Judge Dennis Davis
Truth and Reconciliation
Judge Dennis Davis - Truth and Reconciliation
- Good afternoon to everybody. I’m talking this afternoon about the Truth and Reconciliation Commission of South Africa. And its broader implications, I suspect for all sorts of places. But, let’s concentrate on South Africa. There’ve been a huge amount of literature generated about the South African Truth and Reconciliation Commission. I’m going to quote from a recent book published by, or written by Andre du Toit, which is called, Amnesty Chronicles. Are the inner history of the amnesty negotiations during the South African transition, and the origins of the TRC. Now, Professor Du Toit writes as follows, and let me quote it to you. “When a society emerges from an oppressive era marked by authoritarian rule, and or a dirty civil war. The need for the truth about past atrocities, and the accountability of perpetrators of human rights violations becomes vital. There are some exceptions, such as the Spanish Pact Oblivion during the close Franco liberalisation in the 1970s. But more typically the victims of torture, and other abuses, as well as the families and comrades of those who had been disappeared have insisted on the truth. And on holding the perpetrators accountable for their actions. At key moments such as Argentina, after the demise of Lemeridi Goenta in the early 1980s, the cause was taken up by human rights movements, and other democratic forces. In the South African case too. A public discourse about the need to investigate, and uncover the activities of death squads and other Covid state agents becomes more salient in the course of the transition. And the idea of of a truth commission began to emerge.”
So, the point I’m wanted… What Du Toit says, is what we are talking about here. Of course, is about South Africa, but it’s not only about South Africa. And whilst I’m going to document the South African history and its significance and the limitations of the Truth Commission, there is now a vast body of literature worldwide, which really asks questions about how do you deal, with societies which emerge from oppression and from authoritarianism. And, seek, as it were, to uncover that which is very much part of their history. And that of course, was very significant in the South African case. It is extraordinary how many people of course were tortured, murdered, raped and subjected to the most awful forms of detention without trial. And the like disappeared without trace throughout the vicissitudes of apartheid history. And therefore it became perfectly obvious that when we got to the point, where De Klerk made that extraordinary speech in 1990, totally unexpected and broke the mould. Suddenly declaring, the ANC and the South African Communist Party, and the Pan-Africanist Congress, organisations, which the apartheid government had claimed were terrorist organisations for years and decades, indeed, all of a sudden, we were now in this process of negotiation towards a new constitution. Which I documented earlier in the series. And the question that therefore arose, was what were we going to do about this history?
How were people going to be held accountable for these particular atrocities? For these crimes? Which as you recall, apartheid was classified by the United Nations, was a climb against humanity. And the way it was supposed to be done, of course, for many years was that we would have our own Nurenberg trials. That at the end of the day, essentially, democracy would be victorious. And those who perpetrated these particular crimes, those who had essentially organised the Apartheid society, they would be held in to criminal trials. Countable criminal trials in the manner in which the Nazi leadership had been subjected to during the 1940s. And of which there’s been much discussion over lockdown university in its duration. The problem with that, and I think Colin Bundy has spoken about this, was that need aside rarely had the firepower to knock out the other. The National Party not withstanding all sorts of draconian measures. And a state of emergency which are throughout most of the 1980s, clearly was not able, despite all its efforts, to quell popular resistance to apartheid. But the African National Congress, which was the leading movement as it were, under which people coalesced for the purposes of opposing apartheid. And bringing about some form of non-racial democracy, couldn’t administer a knockout blow, to the National Party whose army and security apparatuses were certainly intact in 1990. And could have held out for quite some long time at awful cost, I accept, but they could have held down. And so the question was if you were going to have Nuremberg type trials, how were you going to do this, when you didn’t have the same situation as it occurred in Germany post-Second World War?
Where Germany had been completely defeated. How were you going to hold generals and politicians accountable, when they were still able to have recourse to very, very sophisticated state protection? State apparatus, police and the army? And that was the dilemma facing South Africa, as it emerged into its democratic moment. And some people suggest that is a contested view, I accept. That on the 25th of May, 1992, Professor Kader Asmal, who had been a member of the ANC’S Constitutional Committee and a senior lecturer at the School of Law, Trinity College Dublin, and had come back to South Africa, delivered an inaugural lecture, as Professor of Law, at the University of the Western Cape. Within Cape Town. It was entitled, A Victims Survivors and Citizens Human Rights Reparation and Reconciliation. In it, he floated the idea of some form of commission, which would deal with the problems of reparation reconciliation. And indeed, in the final report of the Truth and Reconciliation Commission, they wrote us, the first call for a South African Truth Commission, from the South African National Congress was Professor Kader Asmal, who muted the idea on his installation Professor of Human Rights at the University of the Western Cape in the 25th of May, 1992. Now, as with everything in South African history of recent origin, I spec beyond that, there’s always the view as to who is the person who did it. You know, there’s so many people who wrote the South African constitution, that we must have about 150 of these documents. ‘Cause so many people lay claim to that. And it’s also true that it’s quite difficult to know precisely who effectively thought through the idea of a truth commission. But I do think that Kader Asmal’s inaugural lecture got the people thinking. Many people at that time, thought this was a poor idea.
Because one of the issues that ensued from that truth commission, was amnesty. For those who had committed apartheid crimes. The journalist Sean Johnson, wrote at the time that it has to do, that the objection has to do with the solar, sorry, the process has to do with the soul of our nation of remembrance, of things past, of forgetting for the sake of the future. At its simplest, a general amnesty would mean, erasing the national memory. It would virtually ensure that the huge book of unsold political murders remains shut. South Africans would never know who killed or whom, whether the state was directly involved or not. And what form the intervention of security forces, Mavericks were taking. In similar fashion, the head of the lawyer, sorry, of a group called Lawyers for Human Rights. A very courageous man called Brian Currin, also spoke in similar fashion, saying a blanket amnesty against prosecution, is a denial of the right to South Africans to the history. We have the right to know the nameless and faceless torturers. And assassins, through whom an unjust system of government has been upheld, for the past four decades. But nonetheless, despite all of that, despite these protestations, which were certainly based on principle and raised agonising moral questions. I hope you would agree. When we got to the first constitution, the interim constitution. Which I explained to people in my lecture on the Constitution. The constitution that got us through the early stages, until we could have an election. There was no question, that there was an agreement of some sort to have a dealing with our history. Which was not going to be through the form of criminal trials. And so in the interim Constitution, the following was stated. In order to advance reconciliation and reconstruction, amnesty shall be granted in respect of acts, submissions and offences associated with political objectives.
And committed in the course of the conflicts of the past. To this end, parliament under this constitutional should adopt a law, determining a firm cutoff date. Which shall be a date after the 8th of October, 1990. And before the 6th of 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. So, the fundamental point was, that in the interim constitution, an agreement was reached. As to the fact that we would grant amnesty. Provided there was proper disclosure. I shall explain that presently. Of course, the fact that we had that in the interim constitution was not enough. What about anything else? And it was as a result of the commitment not to go the political trial route, that eventually a piece of legislation was passed, which constituted or created the Truth and Reconciliation Commission of South Africa. Now, just to give you an indication of what it meant. Let’s have a look at this first particular clip. Emily, if you could put this on.
I now declare that the hearing of the Truth and Reconciliation Commission is now in session.
[Faizel] People taking photographs. Television cameras all over the place. And suddenly I realised that this was a major undertaking.
[Nickolaus] Dr. Fazel Randera served as the deputy chairperson of the Commission’s Human Rights Violations Committee. He heard hours of testimony about some of the worst acts committed during the country’s violent past. All in a bid to heal a fledgling democratic South Africa.
As we came to understand our mandate better, we said that reconciliation is a process. That what South Africa and South Africans could not do any longer, was to say that this did not happen.
[Nickolaus] It was often a harrowing exercise. Bearing witness to accounts of brutal and inhumane acts by their apartheid regime, and liberation forces.
You know, the Archbishop of course broke down. I think many of us at that Eastern Cape, if the cameras were really trained on on us, would’ve noticed that there were tears coming.
[Nickolaus] Dr. Randera believes that TRCs goals have been partly achieved. But he’s disappointed that many who didn’t receive amnesty haven’t been held to account legally, for their actions.
I know that within the Justice Department, they set up TRC desk. But you know, I mean, we are still questioning, why so many years after the TRC, there’s only talk now of prosecutions.
[Nickolaus] Despite this, Randera maintained South Africa should be proud of how the first democratically elected government, chose reconciliation over retribution.
From where we were in 1994, and where we were before that, to what we are today. I think we’ve done much more than any other society in trying to deal with the skeletons, and the ghosts of our past. And the human rights violations that took place.
[Nickolaus] The full six volumes of the TRC report are available online. And in libraries across the country. Nickolaus Bauer, Johannesburg.
Thanks Emily. That gives you some sense, of what the Truth and Reconciliation Commission, was about. It essentially had two fundamental components to it. There were victim hearings, as an inclusive forum for public truth telling. In the first instance, the process was designed to enable victims of human rights violations, during the conflicts of the past, to tell their own stories. And there were many stories told. Typically testimony at the TRC victim hearings, took the form of individuals recounting the traumatic human rights violations, they or their loved ones had experienced. The TRC developed a methodology, for corroborating the victim statements accumulated in its database. But victims were not exposed to adversarial cross-examination. Within the public domain, And include the forums of the TRC human rights violations hearings. The process enabled, the so-called Truth, and the victims testifying to them, to be public knowledge, that is true. But there wasn’t any significant cross-examination. There were some dramatic moments. And I’m going to show you one in a moment. Which is incredibly difficult to watch. Certainly if you’re a South African. The second component were amnesty hearings. This was slightly different. This was a quasi-legal tribunal, for assessing the disclosures required for an applicant to get amnesty. An applicant for amnesty, which meant that they wouldn’t be prosecuted, was required to fully disclose their past political offences. Typically testimonies at the adversarial at the Amnesty hearing, took the narrative form of individuals recounting the incidents for which they were seeking amnesty.
This was a very constrained form of truth telling. With very few exceptions, amnesty applications. Applicants were reluctant to tell the truth about gross violations of human rights, in which they had been involved. And were cajoled into doing it by the TRCs Carrot and Stick approach. Their statements were prepared with the assistance of lawyers. They were subject to cross-examination by legal representatives of the victim’s concerned. The outcome of these amnesty applications were determined by a quasar judicial process, presided over by a judge. So we had two areas. There was the victim truth telling if you wish. And there was in some instances people coming before the truth commission to be confronted by their victims. And then secondly, there were amnesty applications, in which if assuming that you had committed an atrocity under apartheid, and were able to show that it was for a political purpose or particular kind, and you disclosed it fully, you could get a form of amnesty, which prevents you from being charged and convicted of a crime. There can be no doubt that the most dramatic part were the few instances, where members of the South African security police, did testify before a hearing, and were confronted by the victims. None more searing, then the following awful clip, which I play, because I think it was about the most dramatic of the whole of the TRC where a policeman called Benzene, was confronted by people he tortured. And perhaps this was one of the most dramatic moments of the entire truth and reconciliation process.
On the Saturday, I assaulted you.
[Narrator] No one could could predict what would happen when victims confronted their torturers.
Do you remember saying to me that you are able to treat me like an animal or like a human being. And that you treated me depended on whether I cooperated or not?
I can’t remember it correctly, sir. But I would concede, I may have said it.
Can I then also just ask if you remember that while I was laying on the ground, that somebody inserted a metal rod into my anus, and electric or shocked me?
No sir.
It’s not true that you and Kosi assaulted me throughout the trip.
If you say we assaulted you in the Kombi, then I would concede that in all probability I did.
[Narrator] The victims were often blindfolded during their agony.
I’ve never seen this bag being used myself on any other person.
[Narrator] Now with the commissioners looking on, they could see for the first time, exactly how their torturers used techniques like the wet bag to terrorise them.
[Speaker 1] In that way, cutting off the air supply to the person.
[Speaker 2] What kind of man that uses a method like this one of the wet bag to people, to other human beings. Repeatedly and listening to those moans and cries and groans. And taking each of those people very near to their deaths. What kind of man are you? What kind of man is that?
An extraordinary question, don’t you think? And it was that Benzene’s sort of experience was perhaps one of the, sort of… That’s horrific and and seminal moments of that process. So the process gave voice to victims. Of that, there can be no doubt. It, to a large extent did bring South Africans closer home, to a history that many of them had denied. It was documented, I think rather marvellously, by the South African poet. Distinguished South African poet, Anky Krog. K-R-O-G. Who reported daily for the South African Broadcasting Corporation, on hearings. And it was a sort of daily document of what had gone on. It is also true that there were a number of amnesty applications. I have to say myself, that I found some of them very difficult to deal with. I personally had to deal with a man called Niewoudt. An absolutely dreadful torturer, who burnt people. Who killed all sorts of people. Who was responsible for the deaths in the most brutal fashion, of some of the distinguished anti-apartheid leaders. Who I can only think, if they lived today would’ve made such a major contribution to a better society. And have been far better than many of the politicians who essentially followed. And I do remember very distinctly that this man, Niewoudt, had not been given amnesty by the Amnesty Committee. Gone before them, he had explained, you know, the usual situation. That he was following, superior orders, et cetera. And the committee didn’t give him amnesty. He came before three of us, three judges. And to my utter amazement, majority of my colleagues too, found that he should be given amnesty. I wrote a minority judgement , which of course went nowhere because he did get amnesty. Although he died not that long thereafter. And I have to say it was a particularly personal judicial experience of just how fragile the amnesty process was. And to a large extent, how it didn’t really work to the extent that it should. Now we could evaluate the Truth Commission in many ways. I’m going to play you a clip, which seeks to do that. And then I’m going to make a number of comments thereafter.
[Thabang] The Truth and Reconciliation Commission, designed to offer healing after gross human rights violations, committed during apartheid. But 62 year old Elizabeth Mokoena says, the process only deepened the pain of her loss. Her husband, David Madidi disappeared in 1993. She says she still doesn’t know what happened to him.
[Female Speaker] The TRC destroyed our dignity. It didn’t respect us as the bereaved. The TRC should have given us dignity. Reparations as promised, so that our children could go to school. Maybe then, we would’ve seen the value of the TRC.
[Thabang] Kulumani Support Group claims that many who took part, say the TRC did not live up to their expectations.
The general feedback is they were had done by the TRC. None of its recommendations came to fruition. None of what was understood, and what was expressed or articulated before the process began. But now that is not in the past, it is still in the present.
[Thabang] Yasmin Sook was part of the team that wrote the final report. Handed to then President, Thabo Mbeki. She says the TRCs successes have helped South Africa as a nation. But she says, she believes one if its biggest failures was its focus on civil and political violations, neglecting social economic rights.
We should have focused on the structural policies of apartheid. Land, and what that meant for black people. Education, and how poor the Bantu education system was. Because if you look at all the problems that we are sitting with today, these all go back to the apartheid period. Then of course, if one looks at the question of access to the economy, 60% of our people is still locked out of access to the economy.
[Thabang] Sooka believes South Africans should empower themselves with lessons from the TRC. And guard their human rights fiercely. Thabang Masanabo, Johannesburg.
That just gives you a taste of some of the problems. And I now need to dissect these. In a lecture of this kind. I think the first thing to say, is that we couldn’t have had Nuremberg trials. Of that I think was no doubt. I do remember out of interest the Canadian ambassador to South Africa in the early 1990s, who was a really nice thoughtful man. And in fact, I remember anecdotally, that he brought out Pierre Elliot Trudeau. And when I was the director of the Centre for Applied Legal Studies at Wits, I was asked to arrange a lunch for Trudeau, and a whole group of us, who were drafting the Constitution at the time. It was a wonderful occasion, because Trudeau actually lectured us for about a half an hour. He is a very smart man. Of that, there was no doubt. And basically telling us what we should do. George Bezos, who was this legendary South African council. Who was not somebody who was intimidated by anybody. At the end of the half hour, and I think Trudeau thought he’d had enough. And, he, you know, he’d told us what he wanted to. And effectively is about to pack up. George said, you’re talking a lot of nonsense. You understand the Canadian system but not ours. And yes, whilst we will borrow from the Canadian constitution, you have to understand, because the structure of it does talk to us. The fact is we are very different to you. And he rattled off a whole series of reasons. Including one of the difficulties of having to deal with the past in the way we did. Trudeau was so struck, by the fact that George had chastised him the way.
The lunch went on for another three and a half hours. Of very, very interesting debate about constitutions. That ambassador, then called a little later, for Nuremberg trials in South Africa. And because he really was a to do man, Brian Mulroney, he was then the Canadian Prime Minister, conspired with FW De Klerk to have him removed as the Canadian Ambassador, South Africa. Which we all thought was a terrible pity. I understand that he went on to become the Canadian ambassador to Russia in a different administration. But the point was, we couldn’t have had Nuremberg trials. That was just not on. So, the question then, was what to do? And I think there are aspects in the Truth Commission, that absolutely were essential. You’ll recall, those of you who listened to my lecture on the Constitution, that I made reference to the Azapo decision of the Constitutional Court. To recap that again, that was a decision… That was a case brought by Steve Biko. And again, to emphasise, a man who was a leading black consciousness thinker. A young and unbelievably talented, who would’ve again, an made enormous contribution to the future of South Africa, had he not been murdered by the security police. His family, and the Azanian People’s organisation, a political party. They sought to have the TRC Act set aside, because of the amnesty provisions. In other words, they argued, that the inability, their inability to bring a criminal case, against people who had murdered their father, their husband, et cetera. That was in breach of the South African Constitution itself, and in breach of international law. And therefore should be set aside by the constitutional court. The whole point of the Constitution Court said however, was that the post amble to the Constitution. The paragraph I read out, about the Constitution providing for amnesty. And for some mechanism by which this could be achieved, was essential to the settlement of the entire process. And not withstanding the court’s clear recognition of the pain and the veracity of the case brought by the Azapo and by Mrs. Biko.
The court found that it was absolutely constitutional, to have gone through this route. I think when you read that judgement , as I did the other day, much of it was predicated on the notion. But the court thought that if it had set aside this process that I’ve outlined for you, this evening, the entire movement from racist autocracy to some form of non-racial democracy, would’ve been so significantly jeopardised that it would not have been possible to achieve what we did. And the offence almost pragmatically, was determined to save the truth and reconciliation process from a legal annihilation. And I think that their insight was correct to this extent. That we needed a mechanism, such as the TRC to get us through that transitional period. It was however incredibly imperfect for all sorts of reasons. Some of which haunt us to this very day, as the Commissioner Yasmin Sooka, who was on the TRC herself conceded in the clip you have seen. In the first place, I think it’s important to emphasise that we never got a full truth. It is true that we had victims who came and confronted their torturers, as I indicated in the Benzene case. It is true that many were able to come before the Truth Commission, and tell their stories in public. Something which had been denied to them by 300 years of racist and oppressive rule. No question about that. Just to a considerable extent run as it was by two clergymen. Archbishop Tutu, who was the chair. And Dr. Alex Bahrain, who himself had been a Methodist minister before going into politics. There was a sense of a kind of a religious process of almost a confession, if you wish. Rather than the sort of more forensic kind of legal process, which might have extracted more. Particularly from those who were perpetrators.
Let me give you an example. The De Klerk came before the TRC, I think on two separate occasions. In which long statements were read out, with regard to what the National Party was supposed to have known or didn’t know. We really never got any real finding about how many of those cabinet ministers and upper ruchniks, were themselves responsible for that which had happened. Lower people, as it were constantly were held to account, but never the politicians. It was a very unsatisfactory process, from that particular point of view. The second component was this. That if you did not apply for amnesty, because therefore you weren’t prepared to acknowledge what you’ve done, or if you failed, you didn’t. The idea was that you could be prosecuted. And if you think about that, that’s really very important. That there should have been criminal prosecutions of people who essentially were culpable. That never happened. It’s very interesting that we’ve had a couple now of cases very recently where inquests, which were farces, and in which National Party upper ruchniks were essentially led off the hook by magistrates who themselves, as it were, the sway of the government. They’ve been set aside. I’ll give you an example. There’s one of Imam Harun, who was murdered by the security police who claimed that he slipped on a piece of soap and fell out the building. Or some sort of bizarre explanation. And the magistrate presiding over the inquest, refused as it were, to make the obvious finding that he’d been brutally tortured and murdered.
That finding has now been set aside in the Cape High Court. And of course the question is, now these people who who performed these acts are either dead or so old that the question arises to whether anybody can be prosecuted. So, the law did not take on the kind of rigorous process of accountability that it should have. And it’s all very well, having some form of truth or not, even though it’s imperfect. And even that truth, as I indicated, seemed to be crafted by the TRC in a particular way. And therefore raising profound questions as to whose truth and whose narrative was perpetuated. I mean, to give you another example, there were certainly cases of brutal torture by the ANC in the camps which they ran, in parts of Africa. And whilst it’s perfectly true, as I noticed Peter Beinart, in an article in the New York Times that I read this morning. Talking about the difference between Gamas on the one hand, and the ANC on the other. And that the ANC’s conduct towards civilians were such that they tried very hard not to kill civilians. And when they did as Bainart points out, they sort of made an apology about it. But it is also true, that many of their dissident members were brutally tortured and murdered in various parts of Africa. They therefore did have quite a lot to account for. And that too is alighted over. And that’s not unimportant. And as I say, what is equally important is that very few prosecutions, if any, took place. And that has been a constant complaint about the failure of our national prosecuting authority to do the business. And so, and then we come to the next point. Which was alluded to in the clip I played for you. The question of reparations. Well, we never got, people never got reparations of the kind that they deserved.
There was never any constant coherent plan, to provide reparations for people who were the subject of all of these atrocities. There was talk when South Africa merged into a Democratic State, that we would have a tax. If you wish, a reconstruction tax , not dissimilar to that which would been imposed by West Germany, after the Second World War. We never got it. So, we never ever did what we should have done. Which is to have raised money. Now, I know many of you’ll say, well, when we raise money, look what happens. But, I think here, at the time that this could have been done, that money could have gone into some form of trust, and be used to have paid proper reparations to all sorts of people who had suffered so much during the long dark period of apartheid. That was never done. And of course, as I indicated as well, in my lecture on the Constitution. What was not done, was essentially a process of reconstruction of the society, to ensure that those who had suffered from the crimes of apartheid would at least now be living a better life. And so we do face, seems to me today, the problem that reconciliation is hugely problematic in part. Not entirely be being thrown into the dustbin. There are parts in which it is true, that South Africans haven’t done too badly. But reconciliation does not mean Mr. Mandela walking on with a springbok rugby shirt at the World Cup in 1995. It did mean, it seemed to me, that by actually holding accountable those who had really destroyed South Africa over a long period of time, and actually focusing greater attention on victims who are literally left to their own resources. We may have achieved a greater sense of reconciliation than otherwise would’ve been the case.
So what therefore is the lesson we learned from this? I think we learned the lesson, which is now being learned in many countries, that you cannot possibly just have a truth commission, which allows people to come and tell stories without at least this. Some form of criminal prosecution for those who are exposed for egregious crimes. And we failed in that direction. I think the second thing one learns, is that we never really took seriously the victim’s plights. So, that we didn’t organise a tax, that I think should have been passed on South Africans that could have afforded it, in order to address this problem. And I think too much of our history lurked in the background. So that it amazes me to this day, that there are all sorts of people, right, on all sorts of institutions, including, it’s not that too long ago, certain members of the judiciary, who I would’ve thought should have been held accountable for much of what they did, by sitting on commissions of inquiry, which exonerated the apartheid government where a proper set of findings might have prevented deaths, et cetera. It’s also true that the business community did not really come up to scratch on this particular regard. And it’s interesting going back to the judiciary, that there was a big debate within the judiciary, as to whether the judges should go before the Truth Commission. Significantly, even Arthur Chaskalson Ismail Mahomed, two of our greatest judges, actually thought they shouldn’t. And all that was done, was to provide a certain memorandum to the Truth and Reconciliation Commission. Rather than being subjected to hearing as to what the role that the judiciary had played, over a long period under apartheid. In getting us into the position we had.
And if you’re interested, it was an interesting short book, by the very distinguished South African legal philosopher. Lives in Canada, David Dyzenhaus, who wrote precisely a critical commentary on this particular state of play. So therefore, to sum up, I don’t think we could have got through the transition without this mechanism. But the mechanism was extremely flawed. It didn’t produce all the goods. And we should think about it now in that sort of very positively critical way of saying, well, we got through that, which could have been much more violent. But on the other hand, we failed in many of the objectives that the TRC was supposed to design. So, let me end there, because I see there quite a few questions, and we’ll deal with those.
Q&A and Comments:
David, you say, as I mentioned in your talk on the… I don’t think you mean the construction, I think you mean the Constitution. I think that the whole structure of the Truth Commission and the outcomes in terms of justice favoured the perpetrators. And placed the victims at a disadvantage. Just because perpetrators were reluctant to own up, does not mean in time the crimes couldn’t be dealt with in due legal process. In this respect, justice was denied for the victims. I could not agree with you more. I could not agree with you more. And that’s what I’ve been trying to say, David. It’s really important that I think people realise that. And I just want to say, that I think that these various inquests that are taking place now, where the murders were essentially glossed over by magistrates. Who either were just negligent or worse than that. And the truth is being restored by judges, is important to the families. As one noticed with the Roon case, in particular very recently.
Q: Rabbi Colin, you say, what was the thing, mind your sense, that neuro trials would’ve been inappropriate?
A: The only reason I say that, Rabbi, is that we were in a position in 1991, when, or 1990 when De Klerk made his famous speech. To say, you know, enough’s, enough now. We may have regarded these organisations as terrorist organisations. And we may have banned them, and refused to talk to them. And say that, and we claim for all this time that we couldn’t do business with them. But once it was opened up, the reality was, that neither side could, as it were, force the other side, into just following their lead. So, on the one hand, the National Party were unable to crush the ANC, militarily or any other. Or particularly politically. Politically and socially. And the ANC were not going to win a military victory. But the anxiety for the ANC as they got in, and for those of us who were democratically aligned, was that if you were going to threaten a whole bunch of Generals and Colonels and goodness knows what else. At that stage with Nuremberg trials, they probably would’ve used the army and their military superiority, to have perpetuated the violence for a lot longer. And so the sense was that the balance of political forces were such, that imposing Nuremberg trials on those who had not been militarily defeated was hugely problematic.
Hello Harris, thanks for saying hi. Expand a little in your comment. I’ve just done that, repeated that.
Q: Rabbi, do you see any panels of upper party, upper strengths not being held responsible? What happened under apartheid, might happen in Israel after the events of the Gamas attack on Israel?
A: Boy, you’re asking me a terribly difficult question. I’m not quite sure. For me, if there was ever, if we ever got to a position, and please God, that the Almighty should get us there or anybody else for that matter. Where there’s peace in the region. It seems to me that we probably will have to have some form of accounting for what happened. I certainly think, unlike Gamas, of course, bearing in mind they’re a terrorist organisation. You know, they couldn’t care a damn about accountability. But I’m quite certain that we will have a similar set of inquiry on the part of Israel, as took place after the Yom Kippur War. And that in a sense, will in a sense restore some accountability.
Q: Eileen, on my first of three visits to South Africa in the early nineties, TRC was ongoing every day. The front page of the newspapers, full of testimony of victims. And admissions of perpetrators. Did the victims really feel healed by this process?
A: I was in Chile during its TRC for its disappeared. South Africa taught the childrens how to conduct commission. Its purpose is important. You’re quite right. There’ve been many truth commissioners, Eileen. And ours wasn’t the first. And we learned from others. There was an international discourse, which unquestionably promoted, as I indicated in Professor Du Toit’s book, as he mentioned in the quote I gave. Many truth commissions from which South Africa always drew. I do think, I don’t think victims felt totally healed for all the reasons I’ve advanced. And yet I can’t but help, as I say, thinking that to least this extent as the Benzene example, there was an alteration of power. In which people who had never been listened to before, and who were basically black and poor, at least were able to tell their stories. And I do not want to discount that at all. Louise, it’s solace to listen to. During these times without words being possible, someone else to, on Thursday, judge Rabinder Singh and Baroness Helena Kennedy, both spoke at Darty Street chambers. Not about Israel and Gaza, but their presence and words was solace. I’m grateful for their friendship, and for your wisdom and time of uncertainty. You know, Louise, it’s extraordinarily difficult to actually find words to talk about the situation now. And I find myself, you know, getting more emotional, each time I think about it. But it’s absolutely correct, that this is a time, when people of goodwill, and people who believe that there will be, that the sun will come up, can continue to talk to each other. And that we Jews, who have had a terrible time of it. And which unquestionably last week, revisited the pilgrims, which have blighted our history throughout the vicissitudes of our history. Replayed that in our own minds. And I think, you know, in a sense of holding onto each other, not unimportant feature. I should say, I’ve found giving all of the lectures that I’ve done subsequent to last week, incredibly difficult for that reason.
Howard, is applying principles of restorative justice.
Q: Did amnesty require sincere?
A: No, that’s the point. It didn’t. You didn’t have to have a sincere expression or regret. And the reason was, that all you were interested in trying to do, was to say this was done for a political purpose. Be honest about what was done. Tell us how it was done. Who ordered it, et cetera. The regret was not a legal requirement to get amnesty. And the reason for that, was so much more about truth. Than in a sense… In that instance, rather than restoration. Many people felt that was wrong at the time. But, it really made it quite easy and surprising how few people actually still took it up, because of the fact that most of them almost refused to take any responsibility at all. And simply blamed others.
Q: Michael, how come that while you were involved, did you in fact bring up the idea of tax?
A: The taxes reparations was… It’s true. I was on a commissioning inquiry called the Cats Commission. But that issue of reparations did not come up before us. It came up before. There were people who floated it, right through the early 1990s. And the government really, wasn’t particularly interested. I mean, one of the ways in which it could have come up, was by form of a wealth tax. And whilst that was unquestionably muted, through our early commission of inquiry. The government at that particular point in time, showed no interest in this particular initiative. Would perpetrators have told the truth if they knew they could be prosecuted? Probably not. But the question was, very few…
Bill, did tell the truth, and my preference would’ve been. And of course if they didn’t tell the truth, they would’ve been prosecuted. So, the whole idea was to say to them, the charities come and tell us what was done. Show us why it is for a political purpose. And be gone with you. It didn’t happen to the extent that it should.
Barbara says, I went to the hearings when they were in jail. Saw Winnie give evidence about her role in the Stompie case. When Tutu put his head in the table and cried, when she refused to say anything. Yes, he was absolutely mortified by that. And he was mortified about that, because he knew, I suspect, exactly what I discussed with Johnny Steinberg in that fantastic book of his. In which he canvases the Stompie area. And he canvases even more so, the murder of Dr. Asvat. Who was truly a remarkable man. And whom Johnny Steinberg, I think correctly shows, when he was implicated in it. And Tutu knew that. And that was the tragedy for him. Josie says, in the TRC State Defence books and Conspiracy Army raised killing Lesotho, Zimbabwe, Botswana. There was no direct SADF input to the TRC. And of course you’re quite right.
How Craig Williamson got amnesty. Lord alone knows. And I too make no comment about that. Say for this, I do make a comment. That is precisely that kind of person. He looks around South Africa now. And I use that word advisedly, with impunity. When you think of what he did, to many people who were my friends. To people who he conspired, to ensure were murdered. And example Ruth First, is a good example of that. It’s extraordinary. And I don’t think that you ever actually come to terms with your history until you deal with those points. Which is precisely something I’ve been arguing.
Michael says, please come that many Jews suffered when helping Black to get liberty. And yet the South African Government Day is very anti-Israel. Well certainly Michael, the South African, the Jewish… Let me put it this way. The South African established Jewish community, did not do a hell of a lot. Let’s be quite frank about it. That there were many Jews, who were very courageous during the apartheid era’s obvious. The fact is, that every single white person who was at Rivonia with Nelson Mandela was a Jew. The fact is that there were, and it’s interesting, they were reform rabbis rather than orthodox rabbis. I think of Rabbi Weer. I think of one or two of the other rabbis, who were kicked out of South Africa. They were very courageous, in relation to this. The fact that the government, I mean the fact that, Mr. Ramaphosa yesterday, whenever it was. Could have aligned himself entirely with the Palestinians causes one thing, that he did not make one word of mention, not one word of mention. I mean, you know, he’s right. If he wants to say that the ANC support Palestinian freedom. That’s an issue. And that’s an issue, which I think for me, he’s entitled to say. But he obviously from my position. But what I thought was astonishing was that he did not say a word about the murder of 1300 Jews, Israelis. Most of whom were civilians. That not a word was said about that. And that seemed to me, to indicate the most disturbing phenomenon, that therefore in that particular lexicon, Jewish life doesn’t matter. And I have to say, I’m deeply disturbed by the fact. As I said, I would support his arguments. Whatever he says. He is entitled to his view in relation to the broader question. But to actually not say a word about this, is not just anti-Israel. It’s something far more than that. And I’m deeply disturbed by that.
Daniel Boon Boom a statement, Josie, I always thought that Vine Orchestra was fantastic. And, actually for those of you, who, like me, would love to see bridges built across the aisle as it were. The work of Edward Said is not unimportant. Should be red. The Israeli government helped the apartheid government selling Army teaching. It is true, you’re quite right, that the link between Israel and the Apartheid government in particular, and in places like the Ciskei, were deeply disturbing at that point in time. That is a point of history, that one has to have acknowledge.
I think that’s about it. Thank you for many of controversial questions. Which have probably got me into trouble. But I think we should have earnest answers about these points. And I do think we could all learn from this history of the Truth Commission. Do have a good evening.