Truth or Reconciliation Mechanism: Interim Constitution Accord

Constitution of the Republic of South Africa Act 200 of 1993, Chapter 15, Section 232(4):

In interpreting this Constitution a provision in any Schedule, including the provision under the heading 'National Unity and Reconciliation', to this Constitution shall not by reason only of the fact that it is contained in a Schedule, have a lesser status than any other provision of this Constitution which is not contained in a Schedule, and such provision shall for all purposes be deemed to form part of the substance of this Constitution.

Constitution of the Republic of South Africa Act 200 of 1993, National Unity and Reconciliation:

This Constitution provides a historic bridge between the past of a deeply divided society characterized 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 color, 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 violations 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 ubuntu but not for victimization.

In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offenses 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 Oct 1990 and before 6 Dec 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.

Implementation History

1993

Minimum Implementation

There was no reported progress on establishing a truth or reconciliation commission between 1991 and 1992.

In his interview with the The Guardian in 1993, Nelson Mandela stated that the ANC still wanted to set up a truth commission to investigate civil rights abuses during the anti-apartheid struggle. He said that the commission would “collect evidence to deal with those people who wanted to be indemnified - not for the purpose of having a Nuremberg trial, but for the purpose of granting an indemnity on an individual basis."1

National debate on establishing truth commission started in August 1993. The ANC reportedly called for the establishment of a national commission to probe past human rights abuses by all parties to the conflict in South Africa. In a news conference held on August 30, 1993, ANC Secretary-General, Cyril Ramaphosa, stated that the ANC “…call[ed] on the government to agree, following discussions with the ANC and other political and non-governmental organizations, to set up, without delay, a Commission of Enquiry or Truth Commission into all violations of human rights since 1948.'' He further said that the purpose of such a commission would be to investigate all the violations of human rights - killings, disappearances, torture as ill treatment - from all quarters."2

  • 1. "PRESIDENT IN WAITING SPELLS OUT VISION FOR SOUTH AFRICA," The Guardian (London), April 29, 1994.
  • 2. "ANC wants national body to probe human rights abuses in South Africa," United Press International, August 30, 1993.
1994

Minimum Implementation

On June 8, 1994, the South African government said that it would introduce legislation that would grant amnesty to those who would confess to political crimes committed for and against apartheid. “Under the proposals, a "truth commission" would investigate accusations of human rights abuses and political crimes and present a report to Mandela, who would have final say on who receives amnesty”. "Reconciliation is not simply a question of indemnity or amnesty and letting bygones be bygones," Omar said. "If the wounds of the past are to be healed ... disclosure of the truth and its acknowledgment are essential."3

The truth and reconciliation commission was expected to be unveiled in the third week of September 1994, but was delayed because of disagreements between the ANC and National Party. A cabinet committee was said to have accepted the principle of establishing a truth commission but differences remained between the ANC and the National Party (NP). The NC had objections on “limiting the time for applications for amnesty or indemnity to several months, arguing that it should be allowed at any time.” The NC also objected the public hearing of the commission.4

  • 3. "South Africa Proposes Amnesty for Political Criminals Who Confess," The Washington Post, June 8, 1994, PAGE A25.
  • 4. "SOUTH AFRICA-POLITICS: APARTHEID'S INFORMERS LET OFF THE HOOK," IPS-Inter Press Service, October 24, 1994.
1995

Intermediate Implementation

Even after the enactment of the National Unity and Reconciliation Bill in the Parliament, the appointment of the commission was delayed. President Mandela said in his statement that the, “Cabinet will select the commissioners before the year end”. His statement said that “the number of people on the final short list would be 25 and that the panel would have nine members, consisting of persons ranging from politicians to lawyers and churchmen."5

On November 29, 1995, the following people were named to sit on the Truth and Reconciliation commission:

- Archbishop Desmond Tutu (chairperson): One of three Nobel Peace Prize winners from South Africa, Tutu is a household name. He is the archbishop of Cape Town of the Church of the Province of Southern Africa.

- Dr. Alex Boraine (deputy chairperson): Boraine now serves as executive director of Justice in Transition, formed in August last year to focus on redressing past human rights violations. Ordained as a Methodist minister in 1938, he served as executive director of the Institute for Democracy in South Africa from 1986 to 1994.

- Mrs. Mary Burton: Burton was president of the Black Sash from 1986 to 1990 and is still a member of the organization. She has been involved in discussions and workshops relating to the Truth Commission.

- Advocate Chris de Jager: De Jager, a lawyer, is a member of the Volkstaat Afrikaner homeland Council and a member of the Human Rights Commission.

- Rev. Bongani Finca: Finca was appointed interim administrator of Ciskei after military ruler Brig Oupa Gqoza's administration collapsed. He is now president of the Eastern Cape Provincial Council of Churches and a member of the National Executive Committee of the South African Council of Churches.

- Ms. Sisi Kamphephe: Kamphephe is a lawyer and a member of the Black Lawyers' Association.

- Mr. Richard Lyster: Lyster is a lawyer and has been director of the Legal Resources Centre in Durban since 1990. He serves on the arbitration panel of the Independent Mediation Service of South Africa.

- Mr. Wynand Malan: Malan resigned as a National Party MP under former state President P .W. Botha. He then formed the National Democratic Movement, which later merged with the Progressive Federal Party to form the Democratic Party. He quit politics in 1989 and practices as an attorney and value systems management consultant.

- Ms. Hlengiwe Mkhize: Mkhize, the national director of mental health and substance abuse, is a psychologist who specializes in treating people traumatized by violence. She is a member of the South African Black Social Workers' Association and the International Society of Medicine.

- Mr. Sumisa Ntsebeza: Ntsebeza is an attorney and served as founder president of the National Association of Democratic Lawyers and later as president of the Black Lawyers' Association (BLA). He is now the BLA's publicity secretary and serves as chairman of the prisoners welfare programme.

- Dr. Wendy Orr: Orr compiled a list of detainees who were tortured in Port Elizabeth in the mid 1980s and successfully filed an interdict against the minister of law and order to prevent police from assaulting prisoners. She is presently deputy registrar of student affairs at the University of Cape Town.

- Dr. Mapule Ramashala: Ramashala is a clinical psychologist and medical researcher who recently returned to South Africa.

- Dr. Faizel Randera: Randera was a member of a committee of the National Medical and Dental Association that investigated the poisoning of former South African Council of Churches leader Rev. Frank Chikane in 1989. Randera has worked extensively with human rights lawyers, providing medical/legal reports on people who suffered physical and psychological abuse.

- Dr. Yasmin Sooka: Sooka, a lawyer, is the national president of the World Conference on Religion and Peace. He served as a member of the legal task force in the National Coordinating Committee for the Repatriation of South African Exiles.

- Ms. Glenda Wildschut: Ms Wildschut is a social worker at the Western Cape Trauma Centre and has worked in the underprivileged communities in the Western Cape. She has also worked with victims of violence.

- Rev. K M Mqojo: Mqojo is a Methodist clergyman from KwaZulu-Natal.

- Advocate Denzil Potgieter: Potgieter is a member of the Cape Bar who has appeared in various civil and political rights matters. He acted as secretary for the presidential panel which shortlisted the Truth Commission candidates.6

The Truth and Reconciliation Commission met for the first time on December 16, 1995, in Cape Town.7

  • 5. "SOUTH AFRICA; Mandela explains Truth Commission appointment process," BBC Summary of World Broadcasts, September 18, 1995.
  • 6. "SOUTH AFRICA; Members of Truth and Reconciliation Commission named," BBC Summary of World Broadcasts, November 30, 1995.
  • 7. "SOUTH AFRICA; Truth Commission holds first meeting amid "tight security," BBC Summary of World Broadcasts, December 17, 1995.
1996

Intermediate Implementation

On April 16, 1995, the TRC started its hearings. In the very first day, three women and one man -- all of them victims of the apartheid told their stories in a televised function. The TRC was said to roam the country for the next two years to expose the wounds of the past, hopes to provide a catharsis to what Tutu called a nation of "traumatized and wounded people."8

  • 8. "South Africa looks at its brutal history: Victims of apartheid bare their pain to the world during the first session of the truth and reconciliation commission," The Vancouver Sun (British Columbia), April 16, 1996.
1997

Intermediate Implementation

The hearings continued in 1997.

1998

Full Implementation

South Africa's Truth and Reconciliation Commission concluded its hearings on massive human rights abuses during the years of white minority rule. The commission brought forth many witnesses giving testimony about the secret and immoral acts committed by the Apartheid Government, the liberation forces including the ANC, and other forces for violence that many say would not have come out into the open otherwise. On October 28, 1998 the Commission presented its report, which condemned both sides for committing atrocities.9

The TRC also held hearings on amnesty and reparations, which continued until 2001.

  • 9. James Gibson, “The Contributions of Truth to Reconciliation: Lessons From South Africa,” Journal of Conflict Resolution 50, no. 3 (2006): 409-432.
1999

Full Implementation

TRC was established and submitted its final report in 1998. It continued to hold hearings on reparations and amnesty until 2001.

2000

Full Implementation

TRC was established and submitted its final report in 1998. It continued to hold hearings on reparations and amnesty until 2001.

2001

Full Implementation

South Africa's Truth and Reconciliation Commission (TRC) officially closed its doors on December 20, 2001.10

  • 10. "South Africa; Truth and Reconciliation Commission Closes Its Administration," Africa News, December 20, 2001.
2002

Full Implementation

South Africa's TRC shut down in December 2001; no further developments.