Indemnity, Amnesty, Pardon and Prosecution Guidelines in South Africa

Abstract

In charting the history of the amnesty and amnesty-like measures in South Africa, this paper will begin in Part 2 by providing a brief overview of the apartheid system and the violations committed by the parties to the conflict that resulted. Then in Part 3 it will explore the triggers that forced the apartheid regime to move towards a negotiated transition. Part 4 will discuss the origins of the amnesty question in the transition through the struggle to define political crimes. Part 5 will consider the evolving positions of the government and the ANC towards amnesty and truth recovery in a context of high levels of violence and greater public knowledge of the crimes committed by both sides. Part 6 will explore the amnesty provisions in the postamble to the Interim Constitution 1993. Part 7 will briefly discuss the implementation of the 1990 and 1992 indemnity laws following the transfer of power. The provisions of the Interim Constitution relating to amnesty were given more detail in the subsequent Promotion of National Unity and Reconciliation Act 1995, which created the Truth and Reconciliation Commission (TRC), with its Amnesty Committee. This work of this commission will be explored in Part 8 and Part 9 will analyse the mandate and operations of the Amnesty Committee. Part 10 will evaluate how far the South African amnesty process achieved the goals outlined in the Promotion of National Unity and Reconciliation Act. Then, Part 11 will explore the relationship between the amnesty and trials, and in particular, it will discuss how the new National Prosecution Policy and the possibility of presidential pardons for political prisoners affect the legacy of the TRC. This paper will argue that South Africa provides an important case study that highlights that prosecutions and amnesty can co-exist and be complementary. Furthermore, the question of who was eligible for amnesty within South Africa raised interesting questions in relation to whether violent crimes could be defined as political, whether the crimes of the apartheid state should be treated equally to the crimes of its opponents, and the extent to which truth recovery can be incorporated in different models of amnesty, indemnity and prison releases.