Statement by Dave Steward to the Conference of the Institute for Justice and Reconciliation on the 10th Anniversary of the TRC: 21 April 2006




Under normal circumstances there should be no right to amnesty since this would create an environment of impunity in which the law in general could be undermined. However, provision is made for amnesty in abnormal situations where there is strong reason to believe that society as a whole will benefit from suspension of some aspects of the law for a specific time or purpose.


There can be no doubt that such a special circumstance arose at the beginning of the 1990s with the commencement of negotiations between the former government and its opponents. Amnesty was, from the outset, a sine qua non for the negotiations between the ANC and the former government that led to the creation of the new South Africa. The former government’s power structure was intact and clearly there would have been no prospect for settlement if there had not been a sure expectation that members of the old order would not be victimised by the new government. Equally, it would not have been possible for members of the ANC and other previously banned organisations to participate in the negotiations had they also not been granted indemnity from prosecution for any offences that they might have committed under the previous dispensation.


The former government originally proposed that the Norgaard principles should be used to determine who should reasonably be granted indemnity or amnesty. The principles had been successfully applied in Namibia and, in general, allowed amnesty for all those who had committed offences in the pursuit of political objectives unless they had made use of egregious or disproportionate violence. However, the former government was forced to abandon the Norgaard principles as the ANC’s price for returning to negotiations after 26 September 1992. The ANC insisted that political motive should be the only test and on this basis demanded the release of more than two thousand of its followers, many of whom had been involved in acts of disproportionate violence, including the Magoo Bar killings and ‘necklace’ murders. Acceptance of the Further Indemnity Act was one of former President F W de Klerk’s most difficult and distasteful decisions.


Unfortunately, the negotiating parties did not conclude a comprehensive agreement on amnesty before the elections on 27 April 1994. However, the final paragraphs of the 1993 constitution state unambiguously that ‘amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past’ (emphasis added). However, the subsequent TRC legislation circumvented the clear intention of the constitution and set conditions for amnesty that were far more onerous than Norgaard or those that the ANC had insisted upon with regard to the release of its own supporters in terms of the Further Indemnity Act of 1992.


In principle, there should be little sympathy for anyone from any side of the conflict who was involved in egregious violations of human rights. Ideally, the Norgaard principles should have been applied to all sides throughout the process. However, they were not. Although we must also be careful not to create a culture of impunity, amnesty by definition implies a degree of impunity but within the context of very specific circumstances. Those who reject amnesty of any kind are out of line with the 1993 constitution which makes clear provision for such a process.


Accordingly, any move to proceed with prosecutions at this stage should take full account of the following factors.


If the National Prosecuting Authority (NPA) chooses to prosecute only those perpetrators of gross violations of human rights from the side of the former government, and fails to investigate and prosecute those from other organisations responsible for gross violations of human rights, it will clearly be in breach of its constitutional obligation to exercise its functions ‘without fear, favour or prejudice’.


If the NPA does not act in a scrupulously even-handed manner it will be difficult to avoid the perception that the trials that would ensue would be political trials. The NPA’s action would be irreconcilable with the constitution’s call for ‘understanding but not for vengeance’; ‘reparation but not for retaliation;’ and ‘ubuntu but not victimisation’.