'Not a Legal Concept'

If the decision had been mine, in all likelihood there would have been no TRC. I feared that confronting the hurts of the past could seriously endanger the fragile state of the transitional process in South Africa. Moreover, the holding of 'open hearings' included the presence of television cameras and the prospect of daily reporting. The O J Simpson trial in America had shown how a dignified process can easily turn into mere popular entertainment. Worse still, if that trial had far-reaching and racially divisive effects in America - what might jump out of the Pandora's box of South Africa's past?

A further reservation was that the TRC's enquiry process was expansive in nature; it sought to invite testimony from a very large number of witnesses and on a very broad basis. Unlike a court of law which conducts its enquiry into a predetermined charge or legal action attempting to focus on that which is strictly relevant to such enquiry, this was an invitation to all to 'let it all hang out'! Would the TRC ever finish its work? Would it be able to arrive at some constructive conclusion? It seemed doubtful.

Also dubious was the preponderence of non-lawyers sitting as commissioners! Would they be objective and impartial? Would they be able to cope? What was the basis for selection?

In the event all these apprehensions were essentially based on a fundamental misconception of the TRC as a judicial body. The TRC is not, and was not intended to be, a court of law. It was not created to make a judgment; it was created to help ventilate the evidence, establish the truth and bring about reconciliation. Unlike a court it does not aim at a conclusion so much as a process. This process was designed not for the purposes of recrimination but instead aimed at confronting the injuries and injustices of the past and coming to terms with them. It is in this light that a picture emerges of a new kind of institution which has achieved what a court could never achieve.

Reconciliation and the lawyer

'Reconciliation' is not a legal concept - and more's the pity! One suspects that whoever thought of the idea of a Truth and Reconciliation Commission was surely not a lawyer. In the courts of law legal language and concepts have evolved that are primarily suited to the arena of claiming and enforcing legal rights. The process is adversarial and the language and thought processes likewise.

Effecting reconciliation is a process which requires confronting the truth and thereafter aiming at bridging differences, healing and understanding. This latter process has traditionally been well outside the scope of the lawyer's professional attention. Perhaps the closest that lawyers come to reconciliation is when work is snatched away from them because the parties to a conflict have reconciled their differences and no longer need them!

One is reminded of the tale of the crusty English law lord who, finding that his heirloom barometer had again failed to correctly reflect the weather conditions, expressed his frustration and rage by throwing it out of the window into the driving rain, shouting after it, "there now, see for yourself!" He effects a complete (if drastic) confrontation with the truth but clearly has no hope of effecting a reconciliation!

One of the great strengths of the TRC is that although it has some of the powers and characteristics of the courts (for example to hear testimony and if necessary to subpoena witnesses to testify) it does not have the main function of the courts in being obliged to pass binding judgements.

Ironically it is these non court-like characteristics that have enabled us, the general public, to hear a wide ambit of evidence which has raised questions about the role of the courts, police and instruments of law order and justice in our society. Most of the violations by officers of the state against individuals were utterly illegal and yet the system of law and order failed to ensure that its own legal standards were upheld. In short the system was open to considerable corruption. If we can clearly recognise the disparity between theory and reality we might be able to correct this.

The gathering of 'lost testimony'

A conspicuous achievement of the TRC's open policy of hearing evidence is that a large number of victims and their families have been able to come forward and tell their stories. Often these stories have not formed a part of any enquiry or trial, or if they have, have been heard by very few. Much of the testimony has consisted of profoundly moving descriptions of human suffering which would have otherwise gone unacknowledged and unknown on a broader basis by the rest of society. The message has been a clear portrayal of the tragic face of South Africa.

The dilemmas of amnesty

One of the criticisms levelled at the TRC process is that its machinery provides for the granting of amnesty to wrongdoers from civil and criminal prosecution. In order to qualify for amnesty persons who apply must show that the wrongs committed were politically motivated and a full and frank disclosure has been made. Clearly many will bitterly resent the instruments of their distress escaping punishment but it is a price that is paid for the overriding requirement for the truth. Retribution is seen here as of lesser importance.

One of the most strikingly successful aspects of the amnesty system is that it has encouraged people to testify and resulted in the hearing of evidence which would otherwise never see the light of day. This is especially the case where killings are admitted and described by the perpetrators but also many instances of police brutality and torture of suspects.

Exposing the world of the wet bag

As a practising advocate there is an area where the TRC has been particularly meaningful to me. In the course of some years at the bar I have represented numerous accused persons who have signed written statements confessing their involvement in the serious crimes for which they were charged. A distinct pattern has emerged: the confessions have frequently been denied as having been freely and voluntarily given. Instead, in case after case, the accused have described how they were tortured to extract their acquiescence to a 'confession'.

Commonly the form of torture described involved the accused being lain down on his stomach on the floor of an empty cell. His wrists would normally be bandaged with cloth (to prevent graze marks) and his hands would be hand-cuffed together behind his back. His tormentor would then stand astride him with his feet placed against the suspects ribs below his armpits. Outward pressure exerted on the inside of the elbows - pushing them outwards - would effect a sensation of dislocation and pain in the wrists, elbows and shoulder joints. This would leave no bruise or mark but could cause great discomfort.

Then a bag would be pulled over the suspect's head and doused with water. Pulled from behind, the wet bag would be stretched over the suspect's face, preventing him from breathing. A session or two of such treatment would normally elicit the required story or signature.

In one trial after another accused persons would testify to having suffered this treatment. Time and again the investigating officers would deny that such things existed at all let alone in the particular instance in question. In the absence of some collaborating evidence the courts would repeatedly be obliged to dismiss these claims and the accused would find themselves disbelieved.

It was at a recent hearing of an amnesty application hearing of the TRC that a policeman finally came forward and admitted having practised this form of torture as a matter of course on a large number of suspects over a long period of time. He demonstrated the process for the commission and the television cameras.

This was a chilling exhibition but one that had a powerful message. The police conspiracy surrounding the secrecy of the 'wet bag' procedure had finally been publicly broken and many victims will feel exonerated and derive some comfort to know that, at last, the police have admitted it and everyone has been able to see for themselves.

It should be borne in mind that while the cases to which I refer are in no way connected to the work of the TRC, it was nonetheless the amnesty and TRC process which finally and formally exposed this evil. Moreover this is an evil not merely of the apartheid years but of the present too.

The future of the TRC-type process

If there is something that can be learned from this it is that the TRC process seems to be working very much according to plan. Now that it has shown its worth in conducting hearings on the wrongs of the past, let us not abandon the idea. Once the TRC has finished its work, let us seriously consider a permanent body to be known perhaps as the Truth and Reconciliation Board - which could guard against the wrongs of the future.

Richard Penwill is an advocate of the High Court of South Africa.

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