No justice in amnesty without reparations
©
Brandon Hamber & Bill Dishington
Sunday Independent, 25 June 2000
The last few weeks have seen a flurry of media reports on the Truth and
Reconciliation Commission's reparations policy. Victims who testified before the TRC accuse government of moving
too slowly on the TRC's recommendations.
The government blames the TRC for not spending all the money allocated
to the reparations budget. In turn, the
TRC is accusing the government of failure to act promptly on its
recommendations.
Whichever way you look at it,
the victims are getting a raw deal.
They have been victimised by what happened to them in the past and have
had to watch perpetrators getting amnesty.
They waited for two and half years for so-called urgent interim
payments, which, on average, amount to little more than R3500 for violations
such as murder and rape. To make
matters worse, the TRC's long-term reparations recommendations, tabled in
October 1998, still await substantial discussion that moves beyond political
posturing towards exploring feasible options.
Recently victims groups have
made some strong statements in the press.
The Khulumani Victim Support Group have taken to the streets to protest
the slowness of government’s response to the TRC's proposals. The Justice Ministry’s spokesperson, Paul
Setsetse, admitted in the City Press recently that the long-term process has
“moved slowly” and that “there are no intentions to scale down final reparations
or to sweep the issue under the carpet”.
This remains to be seen.
Concrete proposals need to be
put on the table. These must move
beyond the focus on the minimal urgent payments, which have obscured the real
issue. A long-term reparations policy
needs to be fleshed out and debated publicly.
If this does not happen, victims may have cause to consider different
legal options. One is to investigate
the constitutionality of limiting reparations in light of the generous amnesty
provisions. The other option may be to
appeal to the international human rights community, many of whom are itching to
test more legislation following the relative successes of the Pinochet
case.
The right to reparation for
wrongful acts has long been recognised as a fundamental principle of law
essential to the functioning of legal systems.
In this sense the right to reparation is not new. However, internationally the will to enforce
it seems to have increased.
The hiatus in the reparations
process in South Africa is in sharp contrast to the importance that reparations
is currently being given internationally.
The UN Commission on Human Rights will adopt in the near future a set of
Basic Principles and Guidelines on the right to reparation known as the ‘Van
Boven Principles’. Furthermore, the
International Criminal Court, to which South Africa is a signatory, will be the
first international criminal tribunal to have the power to award reparation to
the victims of crimes which come before it.
Reparation is recognised under
international treaties and customary law in decisions by the United Nations
Human Rights Committee, the Inter-American Court of Human Rights, the European
Court of Human Rights and national law and practice, as well as in a number of
other international treaties. Recent developments suggest that soon reparation
will become an international standard not just a principle. Therefore, if reparations are not granted to
victims in the long run, and lets hope this is not the case, it may be possible
for them to test whether this would contravene South Africa's international
obligations.
Another way in international law
which may have relevance for the situation in South Africa is the developing
concept of ‘legitimate expectations’. A 'legitimate expectation' is a tool of
administrative law intended to provide procedural fairness. According to this
concept, if a government publishes a policy or makes a representation about how
it will proceed in making decisions, those affected by the decision must be
given the opportunity of a hearing if the decision-makers act in a manner which
is contrary to the policy. Given the
fact that reparations is enshrined in the act which gave birth to the TRC this
may be a further route to consider if reparations are not granted.
Australia has recently seen a
successful case drawing on the principles of ‘legitimate expectations’. This may set a precedent in which the
ratification of international treaties will bind administrative decision-makers
to take account of these treaties where they affect individual rights of their
citizens. For example, if the right to
reparations is built into an international treaty, as it is in the Convention
Against Torture of which South Africa is a signatory, the signatory will be
obliged to make reparations.
Notwithstanding the reparations
debate, there are also other international precedents that have developed
recently which have implications for the TRC process. Victims could, for example, challenge South African amnesties in
the courts of other countries. The
reverberations from the Pinochet case in the UK has meant that the concept of
‘universal jurisdiction’ has become more widely recognised. Certain crimes such as war crimes, crimes
against humanity, genocide and torture are so universally abhorred that they
constitute crimes against international law. A number of international treaties
place signatory states under a duty to ensure that suspects who come within
their borders are brought to justice, either by prosecuting them in their own
courts, or by extraditing them for trial elsewhere.
Craig Williamson, for example,
by admitting his responsibility for blowing up the ANC offices in London, is
liable for prosecution should he ever come within British jurisdiction. Other perpetrators given amnesty may also
find that should they travel abroad from South Africa that the status of their
amnesty will be challenged. There is also the possibility that amnesties
granted in South Africa could be considered null and void internationally.
The survivors who came before
the TRC have made an enormous sacrifice on top of the suffering they have
endured. Our experience with survivors indicates what most of them want
justice, not just truth. The amnesty
process has removed their right to criminal or civil action in the name of national
reconciliation. Amnesty without reparations is tantamount to impunity. Is the South African government now
seriously asking them to forego their right to reparation?
At this stage, government would
probably answer, no. President Mbeki
has stated they are committed to victims.
At the same time, however there is little evidence of a clear long-term
reparations strategy waiting to be unveiled.
The more victims feel frustrated
by the delay in meaningful reparations, the more likely they will be to seek
alternative forms of redress; a situation the government should closely attend
to if it wishes to avoid international embarrassment.