Unfinished Business of the Truth and Reconciliation Commission (TRC)
Another major programme managed by the FHR is the Unfinished programme Business of the Truth and Reconciliation Commission (TRC). This programme is funded by institutional donors. The FHR’s responsibilities within this programme include coordinating the efforts of various parties seeking justice for the victims of apartheid; funding and overseeing the investigation and prosecution of apartheid-era crimes; and supporting the South African Coalition for Transitional Justice (SACTJ) in their quest for truth, reparations, and criminal accountability for human rights violations during apartheid.
For more information on the TRC-related cases consult the FHR’s website on the Unfinished Business of the TRC.
The Role of the FHR in pursuing the apartheid-era cases
The FHR has, since its inception, funded civil society organizations (CSOs) working in the field dealing with issues linked to political crimes perpetrated during the apartheid period, and was actively involved in advocacy and policy development work around issues related to accountability for past crimes. This has included support for victims’ groups, assistance with investigations and prosecutions, and support for archival efforts. In particular, the FHR has been engaged in the following initiatives:
- In 2001, the FHR assisted the TRC to finalize its Final Report to Government.
- Supporting the Khulumani Support Group – the organization representing victims – to pursue its submission to the Government of South Africa on reparations. It has also supported the preparatory work for their litigation under the Aliens Tort Claim Act in the USA against foreign companies.
- Engaging with the National Prosecuting Authority (NPA) to secure prosecutorial guidelines. In 2005 the NPA published new amendments to the NPA’s Prosecution Policy, which effectively created a ‘backdoor amnesty’ in which perpetrators of apartheid-era crimes could not be pursued. The victims’ families challenged this new policy in court and in 2008, the court struck down the NPA’s amendments, declaring them to be absurd and unconstitutional.
- Supporting litigation against the President opposing his use of presidential pardons to provide another opportunity for amnesty. In 2010, the Constitutional Court confirmed the decision of the High Court to interdict the President from granting pardons to the applicants without considering representations received from the victims.
- Providing the initial grant to the Missing Persons Unit at the NPA in order for the Unit to recruit staff and begin its work. Today, its exhumation work is acknowledged as contributing to truth recovery in the region.
- Supporting the South African History Archive (SAHA) SABC project which led to the digitalization of the TRC hearings ,which are now accessible to all.
- Supporting the rebuilding of the TRC Victims’ Database, which is scheduled to be launched by SAHA sometime this year.
- The FHR retained the services of renowned investigator Frank Dutton who undertook to analyze and review all of the amnesty cases which had come before the Truth and Reconciliation Commission in South Africa. Based on this review, Dutton finalized a ‘priority list’ of cases to be handed over to the NPA. He also helped to investigate a number of TRC cases.
- Supporting prosecutions and investigations into the matters of Nokuthula Simelane, Ahmed Timol, Neil Aggett and Hoosen Haffejee, and engaging in supporting the NPA and the Hawks in the investigation of other matters.
Background to the “Unfinished Business of the TRC Programme”
The Truth and Reconciliation Commission (TRC) was established by the Promotion of National Unity and Reconciliation Act 34 of 1995 (TRC Act) to investigate politically motivated gross human rights violations perpetrated in South Africa between 1960 and 1994. The TRC was a quasi-judicial body designed to provide truth-seeking, foster reconciliation, and make recommendations with regard to institutional reforms and criminal accountability in instances where alleged perpetrators failed to apply for amnesty or were refused amnesty by TRC’s Amnesty Committee.
The constitutional and statutory design of the amnesty process in South Africa specifically envisaged that criminal investigations and, where appropriate, prosecutions, would take place where perpetrators were refused amnesty or failed to apply for amnesty. This was at the heart of the compact struck with victims but has never happened. Several hundred cases recommended by the TRC for further investigation and prosecution have been largely ignored. This is despite the TRC’s emphasis that amnesty should not be seen as promoting impunity but “a bold prosecution policy” should be put in place to hold the perpetrators to account.
The recently reopened inquests into the deaths in detention of anti-apartheid activists such as Ahmed Timol and Neil Aggett have brought into the spotlight information on how both the South African Police Services (SAPS) and the National Prosecuting Authority (NPA) colluded with political forces to ensure the deliberate suppression of the bulk of TRC apartheid era cases. This coupled with the attempts by the Executive to grant pardons to the perpetrators of apartheid-era crimes as well as administratively expunge their crimes, and the failure of the Government to fully implement reparations recommended by TRC, have left the victims feeling betrayed, traumatized and with little hope for justice.
South African Coalition for Transitional Justice (SACTJ)
Initially a loose association of the civil society organizations (CSOs), the SACTJ was formed in 2011 to harness the combined skills, experience and expertise of CSOs working in the transitional justice field in South Africa to:
- Secure the rights of victims of apartheid-era violations;
- Raise awareness of these rights;
- Hold government accountable with regard to these rights ;
- Support efforts aimed at ensuring criminal accountability for apartheid-era crimes;
- Seek reparations for the victims of apartheid.
"Every year on her birthday, [my younger sister] is constantly reminded that now [in 2020] she’s turned 35 that means it’s been 35 years since her father was killed. It also means it’s been 35 years where nobody has been held accountable for the murder of her father”
Lukhanyo Calata, son of the late Fort Calata (a member of the Cradock 4)
Unfinished Business of the TRC Programme Contact
For any queries related to Unfinished Business of the TRC, please contact:
“By not dealing with past human rights violations, we are not simply protecting the perpetrators' trivial old age ; we are thereby ripping the foundations of justice from beneath new generations.”
Antjie Krog, Country of My Skull: Guilt, Sorrow, and the Limits of Forgiveness in the New South Africa