The Role of the Legal Profession in the South African Truth and Reconciliation Commission
| Published date | 01 September 2002 |
| Date | 01 September 2002 |
| DOI | 10.1177/016934410202000302 |
| Subject Matter | Part A: Article |
Part A: Articles
The Role of the Legal Profession in the South African
Truth and Reconciliation Commission
Heidy R ombou ts* & S tephan P armentier**
Abstract
In situations of a tran sition t o democracy, the legal pr ofession tends to have a stro ng impact.
While this is quite clear in th e case when cri minal prosecu tions are ini tiated aga inst perpe trator s
of gross hum an rights violations, and when amnest y provisions are enacte d for some violations,
it is far less obvious in cases when a t ruth com mission is set up. The curren t article looks into th e
role tha t the legal profession , i.e. the judiciary, the bar an d the non-g overnme ntal organisa tions,
has pla yed in the noto rious case of t he Sou th African Truth an d Re conciliation Commission
(TRC). It draws on the systems analysis o f political life by David Easton , which id entifies how
dema nds ( input) th at rise in society, ar e proc essed (conversion) a nd pro duce results (o utput),
which pr ovide new inputs to th e political system. This ‘flow m odel’ is app lied t o two sepa rate
processes during the life of the TRC: the Special Legal He aring o f October 1997, and t he legal
challeng es put to the Commission in Court in 1996.
Our analysis reveals a numbe r of interes ting conclusions. One is that the org anised professio n
app roache d th e Special Legal Hea ring from a very legal istic poi nt o f view, d espite the non
judic ial char acter of the T ruth and Re conciliation Co mmission at la rge. This s tands in co ntrast
with the position of the Constituti onal Court, which r ecognised th e lim its of the traditio nal
judic ial system a nd cam e out i n supp ort o f the TRC. Anothe r conclusion is that, althoug h the
part icipatio n o f the jud ges and the magis trates in th e Specia l Legal Hea ring was limited to
writte n s ubmissions, the ir influence prov ed v ery lar ge, as the y t hreat ened the TRC with a
constit utional crisis. Finally, throu ghout the two processes und er review, bre aches became visible
within t he legal pro fession, betw een the ‘progres sive’ non-gove rnment al organis ations an d the
‘conservative’ organis ed profess ion on th e one h and, a nd betwe en the or ganised profession on
the one han d an d the judg es on the oth er ha nd. In sum, it c an convincingly be concluded that
the imp act of the legal profess ion remains qu ite impo rtant when a tru th commission is opte d for
in a context o f transitio n to democr acy.
Heidy R ombouts stud ied law (Lie., 1997) and sociology (Lie., 1999) at the K.U. Leuven
(Belgium). Th is article is an abr idged ver sion of he r Master’s thesis i n sociology, in which she
studi ed the r ole of the legal professio n in the South African TR C and conduc ted interviews to
this end , and which was awarde d the first pri ze of the Flem ish-Dutch Association for the Socio-
Legal Study of Law i n th e pe riod 1999-2000. T he a utho r is curr ently involv ed in a researc h
proje ct on ‘The intern ationa l righ t to rep aratio n for victims o f gross hum an righ ts violations.
A socio-political p erspectiv e’ at t he Ins titute fo r Develo pment Policy a nd Ma nagement,
University of Antwerp (Belgium), a nd also serves as a board me mber of the Flemis h Association
for H uman Rights Ed ucation, (rombouts@ruca.ua.ac.be)
Step han Par mentier studied law (Lie., 1983; Ph.D., 1997) an d sociology (Lie., 1987) at the K.U.
Leuven (Belgium ), and sociology (M.A., 1987) at the University o f Minnesota-Twin Cities
(U.SA.). He currently teaches sociology of crime and law, and hu man rights at the Faculty of Law
of the K.U. Leuven a nd is th e Director of its Law and Society In stitute. Th e aut hor has been a
visiting professor at the Inter national Ins titute for Sociology of Law in Onati (Spain), and a visiting
scholar at th e University of Stellenbosch (South Africa), and is curr ently edito r-in-chief of the
Flemish Yearbook on Human Rights and vice-chai rman of t he Flemish Secti on of Amnesty
Interna tional, (stephan.parmentier@law.kuleuven.ac.be)
Net h e r l a n d s Q ua r t e r l y o f H u m an R ig h t s , V o l . 20/3,273-298,2002.
© N et h e r la n d s I n s t it u t e o f H u m a n R i g h t s (S IM ).P r in t e d i n th e N e th erlan d s .273
NQH R 3 / 2002
1 Introduction
Th e da rk pa st of gross violations of hum an r ights is of ten st aring g loomy at countr ies
in tran sition. In m any case s, the new reg imes will de liberat ely op t for crim inal
pros ecutio ns of the fo rmer pe rpetr ators , at varying levels of resp onsibility . Sometime s,
howeve r, the old elite s still re main to o powerful, an d they m anage to hav e amnesty laws
app rove d that bloc k any fu rthe r l egal action aga inst them . Both prose cution s a nd
amne sty l egislati ons are not witho ut ma ny risk s an d cr iticisms. For this reaso n, t he
esta blishm ent o f a tru th and reconci liation commis sion is fre quentl y look ed up on by
many as ‘the g olden mea n’.1
In ea ch of thes e option s, the legal pro fession plays an im por tant ro le. In t he case o f
crim inal prosec ution, the legal r ationa le de mands tha t gross hum an ri ghts vi olations
be de alt wit h in a strictly legal m anner , i.e. by prosec ution and p unish ment. Whe n
amne sty laws ar e enacte d, it is often t he lawyers and judg es who have to decide wh ether
the condit ions are co mplied with. Wit h the in stalm ent of a tru th comm ission, how ever,
the role to play for th e legal pr ofession is ne ither eviden t nor cle ar, as this is not a lega l
proc ess n or a judic ial bo dy for deali ng with t he pa st. Wha t is the n th e att itude of the
legal pro fession towa rds a mecha nism th at pushe s itself forwar d as a sub stitute fo r legal
mat ters? Do es the e stablis hment of a tru th com mission m ean th at th e legal p rofessio n
is no lo nger inv olved in th e tran sitiona l process i n whic h it used to have a larg e say? Or
is it ne verthel ess trying to have an im pact on the process ? Is it trying to secu re its
terr itory and lim iting th at o f the comm ission? D oes it shi eld its elf off of su ch
comm ission and its way of de aling with the past? All of the se questio ns poin t at o ne basic
ques tion, nam ely what is the rol e of the legal pr ofession w hen a tru th and rec onciliat ion
comm ission is inst alled? Th is is the centra l resear ch que stion t hat will be de velope d in
this co ntribu tion. We ha ve stud ied th e impa ct of diffe rent seg ments o f t he legal
prof ession - the jud iciary, th e ba r an d t he n on-gov ernm ental orga nisation s - in the
con text o f the South A frican Tr uth and Recon ciliation Comm ission (hereaf ter: TR C)
in the peri od 1995-1 998. A lthoug h th e un iquene ss o f every case-study preve nts a ny
blu eprint s, the rele vance o f t his resea rch argua bly surpa sses the So uth African co ntext.
It is cle ar tha t close insi ghts int o the r elatio nship b etween the leg al profes sion an d the
Sou th Africa n Tru th and Reconc iliation Commi ssion ma y offer guide lines for fu ture
tru th c ommissions.
To addre ss the centra l quest ion, we hav e mad e use o f th e frame work de velope d by
the political s cientist David Easton in his Systems Analy sis o f Politic al Lif e} In th is seminal
work, Easto n sea rches f or a gener al th eory to un ders tand politi cal syst ems and the ir
mai ntenan ce. At o ne stage, he studi es m ore specifically th e way in w hich deman ds
(inpu t) that ris e in society, become tru e outpu ts (e.g. thr ough a law-mak ing process), and
how the la tter prov ide new inpu ts to the politi cal system. This dynamic ci rcular process ,
L. Huyse has convincing ly argued th at the way of deal ing with the past is not a true ‘choice’, but
is highly influe nced by a variety of factors, amon g the m th e in ternat ional contex t, th e past
violations o f hum an rights, a nd the m ode of transiti on and t he resultin g balance of power. See:
Huyse, L., ‘Justice af ter Transi tion: On the Choices Successor Elites Make in Dea ling With the
Past’, Law and. Social Inq uiry, Vol. 20, No. 1, 1995, pp . 51-66.
Easton, D., A Systems A nalysis o f Politic al Li fe, Joh n Wiley, New York. 1967, 507 p.
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