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ICTJ Activity

ICTJ established an office in Cape Town in the second half of 2004, enabling more extensive work in South Africa and the region. Under the auspices of this office ICTJ has continued its flagship Transitional Justice Fellowship program, which it first launched in 2002. Conducted in partnership with the South Africa-based Institute for Justice and Reconciliation (IJR), the program previously spanned a three-to-four-month period. In 2008 the program was replaced by an intensive three-week course.

As of spring 2009, the Cape Town office was engaged in two lines of litigation in the South African courts to secure accountability for crimes committed during the anti-apartheid struggle. While some perpetrators received amnesty in the Truth and Reconciliation Commission process, many of those who did not receive amnesty have been granted a de facto indemnity from prosecution, and some who have already been convicted of crimes may now receive pardons as a result of a special presidential process. ICTJ is opposing both forms of impunity in court.

The Prosecutorial Indemnity

To balance justice and reconciliation and to advocate respect for international law, the Cape Town office has joined other South Africa organizations, including the Centre for the Study of Violence and Reconciliation (CSVR), the Khulumani Support Group, and the Legal Resources Centre (LRC), to support a claim brought by apartheid victims against the National Prosecuting Authority's (NPA) policy to provide perpetrators with a second chance at amnesty. A 2005 set of amendments to the NPA's prosecution policy allowed the NPA to decline to prosecute political crimes in exchange for full disclosure by perpetrators. ICTJ and its partners have successfully challenged this back door amnesty: the Pretoria High Court declared the policy amendments unconstitutional on 12 December, 2008. The NPA subsequently lodged an application for leave to appeal, currently pending.

The Pardons Reference Group (PRG)

In November 2007, then-President Thabo Mbeki announced the formation of a multi-party Pardons Reference Group (PRG) to solicit and consider applications for pardon for politically motivated crimes committed before June 1999. Mbeki described the process as a way of addressing the "unfinished business" of the Truth and Reconciliation Commission (TRC). Unlike the TRC, however, the Pardons Reference Group was not asked to hear the testimony of victims, and its proceedings were to be kept secret. Following a March 13, 2009 letter from interim President Kgalema Motlanthe's lawyer indicating that he plans to go ahead with the process, ICTJ and its coalition partners took the case to court as a matter of urgency. ICTJ's coalition partners include CSVR, Khulumani, IJR, the South African History Archive (SAHA), the Human Rights Media Centre, and the Freedom of Expression Institute (FXI). The LRC has provided legal counsel.

The Southern African Regional Assessment (SARA) Project

A decade after the production of the final report of South Africa's Truth and Reconciliation Commission, the process has come under scrutiny, with some in civil society focusing on various gaps in the Commission's work. One criticism is that the TRC process was predominantly inward-looking and largely overlooked the regional dimensions of mass violations by the apartheid regime. In response to this concern, ICTJ undertook a regional study of transitional justice in 2008. This regional assessment examined the transitional justice landscape in Angola, Mozambique, Namibia, Zimbabwe, and South Africa, as well as the connections between these countries' unique experiences. The Cape Town office partnered with other South African organizations (IJR, Idasa, and CSVR), as well as national organizations in Namibia, Mozambique, Zimbabwe and Angola, to conduct assessment missions in each of the five countries. The resulting reports were released for discussion at local roundtable events in March 2009. The reports are available here.

Local partners included Namibia's Legal Assistance Center (LAC), Breaking the Walls of Silence (BWS), and the National Society for Human Rights (NSHR), PROPAZ in Mozambique, the Research and Advocacy Unit (RAU) and Zimbabwe Human Rights NGO Forum in Zimbabwe, and the Development Workshop in Angola.

Click here to contact the Cape Town office, headed by Comfort Ero, ICTJ's deputy Africa director.

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Background

South Africa emerged from more than four decades of apartheid in 1994, with the election of Nelson Mandela as president. The apartheid era was marked by political violence and human rights violations, including massacres, killings, torture, lengthy imprisonment of activists, and severe economic and social discrimination against black South Africans. The release of Nelson Mandela from prison in 1990 advanced negotiations among the government, the African National Congress (ANC) and others, resulting in the relatively peaceful elections and transfer of power in 1994.

After 18 months of intense debate and preparation, in 1995 the South African Parliament passed the Promotion of National Unity and Reconciliation Act, mandating the establishment of the Truth and Reconciliation Commission (TRC). The Commission was chaired by Archbishop Desmond Tutu and co-chaired by former ICTJ president and current Chairman of the Board Alex Boraine. Hearings began in April 1996, and in October 1998 the Commission published and presented its seven-volume report. Testimony was taken from more than 23,000 victims and witnesses, of whom more than 2,000 appeared in public hearings.

The most controversial aspect of the TRC's mandate was the offer of an "amnesty for truth" for perpetrators of human rights abuses who were willing to confess their crimes. It raised concerns about the continuation of an aura of impunity, given the prosecution of few persons implicated in human rights crimes in the past decade. The 1996 conviction of former Vlakplaas commander Eugene de Kock remains the sole marker of success, despite the fact that the "amnesty for truth" deal was predicated on the prosecution of those who did not qualify for an amnesty through the truth commission process.

The TRC's final report was publicly released in early 2003. The government made modest, one-time reparation payments to victims identified by the TRC at the end of 2003. In November 2002, South Africa's principal victims' organization, the Khulumani Support Group, sued 23 multinational corporations in U.S. courts, seeking civil damages for the role these corporations played in aiding and abetting human rights violations committed in apartheid South Africa. ICTJ contributed legal assistance in the case. In October 2007 apartheid victims and human rights organizations achieved a major victory: in a surprise landmark ruling, the U.S. court allowed them to bring their claims for compensation. This far-reaching judgment has been called a "watershed moment in legal history," since it opened the door for victims of state repression worldwide to hold accountable under the U.S. Alien Tort Statute those who directly and indirectly support violations of human rights.

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(Updated April 2009)