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.