Journal of Law, Policy and Globalization

This paper is drawn from an unpublished doctoral thesis ‘Speaking Truth to Power and the Work of Albie Sachs’.  It endeavours to undertake a limited exploration of some of the implications of Albie Sachs’ role for embedding the legitimacy of the rule of law in South Africa.  It also seeks to analyse some its interactions with the Truth and Reconciliation process and explore the contestation of the concept of the ‘rule of law’.   More specifically, it attempts the consideration of what was a distorted but legalised distribution of power brought about by a warped social system, backed by strong-willed security forces that South Africa presented and also goes on to consider the consequences of the Truth and Reconciliation Commission for South Africa’s political system. [1] It raises the question of whether this impacts on the development of a human rights culture in South Africa.

Historically South Africa in an effort to put its past firmly behind, ‘power’ within it constructed the Truth and Reconciliation Commission process using it as a model for reconciliation and nation building.[2] The origins of this could be situated within the setting up of the ANC’s own internal commissions of enquiry, the Stuart, Skweyiya and Motsuenyane Commissions to address its own internal violations of human rights.  These had formed the basis on which the Truth and Reconciliation Commission (TRC) was set up.  The reports of the Commissions confirmed that gross human rights violations had taken place within the ANC camps.   It is these reports that eventually prompted the promise to set up the TRC, which came into being after the transition to multi-party democracy.[3]

Following a period of truth recovery, the TRC, in October 1998 presented its final report to President Mandela.[4] In the report it buttresses the argument about its attempt to put the past behind.

The President in response made some attempt to locate within the establishment of the TRC, the creation of a process, which allowed people to penetrate the thoughts and objectives of those who inhabited the power structures.  It also drew from various views and positions on why its establishment was considered necessary.[5] This position can be explored with the knowledge of the argument advanced by some that South Africa was faced with the use of a legal framework for what was essentially a spiritual/psychological process.[6]

The process, however, could not be successful if it was considered illegitimate by the people.  I suggest that legitimacy is about the people, including their interests, consent, value system and will.    It could therefore be argued that every law including the constitution must pass the test of legitimacy to have force.  We may venture further to suggest that the people in a republic are the superior force of the land.  That any law, including the constitution, which fails the test of legitimacy, will lose its power and if it remains unrepealed the people may under the doctrine of necessitas no habet legem ignore it by civil disobedience or revolution.

It is in light of the above we explore the preamble of the Constitution of the Republic of South Africa 1996 as adopted on 8 May 1996 and amended on 11 October 1996 by the Constitutional Assembly.  The paper seeks to argue that this forms a starting point in the legitimacy process, particularly the section that recognises and acknowledges the past, where the draftsmen express the desire to reconcile the past with the present and bring together these together as a basis for healing a divided and traumatised society and, also as a means of improving the quality of life of all citizens and in the process freeing the potential of each individual.  That position also seems to be reinforced by the Act No.34 of 1995: Promotion of National Unity and Reconciliation Act 1995. The act lays down the legal framework for the functioning of the Commission, providing for the investigation and establishment of as complete a picture as possible of the nature, causes and extent of gross violations of human rights committed during the period from 1 March 1960 to the cut-off date contemplated in the Constitution.  The implication of these two statutes and indeed others grounding the work of the Commission is the creation of a situation where the South African society simply says to the perpetrators and collaborators of apartheid confess all, your sins are forgiven and there is reconciliation.  If this is the case then we must be asked by what means exactly did the Commission hope to verify without powers of the law courts that all truth had indeed been confessed?  There is doubt whether this can be answered, since it is argued that truth claims in themselves do not flourish in a climate of genuine knowledge, but in a climate of power.[7] John Eldridge argues that there is also the problematic of dealing in a world of unassailable facts, not with provisional accounts.[8]

In order to explore in further detail some groundings of the Truth Reconciliation Commission reference is made to some of the views of its members.   Pumla Gbodo-Madikizela, who was a member of the TRC’s Human Rights Violation Committee, asked:

‘Why is it necessary to lift the veil from our past?  Why not simply erase the page and start all over again?’

Her attempt to answer the question refers back to the enabling act,[9] which enjoined the Truth and Reconciliation Commission to ensure the restoration of dignity to people who have suffered pain and loss through atrocities of the past.  She goes on to add that:

‘The Truth and Reconciliation Commission starts with the assumption that the truth will heal and rebuild a shattered past’.[10]

Some commentators in comparing this model with those of other nations have raised the question whether the South African experiment seems to have been built upon the condition that power engages truth with a view to engendering reconciliation.[11] While others have chosen to describe it as a mechanism perceived by the South African elite as the most effective way to mend their wounds of the past and a means of moving forward in an era of majority rule.[12]

This brings us to the question whether the Truth Commission can be said to be based on a number of presuppositions about political psychology among which is that knowledge promotes forgiveness and that reconciliation flows from truth, and that these were used as a mechanism to exercise control over the agenda in ways which kept potential issues out of the political/decision making process. That is, public exposure of the power behind truth was avoided.

However, this does not fully address issues of legitimacy provoked with the creation of the Truth Commission.  Some claimed that international law and convention forbade granting amnesty for crimes against humanity as well as torture and similar offences.  Their slogan was: ‘No amnesty, no amnesia, justice’.[13]

This issue of the legitimacy of the ‘rule of law’ also arose from a direct challenge to the whole truth and reconciliation process in the case of Azanian Peoples Organisation (AZAPO) and others v President of the republic of South Africa, which was brought before the South African Constitutional Court. It is suggested that these related to the problems relating to the amnesty provisions as laid down in the Act setting up the Commission.  There are those in South Africa, some organisations and individual families, who had suffered very grievously from human rights violations who believed that there ought to have been no amnesty provisions whatsoever.  They wanted nothing more and nothing less than trials, prosecutions and punishment.  More especially they were concerned that in term of the Act those who applied for amnesty and were successful will never again be liable, either criminally or civilly.  Some were even prepared to accept that even if amnesty had to be granted as the price for peace and stability in South Africa there still ought to be an opportunity to bring civil action against the organisation, the state or the individual.[14] In that case the constitutionality of the section was upheld.  The Court conceded that the section limited the applicants' right to "have justiciable disputes settled by a court of law, or . . . other independent or impartial forum".  However, it considered that the epilogue to the interim Constitution (the "National Unity and Reconciliation" section) sanctioned the limitation on the right of access to courts.[15] The decision of the Court confirmed the legitimacy of the process but in doing so put into effect the denial of the normal due process of access to the law courts to the victims of human rights abuses.

The dilemma faced was simply that if people are encouraged to apply for amnesty but remained liable in a criminal court or in a civil court, what is the incentive for their coming forward?  The application did not succeed in court.

Dr. Borraine, the Vice Chairman of the South African Truth and Reconciliation Commission argues that within the restraints of a negotiated settlement major compromises had to be made and he believed that South Africa's Truth and Reconciliation Commission has achieved the best possible outcome.[16] South Africa has decided to say no to amnesia and yes to remembrance; to say no to full-scale prosecutions and yes to forgiveness.  Those who have committed violations of human rights will, if they applied for amnesty, in most instances go free.  In South Africa's circumstances where there was no victor and vanquished, it really has no other alternative but to follow this route.  It should be borne in mind, however, that the administration of the justice process continues.  Already there have been prosecutions and there will obviously be more.  And if perpetrators declined to apply for amnesty they face the possibility of prosecution at some future date.  But it did raise the question of how many such trials can South Africa afford, not merely in financial terms but in the damage that this can do when skeletons constantly fall out of the cupboard, bringing with them further divisions and recriminations.  Indeed what occurred above appears to confirm that power in South Africa deliberately decided to make some exception to the application of the rule of law in other to facilitate a reconciliation process.  How does that seeming expediency affect the legitimacy of the rule of law?

[1] Corder, Hugh (2010)., Challenges to the Rule of law in South Africa download  on 11th October 2013 from http://wwww.freedomunderlaw.org/wp-content/files/Challenges_to_the_Rule_of_Law_by_Prof_ Hugh_Corder.pdfHugh

[2] Ojedokun, Olu (2003)., Interview with Jewish members of the audience at the Jewish Book Festival 2003:

At the Jewish Book festival in March 2003 I was opportuned and honoured to be part of a group discussion with some other elderly Jews.  My contribution/question to them was simple.  If they had been a Truth and Commission style hearing rather than a Nuremberg hearing would they have been healing, would it have made any difference?  They thought that it might because for a lot of them after the trials of a few figure heads the atrocities were swept under the carpet and it is now this next generation that has to deal with it.

[3] Truth and Reconciliation Commission of South Africa, Volume One (1998); Oxford: Macmillan p. 52

[4] Mandela, Nelson (2004); In His Own Words From Freedom to the Future  Tributes and Speeches Asmal, Kader et al pp 133 -136.

[5] Boraine, Alex (1996); Op Cit

[6] Storey, Peter (1994); Paper presented at The Centre for the Study of Violence and Reconciliation conference on 18 August 1994: Making Ends Meet: Reconciliation and Reconstruction in South Africa, World Trade Centre, Johannesburg

[7] See Havel, Vaclav (1987); Living in Truth. London: Faber. p.156 -202 in Vardy, Peter (1999) (ed)., What is Truth?  Sydney: University of New South Wales Press

[8] Eldridge, John (1993); Getting The Message News, Truth and Power London and New York: Routledge p 5

[9] Promotion of Nationality Unity and Reconciliation Act 1995 No 34 of 1995

[10] Gobodo-Madikizela, Pulma (1996); Re-enactment of Old identities & implications for Reconciliation read at the 40th Annual Convention of the institute of Personnel Management, 21-23 October 1996, Sun City

[11] Strategic Choices in the Design of Truth Commissions (2003s. 2 May 2002 avaliable at [http://www.truthcommission.org/commission.php?cid=3&case_x=0&lang=en

[12] Gunnar, Theissen (1997)., Between Acknowledgement and Ignorance: How white South Africans have dealt with the apartheid past. Johannesburg: Centre for the Study of Violence and Reconciliation. para 1.1 - The Impact of Political Culture on the Consolidation of Democracy.

[13] Verwoerd, Wilhelm (1997)., Justice after Apartheid? Reflections on the South African Truth and Reconciliation Commission available at [http://www.truth.org.za/reading/justice.htm]

[14] Azanian Peoples Organisation (AZAPO) and others v. President of the Republic of South Africa, Constitutional Court, http://www.icrc.org/ihl-nat.nsf/0/067632d55386102cc1256b09003f0eac?OpenDocument .  The relevant summary of the case is as follows: “The applicants applied to the Constitutional Court for an order declaring section 20(7) of the Promotion of National Unity and Reconciliation Act unconstitutional. Section 20(7) permits the committee on amnesty established by the Act to grant amnesty in respect to any act, omission or offence provided that the applicant concerned has made a full disclosure of all relevant facts, and provided further that the relevant act, omission or offence was associated with a political objective and committed prior to 6 December 1993. As a result of the granting of amnesty, the perpetrator is relieved from criminal or civil liability. The State or any other body, organisation or person that would ordinarily have been vicariously liable is also relieved from liability.  The constitutionality of the section was upheld. The Court also considered the argument that the State was obliged by international law to prosecute those responsible for gross human rights violations and that the provisions of section 20(7) authorising amnesty for perpetrators constituted a breach of the Geneva Conventions of 1949…………… The Court held that it was doubtful whether the Geneva Conventions and their Additional Protocols applied at all to the conflict. In any case, Additional Protocol I was not binding on South Africa and Additional Protocol II actually encouraged the authorities in power to grant amnesties after the end of hostilities. The Court held further that international law distinguished between international and non-international armed conflicts. For the latter category there was no obligation to prosecute those who might have performed acts of violence or other acts, which would ordinarily be characterised as serious violations of human rights.

[15] Op  Cit.

[16] Strategic Choices in the Design of Truth Commissions. Op Cit.