We, the People. Albie Sachs
and I’m looking at him. And I see in his eyes, ‘so this is the man I tried to kill’, and he sees in my eyes, ‘so this is the man who tried to kill me’. We’d never met, we’d never fought, we’d never argued over love, money, power, passion … But he was on that side, and I was on this side. And he’d tried to kill me, and now he was going to the Truth Commission. As we walk to my chambers, he is striding like a soldier, and I do my best to use my judge’s ambulation to slow him down. We come to my office, and we talk, we talk, we talk, we talk, we talk, and eventually I say, ‘Henri, I have to get on with my work’. I stand up, and I say, ‘Normally, when I say goodbye to somebody, I shake that person’s hand. I can’t shake your hand. But, go to the Truth Commission. Tell them what you know, and maybe, maybe, maybe, we will meet again one day’. And when we walked back to the security gate, I noticed he was shuffling along, without that firm stride he’d had when he’d come in. He went out. Bye-bye Henri.
Now what was this Truth Commission to which he was going to go? The story goes back to six months before the first democratic elections, which I’m sure many of you would have seen on television in the programmes marking the death of Nelson Mandela. It was the first time black and white were voting together as equals in South Africa. About six months before that, the National Executive Committee of the ANC, of which I was a member, had a meeting near Johannesburg – about eighty of us at a very, very, very, impassioned meeting.
The issue was what to do about a report that had been transmitted to the National Executive prepared by what we called the Motsuenyane Commission. We had set it up to examine claims that the ANC had used torture during the liberation struggle; that we had held captured enemy agents in camps in Angola where the ANC guerrillas were, and that the captives had been subjected to very, very rough, abusive physical treatment. And the report said that prima facie evidence established that indeed this had happened. And it recommended in no uncertain terms that the ANC follow up against those responsible. The events would have happened in 1981–83. We are now speaking about it in 1993, discussing the recommendation that we must take steps to deal with the use of torture by the ANC in exile ten years before.
The ANC’s position was to condemn torture unconditionally. We were freedom fighters fighting for life – how could we be against life? But what to do now, ten years later when we had got back home? Some of us stood up and we asked for the Motsuenyane report to be implemented. ‘They’ve reported, we must follow through’. And others said, ‘No, you’ve got to understand the circumstances. Our guards were young, they were untrained. They’d given up their studies to go and fight for freedom. They did what they thought they had to do in the situation, because that’s what happened to them when they were captured by the South African Police. And it would be unfair to take action against them now’.
And I remember Pallo Jordan, one of the leading intellectuals in the movement, standing up and saying: ‘Comrades, I’ve learned something very interesting today, there’s a thing called “regime torture”, and that’s bad, and there’s “ANC torture”, and that’s okay. Thank you for enlightening me!’ And then somebody rose and said: ‘What would my mother say?’ Now ‘my mother’ was a figure we often used in our discourse in the ANC. ‘My mother’ would be an African woman with maybe four years schooling, not much knowledge about the world, but with a very strong sense of right and wrong. ‘What would my mother say?’ And he answered: ‘My mother would say there’s something very strange about this organisation. It’s quite correctly examining its own failures, but what about what racist governments have been doing to us for decades, for centuries? Where is the balance, where is the fairness in simply picking on our people who misbehaved and not on the others?’
It was shortly after that that Professor Kader Asmal stood up and said: ‘Comrades, what we need is a truth commission’. Now this was one of those issues – how to deal with torture – that you can’t resolve by a show of hands. This was a deep moral issue, requiring an understanding of the context and what it means for the organisation and who you are and how you stand on matters of principle. Kader said: ‘There’s got to be a truth commission in South Africa, when we have democracy, after we’ve voted, that examines not only what our people did to the relatively few captives in our hands, but also the experiences of thousands and thousands of people who were tortured, victimised, assassinated by the regime’. And suddenly we knew that was the answer. It wasn’t a problem just for our organisation, it was a problem for the nation, the whole nation, across the board.
So paradoxically, ironically, the Truth Commission was set up not by an ANC government wanting to expose the crimes of the previous regime. It was set up by freedom fighters anticipating that they would sooner or later be in the government, wanting to help the ANC usher in our new democracy with clean hands; with no secrets; with nothing to hide.
We wished to find a way of dealing with the atrocities of the past, whoever had committed them, as a nation. That was element number one.
Element number two of the process also emerged in a surprising and paradoxical way. We have signed the interim constitution and are heading for elections. And I’m invited by a body in London called the Catholic Institute of International Relations, who’d given us a lot of support, to report to them on the new Constitution. I say, ‘Fine’, and fly to London. They put me up at a little hotel; a spartan little hotel in Kings Cross. And its quality is relevant to the story. I’m amused because as the constitutional negotiations advanced, our accommodation improved. For the last eleven days we had been in a Holiday Inn Garden Court Hotel. But now in London I’m back to my grassroots lodgings. I’m tired, I’m about to go to sleep, and there’s a knock on the door. ‘Terribly sorry to disturb you, Professor Sachs, but a fax has arrived from South Africa; it’s very urgent, can you look at it?’ And the fax said that there was a crisis that could jeopardise the elections. The generals and the leaders of the security forces in South Africa had said that President de Klerk had offered them an amnesty if we got democracy in South Africa. Then they read the text of the Constitution and saw nothing in it about amnesty. And they stated that they had protected the constitution-making process (and we knew that they had) and added that they knew of plans by extreme right-wing groups to bomb the elections to smithereens; many of their members were risking their lives to get information that would help protect the elections. But to ask them to protect the elections and then go to jail afterwards, that was too much. They weren’t threatening a coup, they weren’t saying they would take over the country, they weren’t holding a gun to anybody’s head. They simply said: ‘We will resign our commissions, we’ll go abroad, that’s the only realistic alternative we have’. And the ANC head office fax, maybe even coming from Mandela, indicated a certain measure of sympathy implying that President de Klerk hadn’t come clean in his dealings with his security people. I remember after reading the document – because this little hotel didn’t have a fax machine; it didn’t even have paper – I turned the paper over and wrote on the back: ‘We can’t give a general amnesty, a blanket amnesty. But could we not link amnesty to the Truth Commission? So that if people come forward one by one and tell their stories truthfully, then they can get amnesty on an individual basis’.
The fact is that we didn’t set up a Truth Commission in some abstract way to deal with the problems of the past. It arose out of three very specific needs. 1. The ANC needed to come clean about its own failures. 2. Some mechanism had to be found to enable the security people to carry on protecting our process. 3. At a purely practical level, we needed to avoid having endless trials clogging up the justice system; where would you find the evidence, and who would you charge – the one who pulled the trigger, the one who switched on the electric machine, the one who ordered it, the one who made it, the politician in charge, the president of the country? The complicity was so wide that whole sections of the country would be engaged in endless prosecutions. So we had very strong practical motives for producing a process with a defined date of closure.
My friend, Dullah Omar, one of the lawyers on the National Executive, was made the first minister of justice. He spent almost the whole of his first year just working on the Act dealing with the Truth Commission. It was adopted in terms of a clause placed towards the end of the Constitution, called an epilogue, which I preferred to call the post-amble. And the post-amble was poetic, it wasn’t in technical legal language. It spoke