Picking up the pieces
© Bobby Rodwell and
Brandon Hamber
New Nation, 24 May 1996
The first Amnesty hearing of the Truth and
Reconciliation Commission (TRC) provided the public with an interesting
dimension, since the process started where the Amnesty Committee played the
role as both judiciary and a reconciliatory body.
Although
the applicants in this case did not receive amnesty as the committee still had
to decide on their application, it achieved its purpose of reconciling a
community torn apart by past action. Perpetrators of the murder and relatives
of the victim were able to reconcile their differences.
The
five-person Amnesty Committee which sat in Phokeng in North West province,
heard evidence regarding the amnesty applications of Christopher Makgale and
Boy Diale, for the 1990 murder of chief Glad Mokgatle.
Despite
the need for the legal discipline, the Amnesty Committee played a
reconciliatory role where the Bafokeng people were afforded the opportunity to
reconcile with some of their broken past.
In
terms of the legal process, the amnesty applicants and their legal team, headed
by Brian Currin, were rigorously cross-examined to establish if the act of
murdering the 85-year-old Mokgatle met the criteria required for amnesty.
At
the same time, the Amnesty Committee gave the opportunity to various Bafokeng
community members to make reconciliatory statements about the case and the
effect on the community as a whole, even if this had no direct bearing on the
granting of amnesty.
There
were strong expressions of remorse for the crime on the part of both Makgale
and Diale. Makgale asked for "forgiveness from the relatives of the
deceased and the Bafokeng tribe."
Aaron
Mokgatle, 54, son of the victim, told the committee, "Here in Phokeng we
are one family. They (Makgale and Diale) performed a terrible deed - they
killed their own grandfather, but we are still one family."
Charles
Mokgatle, also a son of the deceased, pleaded with the community to bury the
past and no longer persecute the family for their father's support of the Lucas
Mangope government.
However,
at the end of the day, it is the precise technicalities of the Promotion of
National Unity and Reconciliation Act which establishes the Commission, against
which evidence must be weighed when determining whether perpetrators receive
amnesty.
In
order for someone to qualify for amnesty the committee must be satisfied that
full disclosure by the perpetrators of the relevant facts has been made. The
act must have been of a political nature and must have occurred between March
1, 1960 and December 5, 1993.
The
committee will also be guided by certain considerations:
v
The motive of the person who
committed the act;
v
The context in which the act
was committed, whether it was part of a political uprising or disturbance;
v
The legal and factual nature of
the act, including the gravity of the act;
v
The object or objective of the
act, in other words, against whom the act was primarily directed;
v
Whether the act was carried out
by order or approval of a political body, institution or individual; and
v
The relationship of the act and
the political objective and the proportionality of the act.
In
this week's hearing, Currin argued that the context in which the act was
committed was characterised by intense political conflict and that the case
needs to be understood in this light.
He
stressed that the political objective was clear and that the applicants had
broadly intended to regain control over Bafokeng political affairs, by
attaining the keys from Mokgatle, to the Civic Centre, where all meeting and
decisions regarding the tribe affairs took place. The vigorous approach of the
TRC's legal team and members of the Amnesty Committee signalled the committee's
intention to treat amnesty cases with the seriousness such violations demand.
The
procedure of the hearings, determined by the Amnesty Committee, is modelled on
court case proceedings, with the legal team leading the evidence on behalf of
the TRC and the defence team on behalf of perpetrators.
The
Commission, under the Promotion of National Unity and Reconciliation Act, is
obliged to appoint legal representation for the applicants where they cannot
afford to do so, or where it is in the interests of justice.
On
observing the first hearing, it seems crucial to all amnesty applicants to have
legal representation, as clearly amnesty will not be granted automatically and
the committee will carefully scrutinise each case.
Despite
the need for the legal rigor the Amnesty Committee also played a reconciliatory
role. The Bafokeng people were afforded an opportunity to reconcile some of the
pieces of the past history.
The
real challenge to the Amnesty Committee will be when it starts to consider the
400 amnesty applications received to date, which may not be so clear cut and
where there may be little feelings of remorse shown by the amnesty applicants.