Case Study of South Africa: The Use of Amnesty

Case Study of South Africa: The Use of Amnesty in Conjunction with Other Transitional Justice Practices and Long-Term Effects of These Practices

1. Introduction

South Africa’s transitional justice practices aid in the transition from apartheid to post-apartheid life in term of institutional reform and a relatively accurate depiction of the apartheid experience. Pragmatic steps are clearly taken in order to aid the transition which provides explicit institutional adjustments and changes in regimes. The failing of the transitional regime is the lack of reconciliation and gaps in amnesty laws in aiding to that reconciliation. That lack of changing the hearts and minds of South Africans has allowed the continuous barriers of ingroup and outgroup dynamics to prevent thick and long-term reconciliation. By analyzing the historical context of pre-apartheid events and how those should be applied throughout the transitional practices in Part II, the understanding of how reconciliation remains unfulfilled begins to become apparent. This point is continued in Part III when defining amnesty laws in South Africa and exploring those capacity gaps that the 1995 Promotion of National Unity and Reconciliation Act allows. Furthermore, Part IV is an exploration of the potential to fill the capacity gaps mentioned in Part III through the additional practices proposed in the 1995 Act, such as the South African Truth and Reconciliation Commission (TRC). Lastly, Part V presents the long-term effects of amnesty laws capacity gaps with consideration of historical context and the potential to fulfill those gaps in supplementary transitional practices. The principled ideology of South Africa post-apartheid has been left unaffected largely due to amnesty laws and victim/survivors discontent with them, even if there are laws preventing the physical oppression of Blacks in South Africa.

2. Historical Context

A. TRC Report on Historical Context

The TRC of South Africa has a final report of their findings that totals to about 512 pages long. In this report there is a very brief overview of what has occurred in South African history that led to or may have possibly affected the actions of actors in the apartheid. This overview is broad enough to encompass many aspects of history in South Africa but vague enough to do so superficially. The analysis puts the events of the mandate in context but fails to further explore the events by using six bullet points that are in context. There’s a lack of explicit explanation of the historical context being discussed but is doing so because the exploration of this would be too long-winded and overpower the purpose of the report, the truth of apartheid and an exploration of the time period being covered in the mandate, 1960- April of 1994. Because this context does create a scope of how this is to be framed and the relevant long-term consequences of the actions, this paper does go more in depth in the historical context that was mentioned in the report.

Primarily mentioned in the report is the “importation of slaves to the Cape and the brutal treatment they endured,” (TRC Report, 1998, p.25). This is broad enough to encompass many aspects of slavery that occurred not only in South Africa but throughout all of African nations due to colonization. The first colony that was established in South Africa, in Cape Town, was established in 1652 by a Dutch colonizer, Jan van Riebeeck. The relation between the indigenous groups and the colonizers was originally mutually beneficial but as it subsequently became more hostile as slavery was introduced. Slavery aided in the subduction of the indigenous people and disqualification of their needs (“History of slavery and early colonization in South Africa”). As this trend began to spread, it established a separation between those with power and those without; pitting different indigenous groups to begin enslaving each other. This importation of slavery as an idea has divided indigenous African people among themselves and established a binary between the indigenous and the colonizers.

The second bullet point addresses “The many wars of dispossession and colonial conquest” (TRC Report, 1998, p.25). In conjunction with the aforementioned discussion of slavery colonization in Cape Town, there is reference to the resistance between the enslaved and the “masters”. This is a string of many wars beginning with the war against the Khoisan in 1659. When the Dutch arrived in the Cape they clashed with the indigenous people in that area, the Khoikhoi and the San. They were often grouped together due to their language and cultural similarities as the Khoisan people despite the fact that they lived in isolation of one another. The war consisted of fighting for ownership of land and livestock, which was eventually won by the Dutch (Thompson, 2018). The end of the wars that are considered by this bullet point in the historical context of the TRC Report is the Bambatha Rebellion of 1906. This rebellion was led by Bambatha kaMancinza, who was the leader of the Zulu people. The rebellion was led against British taxation and rule and was eventually lost due to the beheading of Bambatha in battle. These wars of dispossession and colonial conquest did not begin or end in this time frame, decreasing the credibility of the time frame but does making an accurate point of how the struggle between indigenous groups of South Africa and colonizers.

The third point made in the TRC Report is “The systematic hunting and elimination of indigenous nomadic people,” (TRC Report, 1998, p.25). The report specifically mentions the hunting of Khoi-khoi and Sans by the British and the Boer. The British and Boer arrival in South Africa created boundaries that caused the hunting of Khoikhoi and San people who were using the land they had been for their entire history. The boundaries that the British and Boer set-up were an unreasonable justification for the systematic killing of indigenous people (Thompson, 2018). The correlation between the systematic hunting and apartheid is the continuance of hunting of indigenous people in South Africa. In addition there are omissions that are not specifically mentioned in the report such as the hunting of different indigenous people, more recently to apartheid.

The fourth mentioned point in the TRC Report is Difaquane. This is described as a time between 1815 and 1840 where there was increased conflict between indigenous groups and not colonizers. There is a lot of variable causes of this conflict but most notably was the introduction of maize to South Africa by the Portuguese. The introduction of maize aided to the increase of population of indigenous people and then conflict over arable land (Wright and Cobbing, 1988). This is relevant to apartheid as it makes the important point about the conflict between the indigenous groups as perpetrated by external forces. Difaquane is not the only example of this conflict but is notable because it was specifically mentioned by the TRC Report.

The fifth point that was mentioned in the TRC Report is the South African War of 1899 to 1902, also known as the Second Boer War. This war was between the British and the Boer in South Africa which consisted of the British herding Boer women and children into concentration camps and committing gross human rights violations killing around 20,000 people (TRC Report., 1998, p.26). This point had the most specific aspects attached to it and it was also the only point that specified the victimhood of colonizers. This point made is relevant as it adds to the fact that a perpetrator-victim relationship is not exclusive and it is ever changing as it continues to evolve. There is not one side of conflict that is entirely victim nor entirely perpetrator and this conflict being a part of the historical context is evident of this relationship not being entire dichotomous.

Lastly the “genocidal war in the early years of this century was directed by the German colonial administration in South West Africa at the Herero people,” was mentioned in the TRC Report (TRC Report, 1998, p.26). This war occurred between 1904 and 1908 and was begun by a rebellion of both the Khoikhoi and the Herero people against German acquisition of land in western South Africa. The rebellion was due to the increasing frustration of indigenous people with increased colonization and its effects on their lifestyle and usage of their own land. The response of the Germans was to order the killing of all Herero men and the driving of Herero women and children into the desert (Brigman, 1981). These acts of genocide during the Herero war time speak to the similarly perpetrated acts of genocide during the time of apartheid as well as a lasting disconnect between indigenous people and colonizers.

Additionally mentioned in the TRC Report is the 1960 Massacre in Sharpville which provides the initial event beginning the mandate for the TRC. This was only the latest event in a series of killings of civilian protestors in South Africa. Protests formed in Sharpville against laws that require passports in order to move around South Africa for Blacks (“Blacks” typically meaning non-whites with the further classification of Africans, Asian/Indians, and Coloureds (Leibbrandt, Wollard, Finn, and Argent, 2010)) known as “pass laws”. Dozens of protestors were killed and many more injured on March 21st, 1960 and led to other closely related strings of attacks based on pass laws. This also led to a nation-wide state of emergency and other acts of rebellion. It is because of the fallout of this massacre and the panic that subsequently ensued that it is the beginning of the mandate.

B. Historical Context Application to Apartheid

South Africa was an economic stronghold in the world and having control of the Indian Ocean was one of the strongest trade points a European country could hold. This fact not only incentivized but mobilized many European countries to stake a claim on a country that was already populated. The wants and needs of indigenous people became less and less relevant to the colonizers because they were not utilizing the ports for trade and wasting the opportunity. The economic advantages of using this trade port outweigh the needs of the indigenous that they originally had a mutually beneficial relationship with (“History of slavery and early colonization in South Africa”). It is due to factors such as these that South Africa was colonized by many different European countries, primarily the British and the Dutch but also including Germany and Portuguese.

The acts of colonization in the aforementioned parts of the TRC Report have strong ties to acts of apartheid. Differences in culture between the colonizers and indigenous groups created barriers in language, work, and also empathy. There was very little understanding of the adversary when it came who deserved what land and colonizer entitlement. Even today, White people whose ancestors were colonizers remain in the country, as that is the only country they have known and the advantages that White people in South Africa are given far outweigh that of their Black counterparts. People in African countries are given traditionally white names, wear traditionally white clothing largely because of the need to attempt to identify with the in-group. There is a large difference between a healthy diffusion of cultures and the forced adoption of an ingroup of cultures, and South Africa exemplifies the latter, as it is not an equal diffusion.

Ingroup, outgroup dynamics play a very heavy role in South African lifestyle through apartheid but also post-apartheid. Many history classes gloss over the fact that post-apartheid Blacks and Whites did not immediately reach peace as it is an ever growing struggling to come to terms with colonization that dates back centuries. The dynamics of having a visible and obvious identity such as race, which is an open-identity, as opposed to an identity that is concealed such as sexual orientation which is a concealed identity, as the identities of sides are more likely to be assumed. The dynamic of racial identity plays an important role of what options are being considered and how should they be applied, as the tension between races will continue and prevent reconciliation as they are correlative with sides in a conflict.

Race and colonization play huge factors when considering historical context for what has and should have occurred in South Africa and to what extent. While the TRC Report made good mention of valuable historical events they varied between their vagueness and specificity. They also did not specifically address the ways in which they specifically correlate to the scope of the truth at hand. The additional information applying the dynamics of economics and social matters of colonization as well as the dynamics of ingroups show more specific guidelines should be followed when considering the effectiveness of amnesty and the transitional justice practices South Africa has laid out.

3. Amnesty Laws

A. Defining Amnesty Laws and the Promotion of National Unity and Reconciliation Act

of 1995 (TRC Act)

Due to amnesty being a formal law or decree that states that no proceedings, criminal or other, will take place or be pursued in respect to the action or offenses during a time of unrest, it has the potential to cause gaps in the perspective of victim/survivors due to the freedom granted to their perpetrators. Amnesty as part of transitional justice practices is practiced in many different ways including but not limited to; blanket amnesty, self declared amnesty, and de facto amnesty. Blanket amnesty was the large grouping of people and foregoing the pursuant of charges of the whole regardless of acts. Self declared amnesty consists of amnesty granted for those still in power and de facto amnesty being the widely understood concept that proceedings will not occur for those accountable.

Amnesty Laws play a large role in how South Africans have reconciled with apartheid or not. In South Africa the amnesty granted was individual conditional amnesty. Individual amnesty is the specific allowance of amnesty in a case by case basis. Conditional amnesty is when amnesty is granted under a condition such as full disclosure of acts perpetrated (Mallinder, 2007). When negotiating the 1993 interim constitution there was the initial inclusion of amnesty in transitional justice practices in a vague “post-amble” (Hayner, 2011). There was a subsequent legislation, Promotion of National Unity and Reconciliation Act of 1995 (DOJ & DC, 1995), that provided very specific guidelines for the TRC which included guidelines on amnesty and how and when it would and could be granted.

According to the TRC Act all forms of amnesty needed to be considered within a very specific scope. The application for amnesty must commence within 12 months of admitting responsibility for the event and the application of anyone presently imprisoned has priority. The TRC Act only considers acts, omissions, or offenses between the years of 1960 and April of 1994. The act requires an investigation to uncover particulars about an application in order to inform and decide that the act being applied does or does not correlate with a political objective. The guidelines for what is considered a political objective in this case are also clearly stated and listed, including but not limited to an act of following orders based from a political organization, a former employee of the state, or any involvement in any form of a coup d' état. All of the information in this paragraph give a sparse outline of how the TRC Act was applied to amnesty.

When the Amnesty Committee was considering application there were explicit and objective requirements that had to be reached, some of which are listed above, but there were other more subjective factors being considered. Some of these factors included;

“...the committee was directed to consider the relationship between the act,

omission, or offense and the political objective pursued, and in particular

whether there was ‘proportionality’ between the act and the political objective

pursued. Any crimes committed for personal gain, or out of personal malice, ill

will, or spite, were not eligible for amnesty. Neither an apology nor any sign of

remorse was necessary to be granted amnesty,” (Hayner, 2011, p. 29).

These factors helped shape how the consideration of the Amnesty Committee were made in a way that reflected the malleable nature of human morality and inevitable gray area. The Committee being given a platform to use their discretion created an allowance of gray areas and flexible boundaries to perspective freedom. This very same discretion can allow an opportunity for bias to play a role in decisions, similar to how bias would in any form of decision making. The way that the committee is established is the President and TRC appoint a Chair and Vice-Chairperson which is an important variable when considering amnesty decisions.

B. Steve Biko Example Case (Trigger Warning: the description of this case includes

explicit and violent details of an activists’ death)

In order to more completely and wholly understand how amnesty is applied, this is the case of Steve Biko’s death and their perpetrator’s appeal for amnesty. This case is also a case that attracted a lot of attention due to the controversial decision by the Amnesty Committee. Steve Biko was an anti-apartheid leader in South Africa and founded the Black Consciousness Movement. Biko and a friend were arrested on their way to Cape Town on the way to a political meeting. After being brought in for interrogation, he was then driven 500 miles across South Africa, and died in his jail cell. The perpetrators were officers including Daniel Petrus Siebert, Jacobus Johannes Oosthuysen Beneke, Rubin Marx, and Harold Snyman who passed prior to the ruling (Daley, 1999). All of the officers who could, did apply for amnesty under a defensive argument and stating a story that seemed to conflict with all known facts of the case.

The story that the officers gave is that Biko lunged at them and subsequently hit his head on various objects in the room, including a table and ramming his own head into a wall. In addition they gave the wrong date of Biko’s arrest in order to mess up the timeline, as the officers waited before bringing Biko to the hospital. The officers stated they took Biko to the hospital when they could but Biko had died in his cell. The officers maintained that Biko’s death was accidental. The facts given by the officers are inconsistent with the indisputable facts of the case such as the false date of arrest, the suspended trip to the hospital, and the gross mistreatment of Biko’s remains after his death. These disputable facts pointed in the direction that the story was false, which contrasts precisely what amnesty applications are available for, giving victims or their surviving family the truth of what happened to them or their loved ones.

The Amnesty Committee denied this request for amnesty for reasons that are easily understood and put the mission of amnesty into a digestible understanding. Since the officers maintained that the death of Biko was accidental, there was no possibility for that to be a political objective. If the story the officers were telling was true, that their passive neglect caused Biko’s death, then it is not within the scope of the Amnesty Committee to decide the verdict of that case. There is no scenario in which a passive action has political intent, due to it not being done intentionally. Additionally, the story that was told was primarily false and could not be proven to be true. Therefore the officers do not comply with a full and complete admission of the act, omission, or offense that they were a part of. The purpose of the full and complete admission is not necessarily for penance but aids in the healing of victims and surviving family as well as the compilation of history for the TRC and educational institutions (Hayner, 2001).

Amnesty laws were put in place in order to create effective and pragmatic responses to apartheid and the gross human rights violations that accompanied it on either side. Amnesty laws are an effective step in creating an accurate archival of events during apartheid. Unfortunately, amnesty does lack victim-centered elements when approached by itself due to victims being minimized to only a story told by their perpetrator. Victims are given little role to play in the addressing of their perpetrator. It is also important to consider the discretion of the Committee and the role their bias can play given external factors. In the mentioned case study, Steve Biko’s widow was the first to bring up a suit against the TRC Act due to the allowance of amnesty and without appeasing Biko’s widow, amnesty laws could have been overturned (Laplante, 2009). While the specifics of the laws surrounding amnesty are in depth, when performed alone amnesty creates gaps of authority and areas where laws don’t apply.

4. Additional Transitional Justice Practices Applied

Amnesty laws become dangerous when not applied in conjunction with other Transitional Justice practices. In this case there’s the TRC, reparations, memorialization, and institutional reforms such as the Constitutional Court and educational reforms. Everyone one of these additional practices have a role that they play in South Africa. More specifically, these additional practices play a role in or lack of addressing capacity gaps that South African Amnesty Laws have created.

A. South Africa’s Truth and Reconciliation Commission

The aforementioned TRC Act that created specific guidelines for amnesty laws, worked very similarly when applying to the Commission itself. The objectives were to create national unity and reconciliation through the means of understanding. While that statement is relatively vague, the TRC specifies by stating the goals intended to be achieved, establishing the causes, nature, and extent of the conflict through 1960 and 1994 by holding hearings and conducting investigations, granting amnesty in compliance with the guidelines described in part III, establishing dignity to victims by granting the power for victims to tell their own stories, and compiling a report with comprehensive findings of the TRC. Those objectives set out a clear path and plan for the TRC to follow and adhere to.

The TRC Act gave a lot of power to the commission in order to complete their objectives. These powers granted included, “the Act gave the commission the power to grant individualized amnesty, search premises and seize evidence, subpoena witnesses, and run a sophisticated witness-protection program,” (Hayner, 2011, p. 27). With all of those powers it ended up costing the South African government $45 million throughout the two and a half years the commission was held. Additionally the TRC only employed some of these powers such as search and seizure only a few times when compared to the amount of time they could have. The TRC act granted a lot of mechanisms in order to find the truth of the matter but the commission as a whole ended up being quite expensive for the South African government.

Additionally, this TRC had many positives which is why the South African TRC is cited and modeled for TRCs that have proceeded it. The South African TRC is often commended for its specificity on objectives and far reaching powers, even though the purview covers a limited time frame. The South African TRC aided in the mainstream usage of truth commissions due to their commendations of how the TRC was utilized (Laplante, 2009). The commendation of the TRC does occur due to external factors such as the group in power at the time of the TRC is led by Nelson Mandela, who was the most prominent adversary of the former regime, meaning he upheld the work of the TRC. This is not always the circumstance when transitional justice practices are proposed, giving this TRC a flexibility not always granted prior to.

B. Documentation, Reparations, and Subsequent Memorialization

Documentation in South Africa was crucial to the continuation of the TRC. The TRC has become a specific form of record-keeping and documentation for the country as the state imposed amnesia under the apartheid regime has created a large amount of censorship and lack of information all around. Under the 1979 amendment to the archival act, “the State Archives Service was obliged by limited resources to select only a small proportion of public records for archival preservation,” meaning that there was little documentation of the apartheid government outside of legislation (Harris, 1999, p. 3). The lack of documentation by the government meant that the duty of the TRC to have accurate record keeping from its creation in 1995, forward (DOJ & DC, 1995). There was meticulous record keeping of victim/survivors stories and any verification of those stories with supplemental documents that was around, was provided. The opportunity to share those stories did give victims/survivors a chance to play an active role in how the story is subsequently told when they did not have as much control surrounding whether or not their perpetrator was given amnesty.

In terms of reparations, the reconciliation of past injury and harms perpetrated on victims comes in a few forms. The TRC offers an avenue as which to receive reparations, but the burden of receiving reparations falls on the victims/survivors to apply for it through this method. The TRC had the Committee on Reparations and Rehabilitation, in which a victim/survivor could apply to for reparations, if their application was deemed valid. While it is relatively unreasonable for the post-apartheid government to seek out all victims/survivors to give them reparations, the application process does create barrier. These barriers include the lack of time or ability to complete the application, causing victims/survivors to decide whether or not the cost of applying for reparations is worth it, even if it is something that they deserve. Another aspect of the application process that would be dissuading is putting in the effort to apply and then being rejected for lack of evidence or their story not being “as bad”.

Secondly, there were options to pursue legal action against people or corporations for reparations. This form of restitution was rare and not endorsed by the government, but it did occur. In November of 2002, “...two activist groups in South Africa filed suit in a U.S. federal court against twenty global corporations for allegedly encouraging human rights abuses by doing business in apartheid South Africa,” (Biondi, 2003, p. 16). This form of reparations is not traditional as it requires even more effort than an application for reparations, but there were benefits of this method. There was less of a burden to prove an individual's horrific stories because the aggregate plaintiff could prove based on evidence they had as opposed to locating evidence. The South African government wanted to use western investments in order to improve South African infrastructure and feared that a lawsuit would tarnish relations between the western countries. The use of legal action is a creative way to hold western investors accountable through legal and capitalist methods.

Another use of reparations was through the allocation of funds towards memorialization. This use of reparations toward memorialization of the atrocities that occurred is a way to ensure state recognition of an event and give victim/survivors not only a place to heal but also validation for their experience. Using memorials as a form of reparation help to prevent future acts of the atrocities as well as counteract any intentional over-looking of the historically oppressed indigenous and black communities in South Africa. Memorials take importance due to the fact that, “Material reparations and compensation serve the same psychological ends as symbolic acts. They are both attempts to ritually create symbolic closure,” (Hamber and Wilson, 2002, p. 44). The memorialization goes beyond monetary allocation but also holidays, March 21st is a national holiday in South Africa to honor human rights and memorialize those killed in the Sharpeville massacre.

All of these forms of these supplementary aspects of the TRC only go so far in filling the gaps that amnesty creates in South Africa. The lack of victim-centered amnesty creates far reaching concerns surrounding the granting of amnesty and continuous effects that the perpetrators freedom has on their victims and the citizens of South Africa as a whole. It is also important to mention that this is not a full compilation of all of the transitional justice practices that South Africa has implemented, as that list would be extensive. There are actions taken by the government outside of the TRC and by civil society, but these were chosen as they are the most frequently cited of the practices.

5. Long-Term Effects of Amnesty and Apartheid Not Addressed in Transitional Justice Practices

As it was touched on in the discussion of amnesty laws and additional transitional practices, the capacity gaps that amnesty laws created were not perfectly filled. There are lasting effects of ingroup outgroup dynamics that were presented historically, victim discontent, and economic injustices that are still everlasting. Even so it is also important to recognize the vast improvements that are made specifically in economic means but nonetheless there are still necessary gaps that need to be addressed in order to reach thick and long lasting reconciliation post-apartheid under policies that granted amnesty.

A. The InGroup-OutGroup Dynamic

The use of amnesty for pragmatic means, as prosecuting people tends to be high cost and take a long time, prevents the evolution of principles and morals in South African ingroups. These classifications are made in relation to race or ethnicity which is a separation of identity that in open and visible. Concealed identities have a dynamic among themselves such as in Nazi Germany there was a threat to Jewish people of who was a former Nazi and not knowing considering the identity of being Jewish was less visible. With open identities the threat lies in the assumed association with either side of the conflict, creating a distrust in people in their community who do not share their race or ethnicity (Goffman, 1963). Due to the blatant ability of ingroup and outgroup recognizability this dynamic is important to consider in reconciliation projects moving forward and amnesty laws don’t reconcile.

Amnesty laws allow for those whose perspectives actively persecuted their adversary, to maintain that belief, aiding in transition efforts but preventing reconciliation. The prevalence of distrust and unhappiness with the transitional efforts expand beyond victims of direct persecution but also to their descendants and either side of the conflict as a whole. Additionally, the use of these beliefs are even prevalent through legislation such as laws preventing the hunting and grazing of Khoi-Khoi and San indigenous groups today (Thompson, 2018). The perpetration of extremist beliefs in both ingroup and outgroup do create barriers among them and the segregation of groups in ideology and trust. While it is harder to administratively adjust the morals of citizens as a whole the filling of amnesty law gaps could potentially benefit the masses.

B.Victim/Survivor Discontent

The primary gap that amnesty laws allow is the lack of victim centered justice. There are a lot of victims who feel that the use of amnesty did not fill their needs. Many victims/survivors dissented from the idea that amnesty would assist in reconciliation, as “victim-survivors rejected the decision and lobbied for full criminal justice, the press coverage and public reaction to the decision dismissed their concerns due to the hegemonic language of reconciliation,” (Laplante, 2009, p. 930). There was enough discontent that the TRC Act was challenged both internationally and domestically, as previously mentioned led by Steve Biko’s widow. The lack of opinion given to victims/survivors in reference to addressing their perpetrator shows the overlooking of victim/survivors needs in for the purpose of a “seamless” transition.

In addition to direct consideration of victim/survivors there’s a perpetration of political motives absolving gross human rights violations. Victim/survivors lacked control in what happened to them and the additional use of amnesty in the manner used in South Africa prevented victim/survivors from having any control over the fate and potential freedom of the perpetrator. This perspective works in a way of both invalidating those faced with gross violations of human rights and their experience while also setting precedent for the future absolving of violations in the name of political action. This is not an effective deterrence as it has the capacity for a perpetrator to strategically orchestrate a defense and gain freedom even if it is undeserved in terms of the law. In addition it doesn’t assist principally due to the fact that perpetrators have to admit what they’ve done but are not required to apologize or reflect remorse (DOJ & DC, 1995). This further perpetuates the divide between ingroup and outgroup relationships by creating barriers. The description of a vicious act of human rights violation in accompaniment of the lack of remorse for that act has aided to a further divide than it has a healing environment.

The limited time frame of the TRC additionally prevents reconciliation with past harms that have led to the production of apartheid and the ingroup outgroup dynamics. The TRC Report concedes that the Commission can only cover a limited time frame and cited the reason why it only covered this specific time frame as,

“In a continental context, this [the timeframe of the mandate, 1960-1994]

represented the last great chapter in the struggle for African decolonization. In a

South Africa-specific context, it was the climactic phase of a conflict that dated

back to the mid-seventeenth century,” (TRC Report, 1998, p. 25).

Unfortunately, that synthesis of history into only a specific time period prevents relevant acts that took place prior to, or even some circumstances after, from the benefits that the mandate allowed. Acts that took place outside of the mandate prevented victim/survivors from gaining the entirety of the truth of their circumstances through the full disclosure that amnesty laws require. Outside of the consideration of amnesty laws, this also meant the potential prevention of justice considering the domestic laws at the time did not correlate with international human rights laws. The mandate established a “luck” aspect of the event that a victim/survivor had no control over for knowing their entire truth of their perpetrator and what happened to them.

C. Economic Effects in Relation to Amnesty Laws

It would be remiss of anyone discussing the long-term effects of apartheid without mentioning the economic disparities of racial groups in South Africa, especially in respect to how they effect similar perpetrations of amnesty laws. South Africa is still dependent on western investors and maintaining a good relationship with them, which prevents the endorsement of international reparations (Biondi, 2003). These international reparations could have benefitted victims/survivors when considering healing but yet again, western influence prevented the overall economic prosperity of Blacks in South Africa. The prevention of western involvement in any major decisions of the TRC or South African government in relation to apartheid could have prevent this negative influence.

Western influence wasn’t the only aspect that prevented economic prosperity, the lack of consideration for economic transitions in the TRC has left the outgroup of Black South Africans from gaining social and economic mobility. In 2008, the economic situation for the subsects of Black South Africans consists of receiving 22% of the income of a White South African for Coloureds and 13% for Africans. Also considered is Asain/Indian South Africans who receive 60% of the income that a White South African receives.(Leibbrandt et al, 2010, p.13). The economic advantages of that Black South Africans have experienced consist of increased access to piped water, electricity, and formal housing but those non-monetary considerations still pale in comparison to White South Africans.

6. Conclusion

Amnesty laws have prevented the overall principled reconciliation of the transition from apartheid to post-apartheid life. The capacity gaps inherent in the South African amnesty laws has ingrained in it continuously marginalized both outgroup Black South Africans who have been displaced by western colonization and also victim/survivors. Through the history of South Africa, western influence is clearly outlined and colonization has strong and relevant aspects that correlate with it. Amnesty laws in their production aid to barriers that disenfranchised victim/survivors and prevent them from gaining control over their own situation. Additional transitional practices have the potential to fill these gaps but does not necessarily do so. Lastly, the long-term effects of amnesty laws, the prevalence of those effects in the lives of South Africans, and how they help the creation of barriers in relational dynamics. Although the transitional practices used in South Africa have reasonable justifications for their uses, the gaps prevalent due to amnesty laws should be considered when moving forward in South Africa and when the use of amnesty is used in the future of transitional justice.

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