23 - Prosecutions, Pardons and Amnesty: The Trajectory of Transitional Accountability in South Africa

Summary

INTRODUCTION

The South African Truth and Reconciliation Commission (TRC) remains an important reference point for the development of truth commissions in all parts of the globe. While not directly copied by other transitional justice processes, its model of conditional amnesty is lauded for its apparent ability to ensure accountability while circumventing traditional forms of punitive justice. While much analysis has been conducted on the implementation of the amnesty process in South Africa and its immediate value, little regard has been given to a broader contextual analysis of the longer-term battle against impunity. The fact that the conditional amnesty was an opportunity for clemency which was not taken up by most perpetrators is overlooked. Moreover, the failure of the state in pursuing justice and accountability for un-amnestied cases and providing pardons for the limited number who were convicted, raises serious questions about the longer term impact of the South African transitional justice model on the development of a human rights culture and the rule of law. The implications of this for impact assessment in the general field of transitional justice are that specific transitional mechanisms need to be examined in a broader context of justice reform and human rights activism which happen in a broader time frame (both preceding the transitional justice intervention and continuing long after the high profile mechanisms close their doors). The excitement about short term successes need to be tempered by a more sober long-term assessment.

This chapter argues that the post-TRC period in South Africa has been characterised by a creeping impunity for apartheid era human rights violations. Initial moves to pursue limited prosecution against those who failed to receive amnesty have been replaced by disguised amnesties, pardons and political interference in prosecution cases. These processes have been introduced without sufficient transparency and the mechanisms have not allowed effective victim participation. These developments are assessed against the broader transitional justice goals of providing justice for victims on the one hand and the strengthening of a national commitment to human rights on the other. The chapter combines insights from research on the needs of victims and their perceptions of the impact of the TRC with the engagement of civil society organisations in lobbying for post-TRC accountability and transparency in the development of policy and implementation of justice processes.