Published online by Cambridge University Press: 30 March 2017
Transitional states have elected divergent strategies in dealing with their pasts. Some have opted not to confront the past at all by invoking general amnesty laws, whereas others have determined that some form of accountability is needed. Postapartheid South Africa presents a novel illustration of the attempts of a transitional state to balance the legal, political, practical, and cultural interests of its society as it moves toward the democratic ideal. In this vein, the purpose of this paper is twofold: first, to examine whether individual amnesty was the optimal method of accountability for South Africa to deal with its past; and second, to analyze the extent to which the Amnesty Committee has succeeded in its application of the individual-amnesty provisions and the effects of those efforts.
* The author is a candidate for a law degree from the University of Edinburgh in 2001. She spent the 1999-2000 academic year at the University of Texas School of Law, where she conducted research for this paper.
1 Act 34 of 1995 [hereinafter Act]. The Act and other documentation concerning the Truth and Reconciliation Commission, including its report, infra note 3, are available at the commission’s Web site <http://www.truth.org.za/>.
2 Act, supra note 1, ch. 2, §2.
3 1 The Truth and Reconciliation Commission of South Africa Report, ch. 4 (1999) [hereinafter TRC Report].
4 Act, supra note 1, ch. 2, §3(1).
5 The National Party insisted that the decisions of the Amnesty Committee be exclusive and free from interference by the commission. See further 1 TRC Report, supra note 3, ch. 1, at 10.
6 Act, supra note 1, ch. 4, §20(l)-(2).
7 Id § 2 1.
8 Introduction to South Africa’s Interim Constitution (D. A. Basson ed., 1994).
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18 Whether or not South Africa had a duty to prosecute the perpetrators of human rights violations is an important, but complex, question. This paper has neither the room nor the scope to address it.
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31 1 TRC Report, supra note 3, ch. 7, at 193.
32 See further the section on general amnesty at p. 34 supra.
33 Sec Act, supra note 1, §17.
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41 DP Says NP Delaying Proceedings by Intervening in TRC Application, SAPA, Pretoria, May 1, 1998 (quoting Dene Smuts, DP spokesman), obtainable from id.
42 S. Afr. Interim Const., supra note 22, sched. 4, const, princ. VI.
43 Six High Court judges, eight advocates, and five attorneys.
44 To the best of my knowledge, there is no public report outlining the reasons why the Amnesty Committee granted blanket amnesty to the ANC 37