The Role of the Legal Profession in the South African Truth and Reconciliation Commission

Abstract

In situations of a transition to democracy, the legal profession tends to have a strong impact. While this is quite clear in the case when criminal prosecutions are initiated against perpetrators of gross human rights violations, and when amnesty provisions are enacted for some violations, it is far less obvious in cases when a truth commission is set up. The current article looks into the role that the legal profession, i.e. the judiciary, the bar and the non-governmental organisations, has played in the notorious case of the South African Truth and Reconciliation Commission (TRC). It draws on the systems analysis of political life by David Easton, which identifies how demands (input) that rise in society, are processed (conversion) and produce results (output), which provide new inputs to the political system. This ‘flow model’ is applied to two separate processes during the life of the TRC: the Special Legal Hearing of October 1997, and the legal challenges put to the Commission in Court in 1996. Our analysis reveals a number of interesting conclusions. One is that the organised profession approached the Special Legal Hearing from a very legalistic point of view, despite the non-judicial character of the Truth and Reconciliation Commission at large. This stands in contrast with the position of the Constitutional Court, which recognised the limits of the traditional judicial system and came out in support of the TRC. Another conclusion is that, although the participation of the judges and the magistrates in the Special Legal Hearing was limited to written submissions, their influence proved very large, as they threatened the TRC with a constitutional crisis. Finally, throughout the two processes under review, breaches became visible within the legal profession, between the ‘progressive’ non-governmental organisations and the ‘conservative’ organised profession on the one hand, and between the organised profession on the one hand and the judges on the other hand. In sum, it can convincingly be concluded that the impact of the legal profession remains quite important when a truth commission is opted for in a context of transition to democracy.