Truth, Reconciliation and Justice: The South African Experience in Perspective
| Author | Kadar Asmal |
| Published date | 01 January 2000 |
| Date | 01 January 2000 |
| DOI | http://doi.org/10.1111/1468-2230.00248 |
THE
MODERN LAW REVIEW
Volume 63 No 1January 2000
Truth, Reconciliation and Justice: The South African
Experience in Perspective
Kader Asmal*
The lecture examines the role and objectives of truth and reconciliation
commissions in societies undergoing major political transitions, with particular
reference to the model of South Africa, and compares this method to others
suggested by international criminal law for accommodating both retributive and
restorative responses to past conflicts and crimes against humanity.
My subject tonight is ‘Truth, Reconciliation and Justice: The South African
Experience in Perspective’. This plainly raises preliminary questions as to the
nature of the South African experience, and what exactly the appropriate
perspective might be.
In brief, the South African democracy born in 1994 succeeded nearly half a
century of racial discrimination raised to a constitutional principle. It was a period
of brutal oppression, hit squads, violent attacks on neighbouring states, and even
research into chemical warfare and eugenics. The new Parliament chose to
confront this terrible past through the establishment of a truth and reconciliation
commission, a body established by an Act passed in mid-1995.1The objective of
this Act was to deepen our country’s factual and interpretative grasp of its terrible
past, going back to 1960.2The Commission was mandated to pronounce on what
had been done by whom to whom, why, and what was to be done about these past
abuses in our calmer present times.
Unlike many truth commissions that preceded it,3our own was not solely
concerned with granting amnesty to perpetrators of human rights abuses. It in
addition gave a voice to the victims4and provided for reparation to and
rehabilitation of victims.5Furthermore, while it indeed conferred amnesty in
respect of criminal and civil liability for human rights abuses, this was subject to
ßThe Modern Law Review Limited 2000 (MLR 63:1, January). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 1
*Minister of Education, South Africa.
This is the text of the twenty-seventh Chorley Lecture, delivered at the London School of Economics and
Political Science on Thursday 4 November 1999. The author gratefully acknowledges the contribution to
this lecture of Louise Asmal, Ronald Suresh Roberts, Estelle Dehon, and Charles Villa-Vicencio, while
acknowledging that the responsibility for the comment and conclusions is his own.
1 Promotion of National Unity and Reconciliation Act 34 of 1995 (henceforth, ‘Act’).
2 Act, s 3.
3 P.B. Hayner, ‘International Guidelines for the Creation and Operation of Truth Commissions: A
Preliminary Proposal’ (1996) 59 Law and Contemporary Problems 173.
4 Act, s 11.
5 Act, ch 5.
various important criteria, notably requirements that there be full disclosure of the
facts surrounding the abuse;6that the abuse be associated with a political objective
(as opposed for instance to motivation for personal gain); and that the abuse was
proportionate to the political goal that it sought to advance.7
Much can and has been said and written about the proper interpretation of the
Act and my remaining time could easily be spent addressing such questions as the
proper scope of assorted statutory phrases. But here we encounter the other key
theme of my address: the perspective. I doubt that, in turning our attention to truth
commissions, we should allow ourselves to get lost in the details of statutory
handiwork. Indeed the entire quest to establish a truth commission is best seen, in
my view, as an attempt to avoid the intrusion of narrow legalism8into the rightly
fluid context of political transitions. This is the proper context, as I see it. We are
concerned not with the limited preoccupations of scriveners, like Herman
Melville’s Bartleby, but rather with the broad brush strokes needed to establish
democracy on a firm footing and to ensure a durable climate for the pursuit of
human welfare. The proper perspective from which to view the South African truth
commission is the age-old quest for a better life for all.
It is, then, in the true spirit of Lord Chorley that I approach my lecture tonight.
He was a renaissance lawyer: passionate about penal and prison reform yet
internationally renowned as a maritime and banking lawyer. His mind was sharp as
well as committed. He was a person who, as the Modern Law Review wrote on his
death in 1978, spent a lifetime ‘building a bridge between academic legal pursuits
and the day-to-day needs of the community . . . For him law was too serious a
human and social concern to be used as an intellectual plaything’.9It was a
privilege to have heard him lecture. As I look tonight at the role of law in the
aftermath of political violence and repression, I could ask for no more exacting
standard than Lord Chorley’s: stern taskmaster; man of compassion.
The quest in our century
From the Hague Conventions at the beginning of the century to ongoing discussions
as it closes about the establishment of an International Criminal Court, our era has
been one wherein people have dared to hope for peace and have found their hopes
dashed, and dashed again. World War I was to be the ‘war to end all wars’. Then
more war came. From national rivalries early in the century to internal and civil
conflicts at its end, violent conflict has become bloodier and more frequent: the
nineties has been our century’s bloodiest decade.
10
Much of this violence has been
6 Act, s 20(1)(c).
7 Act, s 20.
8 For an example of the genre of narrow legalism, see A. Jeffrey, The Truth About the Truth
Commission (Johannesburg: Institute of Race Relations, 1999) 8. The book enlists a whole raft of
legalistic criteria in order to judge the transitional justice process in South Africa, but never argues
why these narrowly legalistic criteria are or ought to be applicable to the kinds of dilemmas that truth
commissions set out to resolve.
9 (1978) 41 MLR 121–22.
10 P. Armstrong, P. Fortier, R. St John, B. Hamilton, A. Lapointe and Mi. Zigayer, Security Implications
of Low-Probability, High-Impact Events – Assessing the Changing Traditional National Security
Environment in the Context of Low-Probability, High-Impact Events (Canadian Government, 1998)
percent of the victims of armed conflicts were civilians, that figure has risen to 90 pecent today. ‘In
the period 1989–95, there were 87 intrastate (internal) armed conficts . .. The peak was reached in
1992 when there were 53 active armed conflicts of this type. Through this period, Asia and Africa
accounted for at least 65 percent of all conflicts’).
The Modern Law Review [Vol. 63
2ßThe Modern Law Review Limited 2000
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