The Truth About the Truth Commission
By Anthea Jeffery
Editor's Note: This article is derived from Anthea Jeffery's book, The Truth About the Truth Commission, published in July 1999 by the South African Institute of Race Relations, ISBN 0-86982-463-5. The article contains a brief overview of issues canvassed more fully in the book itself.
South Africa's Truth and Reconciliation Commission (TRC) was established in 1995 to foster reconciliation among South Africans by revealing the truth about the killings and other gross violations of human rights committed on all sides in the conflicts of the past. Its mandate period extended from March 1960 (the Sharpeville massacre) to May 1994 (Nelson Mandela's inauguration as president).
The TRC's founding legislation requires that it provide a factual, comprehensive, even-handed, and fully contextualized account of these gross violations. It mandates the TRC to identify the perpetrators of violations and hold them accountable. It also authorizes the TRC to grant amnesty to perpetrators on certain conditions, and to assist victims by, among other things, giving them a cathartic opportunity to relate their sufferings.
The TRC found it difficult to complete its work within the time allotted. In 1998, its amnesty committee (responsible for deciding amnesty applications) was given an indefinite period to complete its work. Once the amnesty committee has done so, the TRC is to be reconvened to produce its final report. It plans, however, to add no more than a "codicil" to the mammoth five-volume report it published in October 1998. (Truth and Reconciliation Commission of South Africa Report, 29th October 1998, ISBN 0-620-23085-1 (TRC Report).)
In its October 1998 report, the TRC found the former National Party government (NP) and the Inkatha Freedom Party (IFP) the principal perpetrators of gross violations. To a lesser extent, it held the African National Congress (ANC) and the former United Democratic Front (UDF) accountable for certain violations. It also found that the Pan-Africanist Congress (PAC) had primarily targeted civilians in the course of its "protracted people's war" and was thus accountable not only for gross violations of human rights but also for violations of international humanitarian law. (TRC Report, Vol. 5, pp. 212-49)
Evaluating the TRC Report
On its publication in October 1998, the TRC's report was generally uncritically applauded. Careful evaluation shows, however, that the TRC deserves only a portion of its wide acclaim. It succeeded in capturing some of the horror perpetrated in the name of Apartheid and helped many victims come to terms with their suffering. However, its account of past conflict is fundamentally flawed by both the methods that it used and the aspects of violence that it left out. The TRC's founding legislation makes clear the criteria by which the work of the TRC is to be evaluated, notably: (1) how factual was the evidence? (2) how comprehensive was it? (3) how objectively was it compiled and analyzed? and (4) how well was it contextualized? The TRC, as a statutory commission of inquiry, was also required to make "defensible findings according to established legal principles" and to base its findings on a "balance of probabilities." These requirements give rise to two additional questions: (1) were established legal principles applied? and (2) were the probabilities properly assessed?
Need for Factual Evidence
Victim Statements. The TRC received some 21,300 victim statements, detailing approximately 38,000 gross violations of human rights. (TRC Report, Vol. 1, p. 171) Based on these statements, the TRC implied that it had a large, comprehensive, and reliable body of information at its disposal on which to ground its findings of accountability. This was not the case.
The majority of victim statements (about 19,200 or some 90 percent) (TRC Report, Vol. 1, p. 284; Vol. 5, p. 10) were not given under oath, and few, if any, were tested under cross-examination. (TRC Report, Vol. 1, p. 144) The TRC claimed to have corroborated all victim statements, but did so on a "low level" that excluded the key issue of perpetrator identity. (TRC Report, Vol. 1, pp. 92, 144, 339, 440) It nevertheless used victim statements to make findings of accountability against named individuals and/or organizations. In about 17,500 instances, (TRC Report, Vol. 1, p. 171) deponents gave second-hand accounts of violations experienced by others, many of which must have been based on hearsay rather than personal observation. It is thus questionable whether even 100 of its 21,300 victim statements could pass muster as "factual evidence."
Amnesty Statements. Amnesty applications to the TRC totaled 7,127. (TRC Report, Vol. 1, p. 276) Of these, some 1,340 dealt with gross violations and qualified for public hearing. (TRC Report, Vol. 5, pp. 119-24) However, at the time the TRC compiled its report, only 102 had been heard and confirmed as accurate by the granting of amnesty. At least 1,240 statements relating to gross violations had not yet been heard. The TRC thus reached its major conclusions about culpability for violence when some 90 percent of relevant amnesty statements had still to be considered.
Need for Comprehensive Findings
The TRC's statutory obligation was to provide as complete a picture as possible of the gross violations committed in the past. However, the TRC Report is far from comprehensive. Not only had it still to consider some 90 percent of relevant amnesty evidence (as noted above), but the amnesty statements it dealt with were not sufficiently representative. It received more amnesty applications from ANC supporters than from any other group, but most of these were still unheard when it wrote its report. ( Patrick Laurence, "What the TRC Won't Tell You," Focus, July 1998, Helen Suzman Foundation, pp. 2-5, based on information supplied by the TRC's amnesty committee) Moreover, the killings for which it apportioned accountability (some 8,500) amounted to fewer than half the 20,500 political fatalities that occurred from 1984 to 1994 alone. These further killings have yet to be explained.
Need for Objective Operation
The focus of the TRC's investigation and research was one-sided. The TRC concentrated on certain events and issues and downplayed or omitted others that merited equal consideration-including various massacres. The TRC noted, for instance, the massacre of twenty-three IFP supporters at the Crossroads settlement near Johannesburg in April 1991, but did not examine this further. (TRC Report, Vol. 3, p. 676; Goldstone, R.J., "Report of the Inquiry Conducted by the Committee of Inquiry into the Violence at Tokoza," Commission of Inquiry Regarding the Prevention of Public Violence and Intimidation, Pretoria, 17 November 1992, (Tokoza Report), pp. 30-33) The 1987 KwaShange massacre, among others, it left out altogether.
The KwaShange massacre was similar to the Trust Feed killings, in which a policeman collaborated with Inkatha to attack the UDF (though, in the end, it was eleven Inkatha supporters who were killed). (TRC Report, Vol. 3, pp. 199-201) In the KwaShange killings, a policeman worked together with UDF supporters to attack Inkatha. In the massacre that ensued, thirteen Inkatha members were "methodically executed without a shred of mercy." (State v. Hlengwa and others, transcript of judgment by Mr. Justice N.S. Page, Natal Provincial Division of the Supreme Court, Pietermaritzburg, 11 April 1988, pp. 775, 777) These killings are not mentioned by the TRC at all.
Further, various submissions to the TRC had alleged the significance of the "people's war" the ANC had initiated in the early 1980s. (Both the ANC and the PAC embarked on a "people's war.") According to the police, in an eight-year period, the ANC people's war resulted in some 80,500 violent incidents in which approximately 9,200 individuals were killed and 18,000 injured. The TRC made no systematic attempt to probe these allegations.
Need for Context
The TRC was obliged to explain the motives and perspectives of perpetrators of gross violations, as well as any "antecedent factors" (such as prior provocation) that might have influenced them. It failed to do this in a consistent manner. It went to significant lengths to contextualize gross violations perpetrated by the ANC, explaining (for example) the circumstances in which ANC bombing operations had sometimes gone awry and killed civilians. By contrast, the TRC gave short shrift to the NP perspective that normal legal processes were ineffective against revolutionary violence. It also failed to canvass adequately the question of prior provocation in relation to IFP attacks. The TRC's findings against the NP and the IFP would carry more weight if it had reflected their perspectives and given reasons for rejecting these.
Need for Accord with Established Legal Principles
The TRC acknowledged that it was obliged to make defensible findings on the basis of established legal principles. Such principles required, at a minimum, that it verify its evidence, take account of all relevant information, and uphold basic principles of justice including audi alteram partem. (Audi alteram partem is Latin for "hear the other side," and requires that an alleged perpetrator be given an opportunity to give his or her side of the story.) Such principles also required, as an essential safeguard against arbitrary decision making, the giving of reasons for findings made. The TRC failed, however, to adhere to these requirements. In particular, it generally omitted to cite evidence or reasoning to substantiate its findings.
Findings Based on a Balance of Probabilities
The TRC, as it acknowledged, was obliged to make its findings of accountability on a balance of probabilities. Its failure to give reasons for its findings makes it difficult to assess how well it discharged this duty. In certain instances, however, its findings were preceded by earlier judicial rulings that were based on evidence that had been tested and substantiated. These rulings provide a basis for comparative evaluation.
TRC Findings vis-à-vis Earlier Judicial Rulings
Comparison of TRC findings with earlier judicial rulings shows, for instance, that the TRC sometimes mistook even basic facts, such as the death toll in a well-known incident. For instance, with regard to shootings that took place in Sebokeng (south of Johannesburg), the TRC initially reported that police had killed thirteen people. (TRC Report, Vol. 3, p. 726) However, at other points in its report, it put the death toll at 17, (Id., Vol. 2, p. 585) "at least 13," (Id., Vol. 2, p. 590) and eight. (Id., Vol. 3, p. 29) The judge who presided over an earlier inquiry had found, however, that the police had killed five people. (Report of the Commission of Enquiry into the Incidents at Sebokeng, Boipatong, Lekoa, Sharpeville and Evaton on 26 March 1990, Pretoria, June 1990)
In another incident, the TRC said three lone gunmen killed twenty-three IFP-supporting hostel residents of Tokoza township, east of Johannesburg, in September 1991. (TRC Report, Vol. 3, pp. 696-97) The Commission of Inquiry Regarding the Prevention of Public Violence and Intimidation (chaired by Mr. Justice Richard Goldstone, and commonly known as the Goldstone Commission) had earlier established that the death toll was eighteen. (R. J. Goldstone, Tokoza Report, pp. 8-9) The TRC said forty-two people died in revenge attacks in the next two days. (TRC Report, Vol. 3, p. 697) The Goldstone Commission had found that effective security force action had prevented further killings in the aftermath of the massacre. (Goldstone, Tokoza Report, p. 13)
In this instance, the TRC also misrepresented what Goldstone had said. According to the TRC, Goldstone had expressly found that this attack on hostel residents of Tokoza was initiated by a police informer, Mr. Mngibi Ceba. (TRC Report, Vol. 3, p. 697) Goldstone made no such finding. He noted that Mr. Ceba was a police informer, but he never found Mr. Ceba responsible for the attack. In fact, he made it clear that his commission could not properly name any individual as culpable without sufficient supporting evidence. (Goldstone, Tokoza Report, pp. 13-15)
The TRC ignored other aspects of Goldstone's findings on this incident. Goldstone found that a four-pronged ambush of the hostel residents had been carried out by a self-defense unit (SDU) based at the neighboring Phola Park informal settlement. (Goldstone, Tokoza Report, p. 11) (SDUs were established by the ANC in the early 1990s for the stated purpose of defending its supporters against attack by the police and/or the IFP.) The TRC implied that the three gunmen responsible for most of the killings were the sole attackers. (TRC Report, Vol. 3, pp. 696-97) It ignored evidence assembled by Goldstone that at least three units (of three men each) had been involved. The TRC, moreover, implied that the police initiated the attack to derail the peace process. (TRC Report, Vol. 3, pp. 696-97) Goldstone, however, had made it clear that it was the SDU that had planned and executed the ambush. (Goldstone, Tokoza Report, pp. 11-12) On occasion, the TRC paid no attention at all to conflicting judicial rulings. It stated, for example, that the Shell House shootings in March 1994 of eight IFP supporters outside the ANC's headquarters had taken place in response to an IFP offensive on the building. (TRC Report, Vol. 3, pp. 698-99) Yet, an earlier judicial inquest had found that no such attack had taken place. It had also found that the ANC had fabricated these allegations after the event in order to justify shootings that were unwarranted. (Patrick Laurence, "The Full Nugent," Frontiers of Freedom, No. 16, Second Quarter 1998, pp. 23-25, pp. 24-25) The TRC made no reference to the inquest.
In one key instance, the TRC cited various earlier rulings but then proceeded to repudiate them. This was with regard to the Boipatong massacre of forty-five ANC supporters in June 1992. An international policing expert brought in by the Goldstone Commission had found no evidence of police involvement in the killings. (Dr. P.A.J. Waddington, "Report of the Inquiry into the Police Response to, and Investigation of, Events in Boipatong on 17 June 1992, 20 July 1992," pp. 2-3) A hearing convened by Goldstone had effectively found the same, after allegations of police involvement had proved untrue. (Rian Malan, "A Question of Spin," Frontiers of Freedom, No. 20, Second Quarter 1999, pp. 26-35, p. 29) Based on the testimony of three accomplices and some 120 residents of Boipatong (all of whom denied police complicity), a criminal court had later ruled that the police had not been involved, and had convicted seventeen IFP supporters instead. (State v. Zulu and others, transcript of judgment delivered by Mr. Justice J.M.C. Smit, Transvaal Provincial Division of the Supreme Court, 30 March 1994, pp. 3733, 3831)
The TRC quoted these findings. It then proceeded to find that the police had not only planned the massacre but had also taken part in it. (TRC Report, Vol. 3, pp. 689-90) It cited no fresh evidence to justify this contrary conclusion. The TRC relied, instead, on a report compiled by a monitoring organization, which had drawn up its account within a month of the massacre and on the basis of allegations that were untested and unsubstantiated. (Human Rights Commission, Area Repression Report, June 1992, pp. 50-52)
Sometimes, the TRC ignored even its own prior description of an incident. In describing the "Battle of the Forest" outside Richmond, it noted that twenty-three IFP supporters had been killed in March 1991. It added that the IFP had later killed fourteen ANC supporters in the same area in June 1991. (TRC Report, Vol. 3, p. 294) Its sole finding, in relation to both these incidents, was that the IFP had killed twenty-three people in June 1991. (Id.)
The TRC's mandate, when presented with conflicting versions of events, was to weigh all the evidence available in order to decide which version was "the most probable, reasonable, or likely." (TRC Report, Vol. 1, p. 91) In the instances outlined above, at minimum, the TRC appears to have ignored this obligation. Moreover, it does not explain why these earlier rulings were wrong. Nor does it explain why its contrary findings are right. It simply ignores or tacitly repudiates certain rulings.
Further, by the TRC's own admission, only some of its decisions could be corroborated at all. Others, it explained, were "value laden and could be defended only as value judgments by people of integrity." (TRC Report, Vol. 1, p. 253)
How Much Closer to the Truth?
The importance of truth in promoting reconciliation is frequently acknowledged by the TRC. Only the entire and unvarnished truth, stressed the TRC, could provide a solid basis for reconciliation. "Narrow memories of past conflicts could too easily provide the mobilization for further conflicts," it warned, (TRC Report, Vol. 1, p. 116) while "lies, half-truths and denial were not a desirable foundation on which to build the new South Africa." (TRC Report, Vol. 5, p. 306)
The TRC was, thus, keenly aware of the importance of truth in promoting reconciliation. It implied that it had succeeded in excluding "lies, half-truths, and denial," and asserted that there could be little dispute about how "strong on truth" it had been. (TRC Report, Vol. 5, p. 306)
These claims are questionable, at best. In fact, what the commission has done is to focus on only half the story-and to tell that half in a selective and distorted way.
Anthea Jeffery is special research consultant to the South African Institute of Race Relations. She holds an LLB degree from the University of Witwatersrand, an LLM from the University of Cambridge, and a doctorate in human rights law from the University of London. She is the author of five other books and numerous articles.