This is part of a longer piece about amnesty for political criminals in post-apartheid South Africa. In this selection, I discuss South Africa’s death penalty repeal and the amnesty deal struck between the pro-apartheid National Party and the anti-apartheid ANC.
When the ANC and National Party added an amnesty provision to the South African interim Constitution in 1993, the country was in ruins. Decades of state subjugation, inferior schooling, torture, gang violence and internal political division had devastated black South Africa and would continue to plague the country after apartheid’s demise. Meanwhile, white South Africans had fared a lot better as a whole but had nonetheless endured retaliatory violence every so often from vengeful black South Africans. It was against this social backdrop that all major parties to the conflict, even the privileged white ones, deemed the status quo untenable by the early 1990s and that 68.6% of white voters in a 1992 referendum voiced support for a negotiated settlement to end apartheid. With such strong support, President F W De Klerk and his negotiating partners had the political mandate necessary to effectuate a shift to democracy.
The Multi-Party Negotiation Process at Kempton Park gave rise to the 1993 Constitution demanding “equality before the law,” “equal protection of the law,” “the right to life,” “the right to enter, remain in, and leave the Republic,” a parliament with “the power to make laws for the Republic,” a Constitutional Court tasked with upholding the Constitution, and the adoption of “a law…providing for the mechanisms, criteria and procedures, including tribunals, if any, through which…amnesty shall be dealt with at any time after the law has been passed.” That final provision spawned the 1995 Promotion of National Unity and Reconciliation Act to create a Truth and Reconciliation Commission with amnesty-granting powers.
Post-apartheid South Africa boasted a “forgiveness frenzy” in two big ways: first, the indemnity deal that engendered amnesty materialized under rushed, suspect and indisputably “frenzied” circumstances in order to protect the National Party, and, second, amnesty’s defenders justified their program with a relentless slew of dubious rhetoric about the social value of “forgiveness.” The forgiveness frenzy, in both of its manifestations, rightfully elicited a lot of concern from South Africans unsure of amnesty’s legal and moral legitimacy.
Even though liberationists eventually gained a lot from amnesty, the political demand for indemnity in post-apartheid South Africa first came from apartheid perpetrators who, unlike many of the liberationists, were paranoid about being tried under the new legal system. Thus, amnesty was a cover-up for apartheid’s criminals, not really the brainchild of “ordinary” South Africans, and certainly not a primary demand of organized victims whose lives were destroyed under apartheid. As Chapter 5 illustrates, amnesty was so clearly a capitulation to the National Party that the South African Constitutional Court, in defending the constitutionality of amnesty, outright admitted that the apartheid government probably would not have given up power had there been no amnesty offered.
When parties to the Kempton Park negotiations failed to reach any actionable conclusions on indemnity by the time the conference ended on November 7, 1993, the ANC’s Mac Maharaj and the National Party’s Fannie van der Merwe collaborated at the behest of their party superiors to submit a post-script amnesty proposal to the South African parliament. Because these technical committee members created the post-script amnesty clause after the negotiations ended but before parliament reviewed the constitution, no plenary session of parliament ever scrutinized their deal.
When reflecting on the process several years later in an interview, Chief National Party negotiator Roelf Meyer all but conceded that amnesty was poorly handled at Kempton Park. With a risibly distant, passive voice, Meyer first enumerated the logistical failures, that “there were opportunities to handle amnesty at the beginning that were not taken,” that amnesty was forced to the backburner for most of the conference, that the whole matter was ignored until “the subject was suddenly raised again” at the end of the conference. These logistical failures easily gave way to the deal’s essential moral failure: the task was passed down to two people who, after the conference ended, struck the amnesty deal without the input of the other negotiators. Meyer admitted that the amnesty agreement was compiled covertly but insisted, as if it were exculpatory, that “the Constitution wouldn’t have gone through if the amnesty question had gone to other parties and through the consultation process…” Unfortunately, he was probably correct. It is difficult to believe that any full negotiating body tasked with representing and reuniting South Africa would ever assent to such an agreement.
Upon the plan’s publication, much of the country protested that the agreement unfairly dismissed the other Kempton Park negotiators and the apartheid victims who wanted justice. The Democratic Party “denounced it as a cover-up pact” and warned of its deleterious consequences going forward. How could the new South Africa authentically “reconcile”—that is, come to terms with crimes and criminals past— if the government’s transgressions were swept under the rug from the outset?
Regardless, amnesty’s apologists proceeded to advocate indemnity as a social imperative for the new South Africa. “Ubuntu,” a catch-all umbrella term for “reciprocity, respect for human dignity, community cohesion and solidarity,” became their short-hand justification for TRC-granted amnesty. They used “ubuntu” in their interim constitutional epilogue, declaring “a need for reparation but not for retaliation, a need for ubuntu but not for victimization,” again in NURA’s preamble, and, importantly, in the works of Bishop Desmond Tutu and the Constitutional Court’s decision to repeal the death penalty.
On November 29, 1995, Nelson Mandela selected Tutu, a mild-mannered, ebullient and well-respected theologian and 1984 Nobel Peace Prize winner, to serve as chairman of South Africa’s TRC. A graduate of the all-black Johannesburg Bantu High School, a young Tutu hoped to fight tuberculosis as a doctor but was too poor to pay for medical school. He thus re-directed his energy towards education, another passion, and attended Pretoria Bantu Normal College for a teacher’s certificate that eventually allowed him to work back at Johannesburg Bantu High School. In 1960, he became a priest and spent the next 15 years alternating between South Africa and the United Kingdom to study and teach theology, after which he became the Anglican Dean of Johannesburg and soared to the fore of the anti-apartheid movement. Unsurprisingly, Tutu’s service as Bishop of Lesotho in 1976 and then as General Secretary of the South African Council of Churches in 1978 prompted intense rebuke from South Africa’s pro-apartheid Boer Christian leadership.
Tutu was an authentic Christian votary and proven anti-apartheid diehard whose charisma, credentials and conciliatory disposition were perfect for the TRC. He was a smart choice politically, as his anti-racist track record would cast doubt on left-wing accusations that he was covering up for his racist buddies, and his unmistakable religious commitment to forgiveness would delegitimize right-wing portrayals of the Bishop as vengeful. Although he eventually received substantial right-wing flack for an alleged bias towards ANC criminals and for the procurement of amnesty for his son, Tutu was about as non-divisive as they came in the highly polarized South Africa of the 1990s.
Tutu’s conciliatory ideology was based on forgiveness, a cathartic and mutually beneficial process in which a victim renounces her bitterness towards her oppressor. In one of his most famous quotes, Tutu explains:
Forgiving is not forgetting; it’s actually remembering—remembering and not using your right to hit back. It’s a second chance for a new beginning. And the remembering part is particularly important. Especially if you don’t want to repeat what happened.
This was the Truth and Reconciliation Commission’s moral understanding. The commissioners preached that revelations of truth coupled with amnesty for perpetrators allow societies to move beyond violent histories. It was an attractive concept but, then as well as now, requires much scrutiny.
First, Tutu’s explanation incorrectly implies that the only socially conceivable alternative to granting amnesty is “using your right to hit back.” In reality, most criminal victims request nothing more violent than for their perpetrators’ crimes to be adjudicated and punished under the legal regime. The court’s solution may be retributive, but it is ideally a restorative one that requires the torturer to pay reparations to his victim or to serve the community that he previously destabilized.
It is also noteworthy that Tutu admits that the victim’s freedom “to hit back” is a “right.” Because there is no actual legal right for victims to vengefully hit their perpetrators, we can assume that Tutu is here alluding to victims’ legal right to settle their grievances in court.
Troublingly, the TRC’s amnesty program stripped victims of that right. It would have been one thing for Tutu-the-private-citizen to implore apartheid victims not to bring cases against their victimizers, but it was quite another for Tutu-the-TRC-facilitator to demand with the full weight of the law that people refrain from seeking redress in court. Thus, by turning forgiveness into a heavy-handed state mandate that categorically denied people access to the judiciary, the TRC not only subverted the intimately personal character of the grieving process but trampled the ordinary functioning of the rule of law.
Finally, as valuable as memory is, it is foolhardy to rely on historical remembrance and revelations of truth as sufficient bases for reconciliation. Mere “remembrance” of what happened under Jim Crow certainly did not erase Jim Crow’s lingering vestiges after the 1960s or make right the wrongs that occurred. To those who were tortured, robbed, stabbed, assaulted, humiliated and degraded at the hands of madmen in apartheid South Africa or the segregated American South, the axiomatic and horrible “truth” of apartheid required no further clarification once apartheid ended. Where they were concerned, the truth of injustice instead demanded a tangible remedy and a call to account for those who perpetrated atrocities.
In its 1995 decision to abolish the death penalty, the Constitutional Court similarly misused the “forgiveness” concept to advance an abstract notion of reconciliation in the post-apartheid state. As momentous and laudable as the Court’s abolition was, the reasoning behind it left much to be desired.
Given the welter in South Africa, the Court’s symbolic decision made sense. For a civilization previously based on violence, hostility and anger to divest the judiciary of its killing power was an important transformational move for the nation, one that appropriately put the new South Africa in league with the most civilized societies of the world and moved the country beyond an ineffective punishment of the past. The repeal’s ideological foundation, ubuntu, had an understandable allure as well. It was a religious concept available to all Christians who wanted to make sense of the violence that had befallen South Africa. Procedurally, it allowed for a comparatively simple judiciary process that precluded thousands of criminal and civil cases right off the bat. Politically, as previously noted, it allowed the new government to appear moderate and to mollify paranoid criminals in the National Party. Emotionally, it was supposed to be a way for apartheid’s victims to escape the otherwise intractable anger and bitterness of victimization. Culturally, it based its legitimacy on age-old African notions of justice and an historical understanding of societal reformation. Although the Court’s interpretation of capital punishment in African history might have been “willful romantic naivete,” as Richard Wilson compellingly argues, the Justices had enough social capital and credence to use ubuntu as their moral and judicial undergirding. Even if not perfect, ubuntu fit the bill in every necessary way.
Yet in the minds of most South Africans, justice for the victims of past human rights abuses was far more important than death penalty repeal, such that claims for reparations were common and support for the death penalty in the mid-1990s was “overwhelming.” Thus, by eventually taking an affirmative stance against the death penalty and an affirmative stance for amnesty, the justices seemed to be taking the contrived “forgiveness” point of ubuntu a bit too far, effectively proving that they were willing to forgo not only one kind of punishment for killers but, in some cases, punishment altogether.
As much as the Court’s justices deserve our admiration for working in good faith for the rehabilitation of South Africa, the Court’s moral shortcomings in the S v Makwanyane death penalty decision are glaring. Although capital punishment’s racist and dangerously imprecise applications were certainly enough to merit the punishment’s abolition, the Court’s justices should not have fetishized death penalty abolition to the extent they did. Cognizant that the death penalty had strong popular support in South Africa and, for the time being, an almost unmatched cathartic power for many of apartheid’s victims, the Court nonetheless chose to turn death penalty repeal into an all-out moral crusade, objecting to capital punishment not only because of its practical procedural shortcomings but because of the death penalty’s inherently odious character. The Court went so far as to advance the cringe-worthy proposition that the death penalty is generally on par with the murder of innocents, arguing “that the state should [not] respond to the murderer’s cruelty with a deliberate and matching cruelty of its own” and that the execution of a murderer is a repetition of the murderer’s crime. Invoking ubuntu, the Court argued that their favored African principle “calls for a balancing of the interests of society against those of the individual, for the maintenance of law and order, but not for dehumanising and degrading the individual.”
First at issue in the Court’s critique of the death penalty is the moral parity it subtly draws between the murderer and the executioner, a kind of equivalence that is tempting but deeply flawed. Beside the fact that their actions both end in death, what do murderers and executioners really have in common? The murderer kills an innocent person unprovoked and without justification, whereas the executioner intends to kill a guilty person in retribution and with the sanction of law. The murderer wantonly takes life, whereas the executioner does not. The murderer holds no trial for his victim, whereas the executioner’s team does. As a staunch opponent of the death penalty, I find it discomfiting and unusual to belabor this point, but it is necessary to reject the logical implications of the Constitutional Court’s facile thesis that “execution is murder.” It follows that all imprisonment is kidnapping, that all arrest is assault, that all forced reparations are theft, and so on. By putting most executioners on par with, say, racist and bloodthirsty thugs, the Court’s reasoning sets a morally vapid precedent of treating a judicial response to crime as ethically indistinguishable from the crime itself.
The Court’s decision also implies that one side of the death penalty debate upholds “the interests of society” and the other upholds “those of the individual,” but it fails to indicate which side performs which function. One could very well argue that the child of a murder victim has an individual interest in seeing the murderer executed, but one could also argue that the individual interest in such a case belongs to the murderer who has a human right to life. Similarly, one could argue that there is a societal interest in upholding unbiased retributive justice (i.e. the death penalty), but one could also argue that societal interests require punitive restraint (i.e. abolition of the death penalty). Regardless of how we interpret this part of the Court’s decision though, the “balancing act” proposed here is troublesome, for it presupposes that societal interests are incompatible with individual interests, that we must forsake individual justice in order for society to “move on” and tap into its powers of large-scale social renewal.
As the death penalty decision demonstrates, purveyors of ubuntu sometimes ignored the fact that all societies, South African society included, are amalgams of individuals who want and deserve justice for themselves as individuals. When one person is denied justice, so too is the whole society; when two people are denied justice, the society is denied justice doubly. Thus, the problem with the Court’s decision is not that it repealed the death penalty but rather that it inappropriately defended death penalty repeal as a necessary and acceptable ‘sacrifice’ in the struggle for a new South Africa. If death penalty repeal actually did forsake individual justice, it would not be a worthy sacrifice, for an offense against individual justice is invariably offensive against societal justice as well. The Court disagrees though, arguing that sacrifices of some vested interests may be necessary to advance other such interests, that the subordination of victims’ grievances to “societal uplift” might be, in many situations, inescapable or even desirable. Unfortunately, as fate would have it, this mentality spawned similar ‘sacrifices’ forced upon victims even before apartheid fell.
 “1992: South Africa Votes for Change.” BBC News. BBC, 18 Mar. 1992. Web. 18 Nov. 2014. <http://news.bbc.co.uk/onthisday/hi/dates/stories/march/18/newsid_2524000/2524695.stm>.
 “Constitution of the Republic of South Africa Act 200 of 1993.” (1993): 17.Peace Accords Matrix. Web. 3 Dec. 2014. <https://peaceaccords.nd.edu/site_media/media/accords/Constitution_of_South_Africa_Act_200_of_1993.pdf>.
 Wilson, Richard. The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State. Cambridge: Cambridge UP, 2001. 8. Print.
 Wilson, 8.
 Ibid., 8.
 Mulcahy, Jonathan, Michael Mulcahy, and Pam Christie. “Reflecting on Peace Practice Project.” (2009): 36. Collaborative Learning Projects. Dec. 2009. Web. 18 Nov. 2014. <http://www.cdacollaborative.org/media/53240/South-Africa-Cumulative-Impact-Case-Study.pdf>.
 Wilson, 8.
 Ibid., 8.
 Ibid., 8.
 Ibid., 9.
 Ibid., 9 and 10.
 “Desmond Tutu Is Appointed TRC Chairperson.” Desmond Tutu Is Appointed TRC Chairperson. South African History Online, n.d. Web. 4 Dec. 2014. <http://www.sahistory.org.za/dated-event/desmond-tutu-appointed-trc-chairperson>.
 “Desmond Mpilo Tutu.” Bio. A&E Television Networks, 2014. Web. 13 Dec. 2014.
 Frängsmyr, Tore. “Desmond Tutu – Biographical.” Desmond Tutu – Biographical. Nobel Prize, 1984. Web. 13 Dec. 2014. <http://www.nobelprize.org/nobel_prizes/peace/laureates/1984/tutu-bio.html>.
 Kula, Irwin. “10 Pieces of Wisdom from Desmond Tutu on His Birthday.”Desmond Tutu Peace Foundation USA. Desmond Tutu Peace Foundation, 7 Oct. 2013. Web. 13 Dec. 2014. <http://www.tutufoundationusa.org/2013/10/10-pieces-of-wisdom-from-desmond-tutu-on-his-birthday/>.
 Wilson, 11.
 Ibid., 11.
 “S v Makwanyane and Another (CCT3/94)  ZACC 3; 1995 (6) BCLR 665; 1995 (3) SA 391;  2 CHRLD 164; 1995 (2) SACR 1 (6 June 1995).” Southern African Legal Information Institute. N.p., June 1995. Web. 4 Dec. 2014. <http://www.saflii.org/za/cases/ZACC/1995/3.html>.
The image is available here.