Why there is no easy way to dispose of painful history

R.W. Johnson

  • The Truth about the Truth Commission by Anthea Jeffery
    South African Institute of Race Relations, 167 pp, Rand (SA)89.95, July 1999, ISBN 0 86982 463 5

No book in recent South African history has attracted such venom as Anthea Jeffery’s analysis of the work of the Truth and Reconciliation Commission. She has been accused of wanting to defend the apartheid past, of having a desire to hurt and humiliate black people and of much else besides. Yet none of her attackers has dared to take issue with her on the basis of fact or evidence – Jeffery’s scholarship is beyond reproach. She is one of the few people who have actually read the five volumes of the TRC Report and is probably the only one who has tested it against the evidence uncovered by the various judicial inquiries, special investigations and court cases which had – in far greater detail – covered much of the same ground as the TRC and their findings. Jeffery has, moreover, done something of the sort before. The Natal Story: Sixteen Years of Conflict (1997) displayed the same impressive scholarship and, with almost painful evenhandedness, sought to put forward the opposing interpretations of every incident in which Inkatha and the ANC had been protagonists, leaving the reader to make up his own mind. This was, in current South African terms, a brave thing to do, but it is as nothing compared to the courage required to lay bare the procedures of the TRC.

Although Jeffery commends the TRC for having exposed many apartheid atrocities and for having provided many former victims with the opportunity to tell their stories and achieve a certain catharsis, the overall effect of her work is to leave the Commission looking shoddy and untrustworthy. The TRC, she points out, was not content with what it termed ‘factual and objective truth’ but, at the urging of the radical activist Albie Sachs, now a Justice of the Constitutional Court, also came up with ‘social or dialogue truth’, established ‘through interaction, discussion and debate’, then added ‘narrative truth’ – victims’ recitations, including ‘perceptions, stories and myths’ – and, finally, ‘healing truth’. ‘Healing truth’ – ‘the kind ... that places facts and what they mean within the context of human relationships’ – was, the TRC said, ‘central’ to its work.

Armed with these four orders of truth, the TRC relied principally on the data provided by some 21,300 uncorroborated victim statements, none of them tested in cross-examination, and fewer than 10 per cent given on oath. There were also 7127 amnesty statements which did have to be verified, although only 1.4 per cent of them had been by the time the TRC came to its conclusions about culpability. The TRC itself actively sought out many victims – and then concentrated all its attention on the 9980 killings they proceeded to recount. Of these, the TRC concluded, the police were responsible for 2700, the ANC for 1300 and Inkatha for 4500 – leaving 1480 killings unexplained. However, the total number of killings between 1984 and 1994 was 20,500, 15,000 of which occurred in 1990-94, after the abolition of apartheid. There are some 12,000 killings, then, which the TRC made no attempt whatever to explain; many of them took place after Mandela’s release. It is thus possible that the TRC had a very partial and selective approach to the truth: what if other victims had been sought out? Inkatha has always insisted that more than four hundred of its leaders were killed by ANC hit squads – which would, if true, represent the largest hit squad operation of all – but this claim was not satisfactorily dealt with, because Inkatha refused to play any part in the Commission, regarding it as hopelessly biased from the outset.

The Commission did not help itself much in this respect: the overwhelming majority of commissioners were clearly disposed in favour of the ANC, as were all the members of the research department, which seems to have written the report. Commissioners frequently showed strong hostility towards witnesses they didn’t like (most famously F.W. de Klerk, to whom they had to make a public apology) and despite their statutory duty to remain even-handed, several of them announced sweeping verdicts long before they had heard all the evidence.

As Jeffery shows, the TRC repeatedly sought to override or ignore the findings of far more thorough judicial investigations, apparently on the basis of sheer political prejudice. Justice Richard Goldstone, for example, had conducted a major inquiry into the Sebokeng shootings of 1990, which concluded that a small police detachment, faced with a crowd of 50,000 demonstrators, had fired on them, killing five and wounding 161. Goldstone criticised the police, and the organisers of the demonstration, but found that the commanding officer, Captain Du Plooy, was innocent of criminal conduct, the problem lying rather with the undisciplined behaviour of his men, who had, unordered, loaded their weapons and opened fire. Nine policemen were prosecuted, six of them for murder. The TRC, without giving any reason, simply ignored Goldstone: 13 people, they said – at other times it’s eight or 17 – had been shot dead and 400 (or, later, 300) had been wounded. The TRC held Du Plooy ‘directly responsible’, failed to acknowledge Goldstone’s criticisms of the demonstration organisers and, ignoring the prosecution of the nine policemen, asserted that ‘no action’ had been taken.

Six months after the police killings in Sebokeng, aggrieved Inkatha supporters in the township, who had been expelled from their hostel by the ANC, attacked and killed 38 ‘mainly ANC’ supporters; 137 Inkatha supporters were then besieged by a crowd of 5000, calling for their blood. An Army detachment was sent to the scene and, according to Judge Stafford who conducted the inquiry into this incident, a young conscript had panicked and begun shooting. Other soldiers followed suit. Stafford described this behaviour as ‘inexcusable’ but wished, he said, to lay to rest the rumours that the Army had killed as many as 11 people: the correct figure was four. The TRC ignored these findings, saying only that the Army had killed 15 people and that the Inkatha supporters were entirely to blame. Their earlier expulsion from the hostel is mentioned only in passing.

Similarly, the Goldstone Commission of Inquiry into the killing of 18 hostel residents of Tokoza in 1991 (by and large the hostel residents were supporters of Inkatha) found that it had been the work of professional assassins, but concluded that the evidence was simply insufficient to bring any individuals to book. In the course of his inquiry, Goldstone discovered that one of the ANC leaders involved, Mncugi Ceba, was very probably a police-informer, but said that, in the absence of substantial evidence, no charge could be brought against Ceba or the police. Here too, the TRC deliberately misrepresents Goldstone, claiming that he found Ceba guilty; it also insists that 23 (not 18) people were murdered and rejects, with no reason given, Goldstone’s account of the killings. Where Goldstone commented that rapid police and Army action had had the commendable result of preventing any retaliatory attacks, the TRC claims both that the police tortured a number of suspects and that 42 people were killed and 50 injured in the retaliation that followed. The discrepancy is unexplained.

More striking still was the TRC’s assertion of police involvement in the massacre of 45 Boipatong residents in 1992 – an assertion that echoes claims made by the ANC at the time, when Boipatong became a cause célèbre and de Klerk was named before the UN General Assembly as the massacre’s perpetrator. These were not the views of the Goldstone Commission, of Justice J.M.C. Smit or of the British police expert, Peter Waddington, who was brought in by Goldstone along with other high-ranking British policemen, in order to give an outside opinion on a matter of such importance. All three inquiries concluded that there was insufficient evidence of police involvement in the massacre. Virtually the whole of the TRC report on Boipatong seems to have been lifted verbatim from a report by a small pro-ANC voluntary organisation, hurriedly prepared in the wake of the massacre, before any of the evidence had been examined and evaluated by these three inquiries.

In March 1994, an Inkatha demonstration in Johannesburg was fired on near Shell House, the ANC’s headquarters. Eight people were killed by ANC security guards at Shell House and a further ten shot dead in the nearby Library Gardens. The TRC, in line with justifications proffered by the ANC at the time, insisted that the guards had reacted to Inkatha ‘offensives’ against their headquarters. This flatly contradicts the official judicial inquest conducted by Mr Justice Nugent, assisted by two assessors. Nugent rejected the ANC’s claim that its guards had ‘fired back in defence of their lives’, finding no evidence that Shell House was about to come under attack – an argument which, he said, had been ‘fabricated after the event’. Nugent found that the ANC guards had fired without warning, although it could not ‘reasonably have been believed’ that an attack on Shell House was imminent. ‘Prima facie, there was no justification for shooting at the crowd at all. Moreover, the barrage of fire was in any event grossly excessive,’ Nugent concluded. The TRC makes no reference at any point to this inquest.

The fact is that the TRC, although charged by statute to observe ‘established legal principles’, simply did not do so. It was unwilling to uphold the doctrine of audi alteram partem (hear the other side), in defiance of the Chief Justice’s explicit instructions. It heard secret evidence in private session, despite its obligation to ‘be open and transparent’, and often appeared to hold an oddly exalted opinion of its own makeshift methods. ‘The Commission,’ Archbishop Tutu, its Chairman, announced, ‘can claim, without fear of being contradicted, that it has contributed more to uncovering the truth about the past than all the court cases in the history of apartheid.’ In fact, the TRC often contradicted itself. For example, it noted that 23 Inkatha supporters had been massacred in ‘the battle of the forest’ near Richmond, in March 1991, and that 14 ANC supporters had later been killed in the same area; yet the conclusion it reached was that Inkatha had killed 23 people in June 1991. It is worth mentioning in this context that the Commission failed to investigate several notorious massacres of Inkatha supporters. Similarly, the Commission’s amnesty committee granted collective amnesty to 37 ANC leaders who had neither appeared before it nor made any disclosure of what they had done – although the rules stated explicitly that amnesty could only be given individually and to those who made full disclosure. When the Opposition parties took the matter to court, the TRC at last acted to remedy the situation.

And so on and on. One commissioner, Wynand Malan, entered a minority report, asserting that the TRC had not stuck to ‘factual truth’ but relied instead on its other three kinds of truth and a great deal of hearsay. The TRC report, by the by, turns out to be the work of five whites. When Malan got his copy, he set aside all his spare time, so that he would not have to sign it before he had read it. As it was, he was unable to finish it in time. I wonder how many other commissioners actually read the report before putting their names to it. As Jeffery points out, what we have is supposed to be an interim report, but the TRC itself and the world at large have treated it as the last word. In theory, the commissioners are to return to their task once the long-winded amnesty process is over. If they ever do reassemble, their first task should be to review their own work in the light of Jeffery’s strictures.

Despite all this, two great justifications for the existence of the TRC remain intact: that it allowed a good many victims and relatives of victims to tell their stories, and it made certain that no whites could be ignorant of what apartheid had meant. But it has been a sadly flawed process and was bound to be, from the moment the Commission was given an ideologically lopsided set of commissioners and staff and far too little time in which to do a proper job. The longer it went on, the more whites wrote it off as an ANC ramp and by the end, a majority of South Africans of all races believed that it was not impartial. Had it been more balanced, expert and authoritative, its impact would have been far greater. Indeed, the ANC should have had more confidence in its own position. Despite the horrors committed in the ‘people’s war’ – the necklacings, the soft target bombings, the assassinations, and the murder and torture in the guerrilla camps – any reasonable body would have found that the wrongs committed by apartheid were far greater and no one could have robbed the ANC of the legitimacy it derived from having fought in the name of the oppressed majority.

The situation is now extremely messy. Threatened with legal action, the TRC had to snatch back its report and excise its denunciation of de Klerk – which in turn infuriated the ANC and SACP, since references to their own human rights violations were allowed to stand. This led to an ill-judged ANC attempt, led by Thabo Mbeki but opposed by Mandela, to interdict the report. The ANC and the commissioners were briefly at loggerheads, each claiming that it had been ‘betrayed’ by the other: a tacit admission that they were supposed to be on the same side, for no one on the TRC would ever have felt ‘betrayed’ by anything that de Klerk or Buthelezi might have done. Several other major law suits are still pending against the TRC, brought by those who believe they have been maligned in the report – and given the ease with which plaintiffs will be able to cite court rulings contradicting the report’s findings, it is quite possible that the TRC will lose. One of the commissioners expressed a widely held opinion when he said that the aim of the TRC should be to produce ‘a publicly sanctioned history’ which ‘can be taught in schools’ to the exclusion of ‘contradictory versions’, but this is problematic in the light not only of Jeffery’s book but of criticism from other historians.

In the meantime some of the commissioners are getting restless. At a conference last August, Alex Boraine, the deputy chairman, noted pointedly that their findings had been with the Government since October 1998 but that ‘to this day the wider public and I have no idea whatever what the Government is going to do with the 40 pages of recommendations in the TRC report.’ Perhaps he should be grateful: if the state attempts to prosecute those whom the TRC holds accountable, it is bound to fail – the ‘evidence’ presented by the TRC will not stand up in court, for all the reasons Jeffery has shown. There are doubtless other reasons for the state’s inaction. President Mbeki still seems to want a final version of the report which exonerates the ANC of any charges of abusing human rights. Another problem is the enormous expense that recommendations for reparations to victims might entail. And Mbeki and Buthelezi seem close to agreeing that only a general amnesty for the tens of thousands of activists involved on either side of their low-intensity war would offer some guarantee of peace between the ANC and Inkatha. This would make nonsense of Truth and Reconciliation: all those who came forward to ask for amnesty in return for full disclosure and contrition would look very foolish if a far larger group gets rewarded with amnesty for having said nothing.

There is an even greater problem, however. Rumours have long circulated of a secret deal struck in 1990 between the National Party and the ANC to create an environment in which these bitter enemies could sit down together and negotiate a peaceful transition. For this to happen, the ANC would have had to give up any idea of staging Nuremberg trials for the architects of apartheid: the NP leadership and their top generals and policemen were hardly likely to surrender power if they thought any such thing was in prospect.

The ANC had an equally numerous class it wished to protect: those within its own ranks who had acted as police-informers for the apartheid regime. The ANC, after all, was penetrated from top to bottom by police spies – hence the paranoia among ANC guerrillas outside the country and their short average lifespan: many walked across the border straight into police traps. This was inevitable: the security forces were willing to bribe, torture and kill to get what they wanted and under duress many ANC activists were bound to buckle, becoming impimpis (informers) or even askaris (turncoat soldiers). It transpired that even top ANC leaders in London, who didn’t have that excuse, were on the security police payroll. (And since MI5, the CIA and the KGB were eager to know what was going on inside the ANC, many informers would no doubt have had multiple paymasters.) Moreover, the apartheid security forces had a ‘hearts and minds’ strategy, which – over the years – led them to search out literally thousands of so-called ‘change agents’: often township teachers, nurses or others thought to have a degree of social influence. If you could get them onto the payroll (and many were too poor to refuse), they could play a decisive role in neutralising the hostility of their communities towards the regime – which meant, for a start, acting as informers. Over the years there must have been thousand upon thousand of these impimpis.

The impimpis were an agonising problem for the ANC. The security apparatus often boasted that it had immediate knowledge of the most secret ANC decisions and the ANC had no doubt that even its top leadership had been penetrated. If de Klerk were ever to make public the full list of impimpis, the damage to the movement would be almost irreparable. Moreover, the psychological and public damage to the organisation would have been enormous. Far better to sweep the whole subject under the carpet. In this, the ANC seemed to secure de Klerk’s co-operation, for no list of police informers ever came out. It remains a subject of extreme ANC sensitivity. When the radical Pan Africanist Congress MP, Patricia de Lille, began announcing the names of alleged informers now holding high ANC office, she was prevented from finishing her speech and the ANC used its majority to suspend her from Parliament – an unconstitutional act since righted by the courts.

What the NP seems to have secured in return for not exposing the informers (despite the massive document-shredding of 1990-94, a complete list is rumoured still to exist on a CD in a safe deposit box in Europe) was the protection of its own élite. It is difficult otherwise to explain why only a few relatively low-level security police thugs and assassins have gone to jail, while none of those who gave them their orders have done so. All that has been required of ministers of the ancien régime was a formal apology for apartheid: no one has asked for a detailed investigation of crimes committed under their jurisdiction.

The trouble with protecting a magic circle and throwing the lesser ranks to the wolves is that there has to be a cut-off point – and those below it will try to incriminate those above it. Last year the former police commissioner, General Johan van der Merwe, admitted that the police had planted bombs both at Cosatu House, the trade union headquarters, in 1987 and at Khotso House, the South African Council of Churches building, in 1988. He also said that in 1993 he had become so worried that judicial investigations into the Khotso House bombing would strain the loyalties of the police in the run-up to the election that he had gone to Mandela, told him the truth of the matter and persuaded him to intervene to stop the investigation. This produced a routine denial from Mandela’s office (the President was away in Latin America). Some days later van der Merwe withdrew his statement, saying it had been ‘misunderstood’, leaving a strong impression of arm-twisting behind the scenes.

The fat was in the fire. In order to protect his juniors, van der Merwe had accepted responsibility and, in order to protect himself, declared that he had been ordered to carry out the bombings by his superiors. As a result, the former Minister for Law and Order, Adriaan Vlok, became the only minister to seek amnesty, admitting to the TRC that he had given the order – but he, too, went on to say that he had done so on instructions from P.W. Botha. This was the nub of the matter. Everyone knows that, as President, Botha was not only responsible in principle for all the atrocities carried out from 1978 to 1989, but that he was a peculiarly interventionist head of state who demanded to know and control everything. He is, without doubt, the guiltiest man in the country. But the TRC merely implored him to come along and say he was sorry about apartheid, hug Archbishop Tutu – as Winnie Mandela had, in a strange new form of ritual absolution – and be done with it. Botha scornfully refused to testify and got clean away with it.

The endless attempts to get Botha to come and apologise are, in a sense, the key to the Truth and Reconciliation enterprise. Loaded as it was with left-wing clerics, the TRC worked on the quasi-religious theory that the way to achieve reconciliation was to perform a collective act of therapy by getting sinners to come forward, own up and publicly repent, whereupon there could be much weeping, praying and satisfaction in heaven. This was never as moving as the sight of the victims and bereaved recounting their sorrows, because the sinners were invariably working hard to avoid long jail terms. The real psychological satisfaction that the process offered was the spectacle of previously high and mighty whites being humbled before the Commission. This was such a source of delight to Africanist intellectuals that the TRC attempted to make all manner of third parties – businessmen, journalists, judges, doctors and so on – come forward and apologise for their role in apartheid. Most of these groups were startled and affronted to find themselves arraigned alongside killers and torturers but, with the exception of the judges, most came up with a spokesman who was willing to grit his teeth and doff his cap in an effort to get on side with the new South Africa. In the end, to the chagrin of the Commission and the comrades, the greatest of their bêtes noires – not just P.W. Botha but Chief Buthelezi – refused to knuckle under. Buthelezi did eventually testify at some length, but claimed he had been far more sinned against than sinning.

The TRC’s peculiar mix of methods has achieved an uneven degree of reconciliation. There is an appetite in some quarters for further humblings and abasements, which is why Jeffery’s book has been greeted with so much rage. But there is worse to come. The TRC’s work is such a dog’s breakfast that court cases against those the TRC has fingered will probably fail; there must also be a good chance that two suits against the TRC – those of Buthelezi and the former head of intelligence, Niel Barnard – will succeed.

One should not be too hard on the TRC. The Nuremberg trials were an extremely flawed exercise: there is no moral justification for the fact that William Joyce (Lord Haw-Haw) was executed or Rudolph Hess locked up for life, while so many big Nazis got off that we are still hunting them down. France’s attempt to deal with its traitors and collaborators and to face up to what was done by the Vichy Government and its friends was even more badly botched. Last year’s arrest of Pinochet for human rights violations suggests that the Chilean counterpart to South Africa’s attempt at Truth and Reconciliation left some fundamental problems unsolved. Societies that try to resolve recent social traumas by quasi-legal procedures seem always to make a mess of it. The only satisfactory way to deal with such situations would be to assemble a large and expert task force of professional historians, lawyers and policemen, tell them to avoid grandstanding and give them ten years to report. But the politicians want a quicker fix, the clerics want public therapy and a lot of individuals need to assuage their sorrows, get their revenge or enjoy the humiliation of the old order. There may be no way of disposing of painful history. The clerics tell us that we have to put it behind us if we want to get to heaven, but when it comes to history here on earth, maybe we have just got to live with it.