- Reconciliation Through Truth: A Reckoning of Apartheid’s Criminal Governance
Transitional justice has recently become a major focus for human rights activists, lawyers, the international community, and academics, as well as others. This is because many countries have experienced transitions from authoritarian regimes to democratic ones in recent years. Countries that have become democratic include countries in Southern Europe, South America, Africa, and Eastern Europe. The area of transitional justice has taken on an international flavor with the establishment of international criminal tribunals for the former Yugoslavia and Rwanda and, more recently, with the drafting of a statute for an International Criminal Court.
A critical question for these newly democratic countries (and for the international community) is how to deal with gross violations of human rights in the past. Issues raised include whether there ought to be criminal trials, who ought to be tried, whether to pass or rescind amnesty laws, and whether there ought to be a truth commission or similar process. Countries that have looked at these issues include El Salvador, Guatemala, Honduras, Chile, Columbia, Greece, Germany, Poland, Hungary, Czechoslovakia, Ethiopia, and Rwanda. 1South Africa is the latest example of this trend. 2 [End Page 1129]
The transition in South Africa has been remarkable. The seemingly hopeless situation that prevailed at the beginning of 1990, one of international ostracism, international boycotts, internal strife, and an armed struggle by liberation movements, gave way to democracy. 3This outcome is even more extraordinary given the fact that the negotiation years were racked by extreme violence and ethnic divisions. 4However, within four years, South Africa transformed from an anti-democratic state into a constitutional democracy. 5
This book, first published in 1996, is one of the most controversial to appear since the transition to democracy in 1994. Its controversial nature is partly due to the subject matter and to the book’s partisan political stance. Its first author, Kader Asmal, is Minister for Water and Forestry Affairs in Nelson Mandela’s government. President Mandela, in fact, wrote the foreward to the book.
In the negotiation period before 1994, many members of the old government opposed the establishment of a truth commission. They argued that burying the past would have no negative consequences, whereas reopening old wounds would be disastrous. They called for a blanket amnesty for the perpetrators. However, the majority view was that a new nation could not be built on a denial of the past. Atrocities should be exposed and the suffering of the victims acknowledged. The question was: How should this be done?
It was generally agreed that Nuremberg-type trials of human rights perpetrators were not appropriate in South Africa. 6The political settlement that ushered in the new South Africa was based on compromise. This was because the previous regime had not suffered military defeat and so could play a dominant role in the negotiations. In addition, local communities and the economic community supported a compromise. The negotiators, therefore, placed a provision permitting amnesty in the interim Constitution of South Africa. Kader Asmal, who had returned from exile, argued strongly during the negotiations that South Africa should avoid Nuremberg-type trials and that some other process ought to occur. In fact, it is believed by some that Asmal drafted the provision in the Constitution that authorized amnesty.
Supporters of a truth commission argued that a process of public truth-telling was an essential component of the healing process. Ignoring history would lead to collective amnesia, which would not only be unhealthy for the body politic but would also ensure that the unresolved past would return to haunt all South Africans. In the absence of the processes carried out by a truth [End Page 1130]and reconciliation commission, anger, resentment, and revenge would be the order of the day in a deeply polarized society. Only by publicly and collectively acknowledging the horror of past human rights violations would...