28/03/2006
George Bizos

The debate as to what is justice has been going on since time immemorial.  Priam sought justice from Achilles when he kissed the hand that had killed his son Hector and then dragged his body behind his chariot.  Was justice done when Achilles ordered his men to wash the body in the river before handing it over to his father?  Plato tells us that the sophists of his generation defined justice as rendering everyone his due.  A few centuries later Justinian the lawmaker adopted the definition.  Innumerable generations of law students have been told that, that is justice.  Socrates questioned the correctness of the definition as have innumerable generations of law students and their professors.  Adding adjectives before the word “justice” has added to the problem.

In the name of revolutionary justice Kings, Queens, Czars, Presidents and Prime Ministers have been killed imprisoned or sent into exile almost always by revolutionaries for the purpose of transforming society.  More often than not, particularly when acts of revenge are taken against their numerous supporters, the result has been civil war, reign of terror, the abrogation of the rule of law, the destruction of the Judicial System and the indefinite delay in bringing about the promised democracy.  Is the transformation of society impeded when  change comes about as a result of violence.  I believe that what we have achieved in South Africa in the last ten years would not have been possible if we had not avoided the violent overthrow of the apartheid regime.

The concepts of “retributive justice”, “restorative justice”, “post conflict justice”, “social justice”, “economic justice” and above all “transitional justice” are apparently going to be discussed and defined at this conference. According to Dr Alex Boraine the President of the International Centre for Transitional Justice, justice is as a key aspect for the establishment of lasting peace and for building effective and just states.

The situation in South Africa has been well documented.  The view of some in the Liberation Movements, was that a post apartheid South Africa should appoint special tribunals similar to the one that dealt with the high ranking Nazis in Nuremburg.  In their view there could not be forgiveness for murderers, torturers, bombers and saboteurs acting on behalf of the racist apartheid government.  This view was not consistent with the spirit of the negotiations initiated by Nelson Mandela whilst a prisoner or Oliver Tambo and those close to him including Thabo Mbeki, Albie Sachs, Kadar Asmal, Zola Skweyiya leaders of the UDF Cyril Ramaphosa, “Terror”, Lekota, Archbishop Desmond Tutu and many others including some of us in the ANC’s Legal and Constitutional Committee.  We were guided by what had happened in the rest of the world, particularly South America and also situations nearer to home.

During the negotiations of the independence of Namibia, SWAPO had insisted that its imprisoned combatents were political prisoners.  Although this term upset the South African government, it had to agree to the appointment of Prof. C.A. Norgaard, a Danish jurist, to interpret and give advice on the application of paragraph 7(b) of the United Nations settlement proposal, which provided for the release ‘of all Namibian political prisoners or political detainees held by the South African authorities.  In the absence of a definition of ‘political prisoner’ it was agreed that the meaning given to the words ‘political offence’ in the law and practice relating to extradition should guide the parties to the agreement and Professor Norgaard.  On behalf of the prisoners, however, it was contended that regard should be had to the context in which the term ‘political prisoner’ was used as part of the settlement plan, which had reconciliation as one of its fundamental aims.

Rejecting the Nuremburg option, we had to find an alternative.  It was decided that it should be amnesty but not in blanket terms and after a hearing during which a full disclosure was expected and other preconditions had to be fulfilled.

The continuing conflict concerning disclosure and other transitional concerns is inevitable when a society has been torn apart to the extent that ours was.  If a process is not enacted that gives people, both perpetrators and victims, the opportunity to speak about the past and present conflict, it is almost inevitable that it would be dealt with violently.  It is not possible to simply forget about the past  - it will sooner or later come back to haunt the nation.  The Battle of Kosovo in 1389 still haunts Serbian history.  The death of the Boer women and children in British concentration camps at the turn of the twentieth century haunts Afrikaner people. Ongoing Hutu-Tutsi conflict undermines peace in Burundi and Rwanda.

South Africans have chosen to speak about the atrocities of apartheid as an alternative to the kind of brooding resentment that undermines any possibility of coexistence.  Through the Truth and Reconciliation process, our quest was for an alternative way of dealing with conflict, involving words, speech and judgement, instead of acts of revenge.  And let this be said: I do not know of a single act of revenge in this country by victims taking the law into their own hands against one or  other of the perpetrators of murder, kidnapping and torture, as a result of disclosure about the past that emerged through the TRC.  One of the main reasons for this is a TRC process where the victims could actually confront the perpetrators and ask them questions:  ‘Why did you do it ‘?  ‘What is it that prompted you to do it?’  ‘Tell me my husband’s last words before you killed him.’

For all the limitations of the TRC, these developments enabled victims and survivors to deal with their anger in non-violent ways.  This process has helped South Africa avoid further conflict.  It has also been heavily criticised by antagonists on both sides of the political divide.  The TRC, and more particularly the establishment of a mechanism for conditional amnesty, was a compromise reached at five minutes before twelve in the negotiations.  Without this compromise, the process could have fallen apart.  We probably would have found ourselves thrust into a scale of full–blown civil war.  The compromise saved the nation from a disaster too ghastly to contemplate.

The TRC legislation provides amnesty not only against criminal prosecution but also against civil action.  Is it justice to deprive people of a civil action against the perpetrators?  Is it justice to allow perpetrators to walk away from he full impact of criminal law?  Asked out of context, as a simple question, the answer is obviously ‘No, it is not justice.’  But there is another question one has to ask:  What justice would there have been in our society if we had not agreed to this amnesty procedure?  How many people would have been unjustly killed, maimed or imprisoned in an escalating civil war?  Add to this the cost of litigation and the possibility of insufficient evidence to succeed in winning a court case.  The clamour for prosecutions in some circles is understandable but in many cases simply unrealistic.  And yet, it is not difficult to understand and appreciate the position of the mother, or the wife, the brother or the sister who hears that the killer of a loved one has received amnesty – not least if they feel that full disclosure has not been made and they are left with numerous questions in their minds.  The process has required them to relinquish their rights without any compensation.  The process has required them to bring closure to their ordeal.

Amnesty is not a recent phenomenon.  God ordained that Cain upon whom he had put a mark should not be touched for murdering his brother.   The passage in the Old Testament is often missed by those who call for the reintroduction of the death penalty on religious grounds.  The Goddess Athena absolved Orestis of his feelings of guilt that were leading him to self destruction, because he had killed his mother who had killed his father, who had sacrificed his daughter for the sake of favourable winds to take Agamemnon’s ships to Troy.  The divine power in both cases must have been used in order to bring an end to the blood feud.    The Furies charged with avenging the spilling of kindred blood complained against the God Apollo who acted as Orestis’ lawyer and prophesied that no parent would in future feel safe in his or her bed for fear of being put to death by one of their children.  The Goddess in order to pacify them changed their name and job description.  They would no longer be the Furies but the “Eumenides” charged with the task of ensuring that crops did not fail and that there would be peace on earth and goodwill among men and women.

Has Archbishop Tutu’s commission achieved the main purposes for which it was established?  It is impossible for any reasonable person to believe the lies spread by those in power during apartheid’s reign but there were no hit squads, detainees were not tortured and that those who died slipped on pieces of soap or down staircases, that doctors did their duty towards them and that no deliberate violations of fundamental human rights were committed.  Their admissions during the course of their evidence in applications for amnesty, the documents unearthed, the unchallenged versions of the victims, the findings of the amnesty committees and the lengthy report of the Commission show beyond any reasonable doubt, that these atrocities did take place.  Cogent evidence disproves the assertions by those who held high political office that they did not know what was happening.  Their protestations of selective amnesia and lack of knowledge are hardly credible.

One cannot dismiss complaints of those whose loved ones are still missing.  Those who feel aggrieved that the perpetrators who did not get amnesty have not been prosecuted and those who lost their breadwinners have not been adequately compensated.  One hopes that it is not too late for reasonable steps to be taken to do justice to them.