Special Hearings — Political Party Hearings — 1996-08-19

CHAIRPERSON: Thank you very much.  I don't know whether your colleague leader would want to add anything to that presentation.

MR MESHOE: Honourable  Chairperson, we are ready for questions,  I'm satisfied with the presentation, thank you.

CHAIRPERSON: We are very grateful and now I'm going to ask whether any of my colleagues here want explanations or want to make comments.  Dr Boraine.

DR BORAINE: Thank you very much indeed for a very thought provoking presentation.  Clearly in your own background to this paper, you have a distinction between the role of the Church and the State as both having a place to play and right throughout the centuries this has been a very difficult concept to hold in intention. And I want to put a question to you which has troubled us very much to get your own comments.
 You have said quite a lot about amnesty and have equated that to forgiveness.  Another way would be to talk about pardon, I suppose.  Now in terms of the Act, people who apply for amnesty have certain procedures which they have to go through.  I'm not going to rehearse all of them except to say that it's not a very easy process, deliberately so, but there's nothing in the Act which says that anyone comes seeking amnesty should show contrition or repentance or sorrow, and yet if they meet the requirements of the Act, they will be granted amnesty.  Now you obviously would have a view on that.  We ourselves have discussed this, so let me hasten to say that the members of the Amnesty Committee have seen that some people who have come, even though they don't need to have expressed contrition, have expressed sorrow at what their acts have done to the families concerned.  But there's no need to do that.  In the Act it makes it quite clear that if they meet the requirements, about five or six requirements they will be granted amnesty.
 Now in your understanding of what the Commission is all about and what we are trying to achieve, do you wish to comment on that or respond?

MR GREEN: Thank you for the question Dr Boraine. When the TRC was debated at parliament in the Select Committee of Justice, one must understand there were different political views and different interest groups.  Our understanding of the issue of amnesty is that amnesty is compromise that was made in exchange for a truth commission. I do not think that there would have been an agreement had there not been that exchange.  I think certain political parties agreed that the full truth will be told and they would encourage their members to tell the truth but on the condition that amnesty will be granted.
 Now our understanding on the word of God and what the Bible tells us about forgiveness and repentance and if we should relate it to the process, the present process, is that God grants amnesty but there are certain conditions under which that amnesty is granted and that amnesty is never done at the sacrifice of His just moral order, His justice.  And our understanding of the role of the State is not to grant forgiveness, that is the role of the church, but our understanding of the main, the chief duty of the state is to ensure that justice is maintained, and if a person and this is the ACDP position, if a person takes a life of another person and is given a fair trial, all the witnesses, the whole story is heard and he is found guilty for taking the life of this person in terms of our understanding, and many Christians differ with us, but in terms of our understanding, that's person's life will also be taken, but not by a vigilante group, not by and individual, not by a family but by the organ of the State. That is our understanding of justice.  Now we understand that the justice system, the human justice system as practised all over through the world is imperfect because we are imperfect.  Advocates are imperfect, lawyers are imperfect, constitutions are imperfect.  But I think that's the only, the law that we have presently in South Africa is the only law that we have and it's the only system that we can - although imperfect.
 Now we understand the moral dilemma because there is a need for forgiveness, there is a need for amnesty because if you're going to have the other option of having political trials, what if you find the entire nation guilty? Sixty percent, fifty percent of the nation is guilty and it is shown and it has been proved beyond any doubt that they have in fact violated the rights of other persons.  
 I think there has been a certain amount of wisdom into a certain extent of exchanging amnesty in order to have the full truth heard, but the major moral dilemma that we have is that the granting of amnesty to clearly persons who have transgressed the law would give the impression to the persons outside that there is no justice.  And I think that's the big dilemma, that's the big crises, how do you grant amnesty to a person who has no repentance, who has no spirit of repentance, no spirit of reconciliation, but because of political compromises and in terms of political agreements he has to receive amnesty?  
 Now our understanding is that that is not going to come cheap. That if that process is going to happen, there is still going to be repercussions as a result of granting amnesty to persons who are clearly criminal and who have clearly been criminal in the violations of human rights.

DR BORAINE: I would just like to take that one step further and I'm grateful to you for your response.  The Truth and Reconciliation Commission  has been described as a compromise, and I think this is what you were saying in terms of the interim constitution provision was made for amnesty on the grounds that if a system of amnesty was not instituted, the settlement which came following by the election, a democratic parliament and so on and so on, would never have happened.  Now what some of us are arguing and I think you have a special contribution to make is that if the Commission's part of its responsibility is the restoration of the moral order, then we must ask the question, was it only a political compromise or was it a moral compromise as well?   I would argue that if there had been no settlement, many many more people would have died.  And on the basis of the sanctity of human life, this was not moral compromise but a commitment to life in deciding to have a Commission which would include amnesty as one of its provisions.
 Now I'm not sure whether you, how you and your party would view that?

MR MESHOE: I accept the statement that you have made,  the need for amnesty is there, but what we think should happen as political party is that in the quest for giving this amnesty, the victims should not think that they are denied justice.  That is why we have a problem with giving amnesty to people who are not repentant.  Now if the victim insists on getting justice we see the role of the church to coming in there to counsel the victim and also to show the perpetrator the need for repentance in order to achieve that amnesty.  Now if the perpetrator wants amnesty and they are not repentant and the victim on the other side is demanding justice, and in their eyes they are denied justice, we believe we will not achieve the desired goal.  So the principle of amnesty we agree with it but we are saying, in the process let the victim feel that they have also been vindicated.

CHAIRPERSON: Dr Ramashala.