Adam Sitze meticulously traces the origins of South Africa’s Truth and Reconciliation Commission back to two well-established instruments of colonial and imperial governance: the jurisprudence of indemnity and the commission of inquiry. This genealogy provides a fresh, though counterintuitive, understanding of the TRC’s legal, political, and cultural importance. The TRC’s genius, Sitze contends, is not the substitution of “forgiving” restorative justice for “strict” legal justice but rather the innovative adaptation of colonial law, sovereignty, and government. However, this approach also contains a potential liability: if the TRC’s origins are forgotten, the very enterprise intended to overturn the jurisprudence of colonial rule may perpetuate it. In sum, Sitze proposes a provocative new means by which South Africa’s Truth and Reconciliation Commission should be understood and evaluated.
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The Impossible Machine
A Genealogy of South Africa's Truth and Reconciliation Commission
By Adam Sitze
The University of Michigan PressCopyright © 2013 University of Michigan
All rights reserved.
INDEMNITY AND AMNESTY
1.1 One of the main concerns of transitional justice has been the question of why and how South Africa's TRC is unprecedented. The consensus within transitional justice is that the TRC is unprecedented because its amnesties were not issued en masse but were individualized and conditional upon public, full disclosure of crimes. This consensus is reached by way of a narrative, international in scope, which contrasts the TRC with the Latin American Truth Commissions, on the one hand, and the Nuremberg Trials, on the other. According to this narrative, the TRC is distinct both from the retributive justice dispensed at the Nuremberg Trials and from the blanket amnesties passed in Latin America during the 1970s and 1980s, because its power to offer amnesty was, on the one hand, individualized (not general) and, on the other, not exclusive of punishment (because there was the chance that, absent full disclosure, an amnesty application could fail). On this view, the TRC was unprecedented for the way it offered a sort of "third way" or "golden mean" between blanket amnesty and individualized punishment. Indeed, the TRC's "individualized, accountable amnesty process," its focus on the "concrete particular," was one of the main reasons it was able to lay claim to a paradigmatic status within the field of transitional justice. It is as though South Africa's practice of individualized amnesty were the last and best chapter in an international learning curve, the apex and the exemplar of transitional justice, the best illustration of how to conduct a transition from authoritarian rule to liberalism, the most compelling reason why the TRC should be studied as a "model" around the world.
Although this narrative quickly took hold within studies of the TRC, it rests on a set of premises that are far from unquestionable. To begin, there is good reason to doubt the narrative of the Nuremberg Trials as a simple paradigm of retributive justice. As only one small but significant part of a complicated juridical response to Nazism that cannot be understood apart from later extraditions, trials, and reparations, the executions that resulted from the Nuremberg Trials especially cannot be evaluated apart from Chancellor Konrad Adenauer's amnesties of 1949 and 1954, which together exempted from punishment close to one million former Nazis whose crimes could be said to have been committed on a "political basis." Similar combinations of execution and amnesty emerged in postwar France (where 791 collaborationists were executed for treason and close to 30,000 were exempted from severe punishments by amnesty laws passed in 1947 and 1951) and Italy (where fifty fascists were executed and many thousands more were covered by a 1946 amnesty law). In their punishment of Nazi, fascist, and collaborationist leaders and their exemption from punishment of those leaders' followers, the amnesty laws of postwar Europe remained remarkably loyal to the shape and structure of the ancient Athenian amnesty of 403 BC. That law excluded from its protections the Thirty Tyrants and other leaders of the oligarchic overthrow of democracy, exposing most to trial and execution, while permitting the great mass of their followers to go unpunished. Given the commensurability of postwar, European "retributive justice" with this "paradigmatic" origin of amnesty as such, it becomes difficult to maintain that the Nuremberg Trials are somehow the opposite of amnesty, as some scholars of transitional justice are wont to argue. To the contrary, if by "amnesty" we mean a reconciliation of the divided city in which capital punishment of a leading few is coordinated with a forgetting of the crimes of the complicit many, we are obliged to conclude that the "retributive justice" of postwar Europe was in fact perfectly consistent with the theory and practice of amnesty. There is even a persuasive argument to be made that the trials of Nazis functioned as a sort of mass public education about the meaning and basis of complicity in political evil (and arguably even "collective catharsis"). Understood in this way, it becomes even more difficult to say that the trials of Nazis were incommensurable with the TRC, for the latter, not unlike the former, aspired to the status of a cathartic ritual that sought to educate the public and to establish the moral and intellectual foundations for a new rule of law and that used amnesty as a means to that end. In short, as Stéphane Leman-Langlois has argued in his indispensable essay on the topic, transitional justice's attempt to problematize the crime of apartheid with reference to Nuremberg is less significant for its juridical or historical substance than for its formidable rhetorical function, which is to say, its capacity to stifle the difficult questions involved with the possibility of putting apartheid officials on trial and its ability to legitimate the unusual administrative apparatus the postapartheid government established instead.
We also have grounds for doubting the assertion that the TRC's individualized amnesties are distinct from the blanket amnesties that were passed during many of the political transitions that took place in Latin America in the 1980s and 1990s. One of the main reasons why it was not necessary for the TRC's Amnesty Committee to offer a blanket amnesty of a Latin American type is that the loyalty of the South African Defence Force (SADF) was already all but guaranteed by the categorical indemnities that preceded the 1995 legislation that created the TRC. In 1976 and again in 1980, the South African Parliament passed amendments to the 1957 Defence Act that augmented the already very powerful indemnity provisions established by Section 103 of that act. The effect of these amendments, as we shall see in section 3.2, was that SADF members were already indemnified in advance for any illegal acts they might commit in honest and good faith service to the public good. In 1961 and 1977, meanwhile, the South African Parliament passed extremely wide indemnity acts that protected not only South African police officers but also a large numbers of state officials from prosecution for the civil and criminal wrongs they inflicted in the course of the Sharpeville Massacre of 1960 and the suppression of the Soweto Uprising of 1976. Both of these events fell within the TRC's juridical and investigative mandate, but there are many signs that the indemnity provisions of the Defence Act, in combination with the specific indemnity acts passed in 1961 and 1977, decreased or even nullified the power of the TRC's "carrots and sticks" approach: it is unclear why any state official, member of the SADF, or officer of the South African Police would feel obliged to run the risk of trading truth for amnesty when he or she was already expressly protected from prosecution by prior indemnity legislation.
These protections from prosecution were widened even more by the indemnity acts passed by the South African Parliament in 1990 and 1992, especially those passed in 1992. In 1990, following negotiations between the African National Congress (ANC) and the National Party (NP), the South African Parliament passed the Indemnity Act of 1990. Its purpose was, "for the sake of reconciliation and for the finding of peaceful solutions" to conflict in South Africa, to establish official regulations for the conferral of temporary immunity or permanent indemnity on members of ANC, PAC, and other liberation movements for illegal acts committed with a political objective. To this end, the act conferred on President de Klerk an extremely broad set of powers to protect persons against civil and criminal proceedings in the name of reconciliation and peaceful constitution transformation (as set forth in the Groote Schuur Minute of May 4, 1990). On top of allowing the president the use of his existing powers of pardon and parole, the act authorized him to grant not only indemnity (unconditionally or on conditions "he may deem fit") but also an otherwise unspecified power of immunity (again, unconditionally or on conditions "he may deem fit"). In his use of these powers, which amounted to what Du Bois-Pedain rightly has called a "blanket competence," President de Klerk was advised by an extraordinarily confidential set of indemnity committees, whose members were chosen by the president and sworn to secrecy. All indemnity acts, as we shall see in section 2.3, function to legalize illegality, and in this, the Indemnity Act of 1990 was no different. It gave de Klerk the blanket authority to protect not only members of the liberation movement but also the agents and officials of the apartheid state from criminal and civil liability for certain illegal acts they may have committed in the prior decade.
Apparently, however, even these already broad and secret powers of indemnity were not broad or secret enough for President de Klerk. So he used his President's Council to supplement the Indemnity Act of 1990 with the Indemnity Act of 1992 and, most controversially, the Further Indemnity Act of 1992. The latter, in particular, cannot be described except as an act of extreme executive arbitrariness. Whereas the Indemnity Act of 1990 applied to all parties of the South African conflict, the sole purpose of the Further Indemnity Act of 1992 was to indemnify officials and persons who committed civil and criminal wrongs in support of the apartheid regime. Whereas the Indemnity Act of 1990 was the result of conciliatory negotiations between the ANC and the NP, de Klerk's turn to the President's Council was a stunningly unilateral decision: the Further Indemnity Act of 1992, in fact, marked this council's first, last, and sole use since it was created in and by the failed Constitution of 1983 for the express purposes of circumventing parliamentary debate and expanding executive authority. Although the Further Indemnity Act cannot technically be said to be completely bereft of procedure — it did create a National Council of Indemnity to process applications for indemnity — the council was, like the indemnity committees established by the Indemnity Act of 1990, completely secret, and so the extent and quality of the exercise of its powers remains unclear even today. In addition to de Klerk's considerable existing executive powers for pardoning, remitting punishment, commuting sentences, and granting early releases, the Indemnity Act of 1990 and, even more so, the Further Indemnity Act of 1992 conferred on the South African executive a breathtakingly chaotic capacity to create the ad hoc equivalent of a blanket amnesty for apartheid's loyalists. There is every indication that de Klerk used these powers to precisely this effect. The scholars who have devoted the most scrutiny to the indemnifications that took place in the years between 1990 and 1994 have estimated that at least thirteen thousand and up to twenty-one thousand persons were protected from prosecution in the course of this anarchic process (an estimate that does not include those already protected from prosecution by South Africa's indemnity jurisprudence of 1957, 1961, and 1977). This is, even on the lowest estimate, about twice as many people as the 7,094 individuals — the majority of whom were, in concrete terms, drawn from the ranks of the liberation movements — who applied for amnesty for the TRC.
The 1995 PNR Act repealed the Indemnity Act of 1990 and the Further Indemnity Act of 1992, both of which stood very little chance of surviving constitutional review. It also, however, stipulated that the protections these acts established "shall remain in force notwithstanding the repeal of those Acts." This means that the concrete legal protections created by these indemnity acts stayed in effect, even and especially as the acts themselves were negated and subsumed by the much more palatable PNR Act. Aside from the genealogical significance of this persistence of indemnity within the TRC, which I shall describe in more detail later in this chapter, the concrete legal protections these laws established relates directly to one of the self-described failings of the TRC, namely, its inability to induce SADF members to apply for amnesty. Although the secrecy of the Indemnity Acts of 1990 and 1992 precludes any scholarly certainty on this point, there is a persuasive argument to be made that the sweeping protections established by these two acts obviated any need for SADF members to apply for amnesty from the TRC. But if this is true, we also need to doubt the origin story according to which the TRC is unprecedented for its rejection of blanket amnesties of a Latin American sort. Despite the many differences between the "indemnification process" in South Africa between 1990 and 1994 — which was, by turn, carefully negotiated, capriciously authoritarian, chaotically piecemeal, and rigorously confidential — and, for example, the single, blanket self-amnesty passed by military forces in Guatemala in 1986, the former has more than just a passing resemblance to the latter: both include secretive attempts by repressive states undertaken just prior to their departure from power to exempt significant portions of their military forces from being prosecuted for any crimes they may have committed. Here, however, is the really crucial point: we can argue that the TRC's individualized amnesties somehow differ in kind from blanket amnesties of the Latin American genre only to the extent that we artificially isolate the TRC from the indemnification process that is, according to the PNR Act itself, the TRC's own explicitly acknowledged precedent. Indeed, one of the reasons that the TRC "itself" did not have to engage in a blanket amnesty is that a blanket indemnity was already in effect prior to the inaugural hearing of the TRC's Amnesty Committee. It is perhaps even the case, in fact, that this categorical indemnity is one of the conditions that enabled the TRC itself to come into being in the first place: it is doubtful that, in the absence of a blanket indemnity, the SADF would have consented to any sort of political transition at all.
In this sense, the critical question is not whether and why the TRC engaged in individualized and conditional amnesties rather than blanket amnesties. It is how to understand the relationships between the individualized amnesties for which the TRC is well known and the lesser-known categorical indemnities that not only preceded those amnesties and coexisted alongside them in silent antagonism to them (limiting their scope and effect as an incentive to elicit submissions to the Amnesty Committee) but arguably even enabled the existence of the TRC itself. To pose this question is not, of course, to forget that the TRC itself did indeed resist the temptation to issue blanket amnesties. From the "Explanatory Memorandum" appended to the "Amnesty Bill" unveiled by Dullah Omar, minister of justice, at a conference held by the Institute for a Democratic Alternative in South Africa (IDASA) in Cape Town on July 29–31, 1994, it is clear that group indemnities were explicitly on the table as a legislative option during the earliest stages of TRC planning. What's more, in November 1997, the TRC's Amnesty Committee, working independently from the rest of the TRC, granted thirty-seven ANC members a blanket amnesty that was publicly opposed by Desmond Tutu and others and that was eventually struck down in the courts. But while the TRC was quite consistent in its refusal of this practice, the TRC itself was, as architects like Omar knew only too well, only the last and best of a series of indemnity acts; and even in the event that its principled position on blanket amnesty was not enabled by the unprincipled positions of its immediate precedents, its amnesty still cannot be interpreted intelligibly without reference to those precedents. It follows from this that the problem of blanket amnesty cannot, then, be coherently posed in the terms assumed by transitional justice, where the TRC's individualized and conditional amnesties gain their meaning and value in opposition to the blanket amnesties of Latin America. Indeed, not only did blanket amnesty remain a simmering juridical question in post-TRC South Africa, but many blanket amnesties have been repealed in Latin America. Peru, for example, was ordered by the Inter-American Court of Human Rights to repeal two of its amnesty laws in 2001, and Argentina repealed two of its amnesty laws in 2003. In Chile, meanwhile, the transnational prosecution of General Pinochet has created the political will to repeal that country's 1978 blanket amnesty. If the point of comparing the TRC to various Latin American Truth Commissions was to argue that the former's individualized amnesties successfully avoided the pitfalls of the latter's blanket amnesties, it is far from clear, a decade later, whether the premise for this argument still holds. If recent events are any indication, in fact, the very opposite would seem to be true.
Excerpted from The Impossible Machine by Adam Sitze. Copyright © 2013 University of Michigan. Excerpted by permission of The University of Michigan Press.
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Table of ContentsContents Acknowledgments Introduction Part 1 Chapter 1. Indemnity and Amnesty Chapter 2. Indemnity and Sovereignty Chapter 3. Indemnity in Crisis Chapter 4. Indemnity in the TRC Part 2 Chapter 5. What Is a Commission? Chapter 6. The Rise and Fall of the Tumult Commission Chapter 7. A Tumult Commission of a Special Type? Chapter 8. Out of Commission: Salus or Ubuntu? Epilogue: Toward a Critique of Transitional Justice Notes Bibliography Index