitely benefited from post-apartheid South Africa in terms of jobs members of this group hold in government and in the corporate world and through the so-called black empowerment deals, the majority of the not so-fortunate South Africans have yet to experience the so-called miracle of South Africa and the fruits of the so-called rainbow nation-there is definitely no pot of gold at the end of the rainbow for them-in particular, those who have patiently been waiting for the promised reparations through the TRC process.
To these many South Africans still waiting for the promised reparations, one wonders whether there can be meaningful justice and reconciliation for them, while the perpetrators of crimes against humanity have literally walked scot-free after being granted amnesty and while the many corporations that benefited financially under apartheid continue to operate and benefit in the new South Africa. What does the delay in addressing the issue of reparations mean for true reconciliation in our country? What about the notion of justice? – the healing of the divisions of the past and establishing a society based on social justice are some of the founding values of our 1996 Constitution and are enshrined in the Preamble of this Constitution. Why is the government appearing to dragging its feet on this issue?
On the issue of reparations, Adv Dumisa Ntsebeza, a former Commissioner of the TRC wrote:[23]
“In the context of the Truth & Reconciliation Commission, the question of reparations has reached the sticking point because our government seems to prevaricate on the need for it to meet the recommendations of the TRC as far as reparations are concerned. It is a sad state of affairs: a democratic government that was behind the establishment of the TRC in the first place, seems to be unwilling to make reparations, pursuant to the TRC’s recommendations. The TRC recommended that those victims identified by the process, be compensated to a maximum amount of R3 billion. This has not been done, yet the same government has been prepared to mortgage our country’s future for what now appears to be a R50 billion arms deal to foreign institutions for what clearly appear to be dubious gains.
It is a sad reflection of our times that while our government continues to blow hot and cold as to whether those identified victims of apartheid will receive their reparations, the TRC process has granted amnesty to a number of applicants, some of whom were guilty of the most heinous crimes. At the same time, prominent businessmen have supported the non-payment of reparations. One of them noted that such payments would be ‘a waste of time’. As a consequence, the impression has been created that the TRC process has actually been lenient towards perpetrators and has been disrespectful of, and unkind to, victims and survivors.”
In view of the above, how do we address this unfinished business of reparations injustice in order to truly open a new chapter in the history of our country as provided by the Postamble of the 1993 Constitution-or is it the case of a ‘historic bridge leading to nowhere, like the one not far from Parliament in Cape Town?
Government eventually made reparation payments to about 21 000 victims thought the amounts were said to be far lower than what was recommended by the TRC.[24]
Narrow Approach of the Truth and Reconciliation Commission which did not adequately address economic injustice and resultant inequalities
It should be pointed out that while providing for reparations, the Promotion of National Unity and Reconciliation Act No 3 of 1995 and the TRC, ipso jure, took a very narrow approach to the issues of human rights violations-the basis for reparations. Cross human rights violations in the Act, which is the basis of all the interventions under the Act, including reparations, are defined as:[25]
“ the violation of human rights through—
(a) the killing, abduction, torture or severe ill-treatment of any person; or
(b) any attempt, conspiracy, incitement, instigation, command or procurement to commit an act referred to in paragraph (a),which emanated from conflicts of the past and which was committed during the period l March 1960 to the cut-off date within or outside the Republic, and the commission of which was carried out, advised, planned, directed, commanded or ordered, by any person acting with a political motive;”
This definition leaves out many other victims of the crime of apartheid-a crime against humanity under international human rights law. The narrow interpretation could have been influenced by financial constraints that the government has to meet in terms of the TRC legislation or other considerations best known by government and those responsible for the enactment of the legislation. However, what about other victims and how does this augur for true reconciliation in our country and what does this mean to the nation sense of justice, when the beneficiaries of this evil system, especially big business continues to benefit from the ill-gotten gains. In any case, the TRC legislation has intentionally narrowed and confined the ‘need for reparation’ provided for in the Preamble of the 1993 Constitution and thus created an escape clause for big business which played a significant role in propping up the apartheid regime and tremendously benefited from such support and association. The Truth and Reconciliation Commission could have given a wider definition to cross violation of human rights under the Act itself in view of a proper understanding that apartheid was-largely an economic system intended to exploit black people for the benefit of white people. However, the TRC failed, maybe due to conceptual reasons or even ideological reasons, but again, it’s only the TRC members who know. In this regard, Dumisa Ntsebensa wrote:[26]
“One aspect of the unfinished business of the TRC is the extent to which it failed to seize the moment, to promote reconciliation not only between perpetrator and victim, but also between beneficiaries (mostly white people) and victims (mostly black people).
Although the TRC held institutional hearings, we failed, it seems to me, to interrogate the role of big business, of the transnational companies, for their part in sustaining and perpetuating the apartheid order. We did not set out to find the evidence that would have been supportive of a recommendation that the transnational companies, and the imperialist countries from whence they come, owe to the victims of South Africa (mostly black people), a duty to give reparations. It should not have been a duty of a government alone to provide reparations, even if this is what the statute provided.
I think a case can be made that those who created an environment of ‘gross human rights abuses’ in South Africa, amongst them internally and externally based transnational companies, and the countries that supported them, are liable for the reconstruction of South African society. In a programme of reconstruction and development, reparations should include reparations that should be paid by big business both in and outside of South Africa. That also continues to remain the unfinished business of the TRC.”
It is important to note that reparations for victims of human rights violations is a constitutional requirement in South Africa in terms of the Postamble of the 1993 Constitution and a necessary condition for the advancement of national unit, reconciliation and reconstruction. Reconciliation is also a right under international human rights law and a requirement of justice under any civilized legal system.
It is sad and unfortunate that out of political expediency and other factors not explained or clearly articulated to the public and the victims of apartheid in a particular, the post-apartheid government seems to have dragged its feet on this issue while the expectations of the victims for reparations remain unfulfilled and dashed for some.
It is also unfortunate that apart from one ngo, Khulumani Support Group, not many organs of civil society, ngos included, have taken up this issue. The South African Human Rights Commission did also not actively take up this matter due to its mandate dealing with human rights violations which took place after 1994.
While it is acknowledged and appreciated that a few thousands rands will not be a magic wand that will magically make solve our problems by making them disappear and that the effects of apartheid will not be addressed overnight, there could be no proper justice if the effects of apartheid are not meaningfully addressed for the majority of the exploited and oppressed masses of our country-full reparations or the benefits of the new South Africa cannot be a preserve of the few-the black elite and the majority of white people in our country.
As a result of not adequately addressing economic injustices, our country, 15 years into our democracy faces many of challenges, especially for millions of our people. Despite many achievements over the years, such as the much talked about economic growth, millions of our people, especially African people continue to live under abject poverty. The State’s own report, Towards A Fifteen Year Review, while pointing to a “six to seven” percentage reduction in income poverty amongst African people, acknowledges that African people continue to account for a “disproportionate share of poverty.” According to the report, while African people made 77% of the population in 1995 and 79% in 2005,” they accounted for in both years for “93% of those living on less than R322 a month.”[27] This is a time-bomb waiting to explode.
A more worrying development is the increasing gap between the rich and the poor over the last 14 years. According to the state’s Towards A Fifteen Year Review report, “[n]ational income inequality as measured by the Gini coefficient increased from 0.64 to 0.69 between 1995 and 2005 and continued to do so from 2006 to 2007.”[28] With the exception of about seven countries, that have higher Gini coefficient rates, South Africa is one of the most unequal countries in the world.[29]
On the impact of income inequalities at a global level, David Rothkopf, in his book, the Superclass: The Global Power Elite and the World they are Making, said:
“The reality is that the combined net worth of the world’s richest thousand or so people – the planet’s billionaires – is almost twice that of the poorest 2.5 billion. The human race may have made great progress over the centuries, but such disparities are an indictment of our civilization. And, I believe, they are a threat to its stability.”[30]
The income inequality and other forms of inequalities in South Africa manifest themselves along racial and gender lines. In the context of South Africa’s history and the current global food and financial crises, these challenges constitute a serious threat to social cohesion and stability of the country[31] and inform, to some extent, many of our current political, economic and social challenges.
Racial Reconciliation at a Micro-level
Mainly due to the resultant imbalances in wealth, while South Africa has managed to achieve racial reconciliation at a macro-level (group level) amongst its people in that there are no widespread violent racial conflicts, racial reconciliation at a micro-level (individual level) has proven to be generally elusive. South Africa continues to be largely a divided nation in terms of race at a residential level, sporting level and education level.
The majority of black people continue to live in their former black spots and the majority of white South African continue to live in their leafy suburbs with a sprinkling of the black minority elites moving into suburbs and former white schools and joining former white clubs and gyms as a minority and thus with limited influences in the necessary transformation of our society.
15 years into our country, soccer, an internationally sport which has huge following in Europe is largely a black sport with very little support from white South Africans who focus more on rugby and cricket which are generally seen as a bastion of white supremacy and domination. The racial make- up of our national soccer, rugby and cricket teams attest to this challenge very well.
Reconciliation: Culture, Religion and Language
The culture of African/black people in South Africa and their relevant institutions were disparaged and marginalized and were regarded as backwards and uncivilized by white people in general.
While African culture is now recognized and most African languages have been accorded official language status in the new South Africa, the reality, 15 years into our democracy is that African culture and languages are still regarded as backwards and that white languages and culture continue to dominant the cultural landscape of our country. There is thus very little reconciliation in this regard and the Truth and Reconciliation Commission and process has not done very well in this regard.
Psychological impacts
It is also important to address as a matter of urgency, the psychological impacts of oppression and exploitation that continue to manifest themselves in many ways such as crime, lack of true patriotism, low self-esteem and an inferiority complex amongst many of our people. The advancement of true national unity and reconciliation requires that these issues be addressed and these issues were not adequately addressed by the Truth and Reconciliation Commission. The very high levels of crime in our country that continue to ravage our people and society and particularly poor black South Africans in our townships and informal settlements are to a large extent a legacy of our dark and racist past.
Impunity
Limited prosecutions against named 5 392 perpetrators of gross human rights violations whose applications for amnesty were not granted by the Amnesty Committee of the TRC has been a cause of concern.[32] In response to this state of affairs, the UN Committee Against Torture said:
“[T]he Committee notes that de facto impunity persist regarding persons responsible for acts of torture during apartheid…..The State Party should consider bringing to justice persons responsible for the institutionalization of torture as an instrument of oppression to perpetuate apartheid….The State party should also consider other methods of accountability for acts of torture committed under the apartheid regime and thus combat impunity.”[33]
Other Relevant Institutions and Stakeholders
It is thus clear from the above and from a conceptual level the importance of recognizing and appreciating that a Truth and Reconciliation Commission and process cannot be a once-off event in bringing about meaningful reconciliation in any society coming out of conflict.
Despite the limited mandate and capacity of the South African Truth and Reconciliation Commission, a lot of hope and unrealistic expectations were placed on the TRC with little regard to the strengthening and support of other relevant and necessary institutions that will consolidate and continue the reconciliation process after a Truth and Reconciliation Commission with its limited scope and fixed operational time frame. These institutions include in South African, the South African Human Rights Commission, which has a long term mandate to strengthen and support constitutional democracy through the promotion and protection of human rights – part of a reconciliation process, and relevant non-governmental organizations. As a result, the South African Human Rights Commission did not play an active supporting role in the TRC process even though it is meant to continue to the work of the TRC.
Colonialism in South Africa, especially the so-called colonialism of a special kind-apartheid- was not only brutal but also had a devastating impact on the political, economic, social and cultural aspects of the lives of the oppressed and exploited masses many who continue to suffer the consequences thereof sixteen years late in post-apartheid-South Africa.
While the impact of colonialism in South Africa has been well documented, it does suffice, however, to re-state that in response to the devastation of apartheid, the United Nations General Assembly in its resolution of 30 November 1973 declared apartheid as a crime against humanity.[34] Article 2 of the International Convention on the Suppression and Punishment of the Crime of Apartheid describes the essential elements of the crime of apartheid and amongst these includes the following:
- Denial to a member or member of a racial group or groups of the right to life and liberty of person:
-by murder of members of a racial group
-by the infliction upon the members of a racial group or groups of serious bodily or mental harm, by the infringement of their freedom or dignity, or by subjecting them to torture or to cruel, inhuman or degrading treatment or punishment
-by arbitrary arrest and illegal imprisonment of the members of a racial group or groups
- Deliberate imposition on a racial group or groups of living conditions calculated to cause its or their physical destruction in whole or in part;
- Any legislative measures and other measures calculated to prevent a racial group or groups from participation in the political, social, economic and cultural life of the country and the deliberate creation of conditions preventing the full development of such a group or groups, in particular by denying to members of a racial group or groups basic human rights and freedoms, including the right to work, the right to form recognized trade unions, the right to education, the right to leave and return to their country, the right to a nationality, the right to freedom of movement and residence, the right to freedom of opinion and expression, and the right to freedom of peaceful assembly and association;
- Any measures, including legislative measures, designed to divide the population along racial lines by the creation of separate reserves and ghettos for the members of a racial group or groups, the prohibition of mixed marriages among members of various racial groups, the expropriation of landed property belonging to a racial group or groups or to members thereof;
- Exploitation of the labour of the members of a racial group or groups, in particular by submitting them to forced labour.
Article 3 outlined the scope of criminal responsibility to include those who aided and abetted apartheid: It provided that:
“International criminal responsibility shall apply, irrespective of the motive involved, to individuals, members of organisations and institutions and representatives of the State, whether residing in the territory of the State in which the acts are perpetrated or in some other States, whenever they:
-Commit, participate in, directly incite or conspire in the commission of the acts mentioned in article II of the present Convention;
-Directly abet, encourage or co-operate in commission of the crime of apartheid.”
However, following the negotiated end of the apartheid system and in the order to advance national unity, reconciliation and reconstruction, the Postamble of the 1993 Constitution departed from international law as in the Apartheid Convention by providing for the enactment of legislation to grant amnesty for ‘acts committed in the course of conflicts of the past’. The Postamble of the 1993 Constitution in this regard provided:
“This Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.
The pursuit of national unity, the well being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society.
The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violation of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.
These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for unbuntu but not for victimisation
In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past. To this end, Parliament under this Constitution shall adopt a law determining a firm cut-off date, which shall be a date after 8 October 1990 and before 6 December 1993, and providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed.
With this Constitution and these commitments, we, the people of South Africa, open a new chapter in the history of our country
Nkosi sikelela iAfrica. God seen Suid-Afrika
Morena boloka sechaba sa heso. May God bless our country
Mudzimu fhatutshedza Afrika. Hosi katekisa Afrika”
Truly remarkable and inspired sentiments indeed!
Amnesty as a response to international crime-genocide and crime against humanity
In view of the provisions of the Rome Statute of the International Criminal Court and position taken by Amnesty International, the granting of amnesty as a response to international crime is no longer fashionable and would be difficult to justify. In this regard, the ICC prosecutor in response to the referral of Libya to the Court by the Security Council issued a statement that there will be no immunity against prosecution for those responsible for international crimes.
It is possible that a situation similar to that of South Africa that lead to the granting of amnesty for international crimes might arise or be invoked in Kenya, Sudan and Uganda, but this will be difficult to justify post the Rome Statute. In any case, there was no blanket amnesty granted in the South African context.
Constitutional guarantees against future gross violations of human rights
A number of constitutional measures have been taken in South Africa as a guarantee against future gross violations of human rights. These measures entail the establishment of institutions like the South African Human Rights and others, a strong and independent judiciary, effective position and viable civil society.
However, the challenges in addressing poverty, unemployment, increasing gap between rich and poor and harmony between racial groups continue to pose a threat in this regard. The undermining of constitutional bodies like the South African Human Rights Commission and the inadequate response to xenophobia are worrying concerns.
The failure of the government to ratify the Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is also difficult to understand in this context.
Conclusion
Sixteen years later, the centre, though shaky, holds- a credit to the contribution of the Truth and Reconciliation Commission in part. However, without much political will and commitment to address the inequalities and injustices of the past and the prevailing high levels of poverty, unemployment, corruption and inadequate racial harmony and peaceful co-existence amongst the people, the post-apartheid South Africa remains under threat and could unravel like many other post-colonial societies.
Marikana, Census 2011 and the National Planning Commission Report.
[1] Document A/CONF.183/9 of 17 July 1998. The Convention entered into force on 1 July 2002.
[2] See Articles 5-8 of the Rome Statue. Paragraph 4 of the Statute provides that “..the most serious crimes of concern to the international community as a whole must not go unpunished and that their effective prosecution must be ensured by taking measures at the national level and by enhancing international co-operation,” ibid.
[3] The African Union on the basis of the peace process in relation to the conflict in Darfur and the impact of the indictment of President Bashir by the International Criminal Court on this process, resolved in July 2009 not to cooperate with the Court in the arrest and surrender of the Sudanese president. See ‘Decisions on the meeting of African States Parties to the Rome State of the International Criminal Court’ endorsed by the Thirteenth Ordinary Session of the Assembly of the African Union, 13 July 2009 Sirte, Great Socialist People’s Libyan Arab Jamahiriya. In its Sixteenth Ordinary Session held in Addis Ababa, Ethiopia on 30-31 January 2011, the AU further took a stand that decision by Chad and Kenya to host the indicted Sudanese president on 21 July 2010 and 27 August 2010 respectively and not assist the ICC in effecting the arrest and surrender warrant against him was in pursuit of ‘peace and stability’ in the regions (para 4 & 5). The AU in the same session supported and endorsed Kenya’s request to the UN Security Council for the deferral of the ICC’s investigation and prosecutions (Article 16 of the Rome Statute of the ICC) in relation to the 2008 post election violence; citing once more, the ‘ongoing peace building and national reconciliation process’ and the need to ‘prevent the resumption of conflict and violence (para 6).
[4] As per the Promotion of National Unity and Reconciliation Act 34 of 1995.
[5] See the International Convention on the Suppression and Punishment of the Crime of Apartheid. Adopted by the UN General Assembly on 30 November 1973 and came into force on 18 July 1976.
[6] See Articles II, III and IV of the Apartheid convention, ibid.
[7] Epilogue of the Constitution of the Republic of South Africa, Act 200 of 1993.
[8] Azanian Peoples Organization (AZAPO) and Others v President of the Republic of South Africa and Others (CCT 17/96) [1996] ZACC 16, 1996(8) BCLR 1015, 1996(4) SA 672 (25 July 19960 para 2, per Mahomed DP.
[9] At least 33 truth commissions were established in 28 countries between 1974 to 2007, see Amnesty International, Truth, Justice and Reparation: Establishing an Effective Truth Commission, 11 June 2007 (AI Index: POL 30/009/2007 (Public) , available at http://www.amnesty.org/library/
[10] Section 3 of the Act, above note 4.
[11] Done by the Committee on Reparation and Rehabilitation. In terms of section 4 (f) of the Act, the Commission through the Committee on Reparation and Rehabilitation shall:
make recommendations to the President with regard to—
(i) the policy which should be followed or measures which should be taken with regard to the granting of reparation to victims or the taking of other measures aimed at rehabilitating and restoring the human and civil dignity of victims;
(ii) measures which should be taken to grant urgent interim reparation to victims.
[12] A court order initiated by Mr. Buthelezi the leader of the IFP led to this being moved to 2003 instead of 2002. The first five volumes of the TRC report were published in 1998 and the sixth volume on the work of the Amnesty Committee was published in 2003, see Paul van Zyl, Dilemmas of Transitional Justice: The Case of South Africa’s Truth and Reconciliation Commission, 52 Journal of International Affairs (1999), available at http://topics.law/cornell.edu/wex/south_african_truth_commission.
[13] Antonia Moras, Review Essay: A Country Unmasked: Inside South Africa’s Truth and Reconciliation (Alex Boraine, Oxford, England: Oxford University Press, 2000), Alaska Justice Forum , Vol 18 No 3 at http://justice.uaa.alaska.edu/forum/18/3fall2001/b_safrica.html
[14] Paul van Zyl, above note 12. The author regards the South African TRC’s amnesty programme as ‘the broadest in history among comparable truth commission and many believe that amnesty has helped with the reconciliation process.”
[15] Antonia Moras, above note 13. See also, Committee against Torture, Consideration of Reports Submitted by States Parties under Article 19-Conclusions and Recommendations of the Committee against Torture: South Africa, CAT/C/ZAF/CO/1 of 7 December 2006 at http://dacess-dds-ny.un.org/doc/UNDOC/GEN/607/403/24/PDF/60740324.pdf?OpenElement. The Committee noted ‘with appreciation the remarkable work of the Truth and Reconciliation Commission and its role in the peaceful transition..’ para 18.
[16] See Susie Linfield, ‘Trading Truth for Justice? Reflections on South Africa’s Truth and Reconciliation Commission,’ Boston Review (Summer 2000), available at http://bostonreview.net/BR25.3/linfield.html.
[17] Paul van Zyl, above note 12.
[18] See Susie Linfield, above note16.
[19] As an example, 69 000 workers were killed and over a million injured in South African mines between 1900 and 1994-but their plight was not part of the TRC hearings, see Susie Linfield, ibid.
[20] See Paul van Zyl, above note 12.
[21] See Anurima Bhargava, Defining Political Crimes: A Case Study of the South African Truth and Reconciliation Commission, 102 Colum. L. Rev. 1303 (June 2002).
[22] Amnesty International, Truth, justice and reparation: Establishing an effective truth commission (AI Index: Pol 30/009/2007 (Public), available at http://www.amnesty.org/
[23] Terry Bell and Dumisa Buhle Ntsebeza, 2001, Unfinished Business: South Africa Apartheid & Truth, Cape Town: Red Works, pp 288-9.
[24] Paul van Zyl, above note 14.
[25] Section 1 of the Act.
[26] Ibid, pp 288-289.
[27] The Presidency, Towards A Fifteen Year Review, Pretoria: The Presidency, 2008, p18.
[28] Ibid, p 101.
[29] See the 2007/8 UNDP Human Development Report at http://hdrstats.undp.org/indicator/147.html (visited on 11/10/2008). Gini coefficient rates of countries higher than South Africa at 57.8- Colombia (58.6), Paraguay (58.4), Bolivia (60.1), Botswana (60.5), Namibia (74.3), Lesotho (63.2), Haiti (59.2), Central African Republic, and Sierra Leone (62.9).
[30] David Rothkopf, Superclass: The Global Power Elite and the World they are Making, London: Little Brown, 2008, p xv.
[31] The Towards Fifteen Year Review report provides for example, that ‘African unemployment was 30.5% compared with 4.5% for whites in September 2007, above n 21 at p 32.
[32] See Paul van Zyl, above note 12.
[33] Committee Against Torture, above note 15.
[34]Article 1 of the International Convention on the Suppression and Punishment of the Crime of Apartheid, resolution 3068(XXVIII) of 30 November 1973, came into force on 18 July 1976.