Summary of

The Provocations of Amnesty : Memory, Justice, and Impunity

Edited by Charles Villa-Vicencio and Erik Doxtader

Summary written by Conflict Research Consortium Staff

Citation: Villa-Vicencio, Charles, and Erik Doxtader, eds. 2003. The Provocations of Amnesty : Memory, Justice, and Impunity. Trenton, NJ: Africa World Press.

The essays in this volume emerged from a symposium regarding amnesties in the aftermath of gross human rights abuses held in Cape Town, South Africa, in October 2001. South Africa's amnesty program, as part of its Truth and Reconciliation Commission (TRC), represented a significant innovation in that it required those seeking amnesty to make a full disclosure of their actions. At the same time, many criticized the conditional amnesty as abrogating the possibility of punishment, consequently supporting continued impunity. Before getting to the papers from the conference, the editors have reprinted pieces by four prominent voices in South Africa's public discussion about the merits of the amnesty: human rights advocate George Bizos, amnesty applicant and former operations director of the Azanian People's Liberation Army, South African Constitutional Court justice Albie Sachs, and investigating director of public prosecutions in the National Prosecuting Authority Leonard McCarthy. They raise many of the issues that the authors in the rest of the volume wrestle with.

Some of the chapters explore the relationship between amnesty and justice. Villa-Vicencio concentrates on the nexus between retributive justice and restorative justice, which he rejects as mutually exclusive. While a purely retributive focus may put the transition at risk, a restorative justice approach does not and also provides benefits for victims. Mervyn Bennun examines whether the South African amnesty is in violation of international legal obligations. Bennun concludes the amnesty is consistent with obligations. In his essay, Donald Shriver outlines the outcomes one can reasonably expect from truth commissions that distinguish them from prosecution. Pumla Gobodo-Madikizela makes the case for amnesties as a significant way to reach the desirable goal of reintegrating perpetrators. Although not all perpetrators came forward, and not all that did apologized, the fact that some did generated a discourse than can have positive benefits.

Others contemplate the degree to which amnesties thwart efforts to uncover the past and, consequently, leave memories simmer to be potentially re-ignited in the future. Antjie Krog rejects the notion that political necessity trumped moral duty in the TRC's amnesty process, but rather, what was problematic was the stance the Supreme Court took in interpreting the amnesty provision. Doxtader reflects on the public nature of the amnesty process in South Africa. Its public nature lent it the ability to permit victims to contribute to the construction of history. Zola Sonkosi laments the fact that traditional African means of amnesty have largely been overshadowed by the West, but practices in rural areas provide potential examples for emulation. Alex Boraine considers the relationship between trials, truth commissions, and amnesty in transitional circumstances.

A third section examines how amnesties might be constructed to result in the most positive outcomes. Martin Coetzee provides an overview of precisely how the amnesty process worked in South Africa. Fullard and Rousseau argue that assessment of the TRC's amnesty process depends very much on one's social position. While the amnesty hearing clearly produced a number of revelations, the results were often ambiguous as the amnesty committee was hampered by its legislative mandate as well as its internal operation. Piers Pigou raises questions as to the ability of the amnesty hearings to conclusively reveal whether perpetrators that came forward gave a full accounting of a crime that was politically motivated. Unanswered questions remain for many victims and their families even after the hearings.

The final section deals with the consequences of amnesty. Jeremy Sarkin considers the legal consequences for those who did not apply for or were refused amnesty. The end of the TRC has brought rumors of a blanket amnesty to put the past to rest. Sarkin warns against such a step, arguing that prosecution for at least some human rights violators are necessary or both national reconciliation and the individual healing of victims will be harmed. Klaaren and Varney find that the notion of 'supervisory indemnity', in other words indemnity from "acts flowing from a disclosed organizational policy or strategy, whether or not the supervisor was aware of the specific acts" that has been considered would, in fact, be constitutional (266). In May 2002, President Mbeki quietly pardoned 33 convicted and jailed individuals. S'fiso Ngesi describes the crucial role of the media in bringing the issue to the public's attention and serving as a venue in which the merits of the action could be debated. Yasmin Sooka sees the amnesty process resulting in a political peace, but not reconciliation. Many perpetrators did not show remourse and generally only lower level figures came forward. Frederik van Zyl Slabbert similarly criticizes the process for not facilitating confession and accountability.