Issued by: Truth and Reconciliation Commission
December 9, 1996
AN OPEN APPEAL TO POLITICAL LEADERS AND POTENTIAL AMNESTY APPLICANTS
(from Archbishop Desmond Tutu, Chairperson, Truth and Reconciliation Commission)
One of the most significant dates in the life of the Commission - the deadline for the submission of amnesty applications - is less than a week away. There still appear, however, to be a number of misunderstandings about the amnesty process, which are shared by some political leaders or former leaders.
The confusion, particularly so close to the deadline date, could seriously undermine the potential of the amnesty process to help us reach the truth and thereby to bring about reconciliation in South Africa.
Much of the confusion centres on two issues: - Many appear uncertain about whether or not they should be applying for amnesty; - There is a widespread misconception that the only people who need to apply for amnesty are those who committed gross human rights violations as defined in the Act, or who acted outside the authority of the State or the policies of their political movement.
On the first issue, we have had appeals - from political leaders among others - for advice about whether people should apply for amnesty. There has even been a suggestion that we should set up a service for those who are uncertain, the purpose being to give advice on whether or not they should apply.
We cannot give advice to individuals on whether or not the specific actions they have been involved in are actions in respect of which they should apply for amnesty. Giving such advice would involve pre-empting the role of the Attorneys-General by saying whether or not people might be charged for such actions. It would also involve pre-empting the courts by saying whether or not people who were charged would be convicted.
As a result, we can say to individuals only that they should apply for amnesty if they have done something which might result in a prosecution or a civil action for damages. We cannot give them a firm assurance that their actions fall in that category or not. Instead we urge them to realise that people who do not apply for amnesty do so at their own peril. They may be criminally charged or be liable for civil damages. If they are in doubt it is obviously better to be safe and to apply.
The second issue is rooted in the mistaken importance that has been attached to moral issues in the amnesty process. The Act is very clear that amnesty is for anyone who has done, or omitted to do, anything which might constitute an offence or a delict. The moral quality of the act is irrelevant for the purposes of the Amnesty Committee.. To apply for amnesty is not necessarily to admit you have done something wrong: indeed, you are able to tell the Amnesty Committee that you are proud of what you did, albeit that it constitutes an offence under law. There is no requirement in the law that amnesty applicants should express remorse.
The only relevance which the definition of a "gross violation of question of whether there is a public hearing or not. Amnesty is not only for those who have committed gross violations of human rights. Misconceptions on this issue can be gravely prejudicial to individuals. One example is Mr P W Botha's statement that he is advised that the bombing of Khotso House is not a "gross violation of human rights" as defined in the Act. This statement could lead people who were involved in bombings of buildings where there was no loss of life to assume that they need not apply for amnesty. Yet, accepting for the purposes of argument that such an action is not a gross violation, the bombing of a building is certainly something that can be the subject of criminal charges. It is therefore critically important to take the definition of "gross violations" out of consideration when it comes to the amnesty process.
There also appears to be a belief that amnesty is only for those who have committed acts which fall outside officially-sanctioned orders or policy. Yet Section 20 (2) of the Act specifically envisages amnesty, for example, for a member of the Security forces for actions carried out "in the course and scope of his or her duties and within the scope of his or her express or implied authority .... and which was committed bona fide with the object of countering or otherwise resisting (a political struggle against the State)..." It similarly envisages amnesty for a member of a liberation movement involved in actions "in the course and scope of his or her duties and within the scope of his or her express or implied authority directed against the State... and which was committed bona fide in furtherance of the said struggle."
It is this which led me to advise members of the Security forces in a statement to a newspaper recently:
"Just as we would urge members of liberation movements in general to apply for amnesty for officially-approved attacks, planned from outside the country, against military targets in South Africa, we would urge members of the Security forces in general to apply for amnesty in respect of cross-border operations."
Political leaders have a critical role in ensuring that the country exploits to the full the potential that the Promotion of National Unity and Reconciliation Act offers for getting to the truth about our past and using it as a basis for promoting reconciliation.
We cannot force anyone to apply for amnesty; the process is voluntary. And amnesty applications are not necessarily essential to our purposes in our search for the truth: indeed, on the basis of the work of our Investigative Unit and Research Department we are hopeful that we will get to a substantial part of the truth - including identifying key figures - even without amnesty applications.
However, we believe our political leaders will be squandering an important opportunity for putting the past behind them if they do not come forward and participate in the amnesty process. There is no instrument in the country with the same potential as this process for ending the accusations and counter-accusations about the past, the recriminations and the political bickering which will plague this country's life for generations to come if you do not seize the opportunity of using properly the Commission which you created.
ARCHBISHOP DESMOND TUTU
Inquiries: John Allen, 082- 452-7859