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The context of the call for a general amnesty in South Africa

Soon after the release of Nelson Mandela and the unbanning of the ANC in February 1990, negotiations began for the return of political exiles to South Africa, and for the release of political prisoners within South Africa. These negotiations led to the conclusion of two "Minutes," at Groote Schuur on May 4, 1990, and at Pretoria on August 6, 1990, which set up procedures and definitions to be used in the process of release and indemnity. All political prisoners were supposed to be released by April 1991, but the cumbersome procedure of application and review took longer than anticipated and was much criticized: in August 1992 the ANC continued to claim that there remained more than 400 prisoners who fell into the political category. This claim was rejected by the government on the grounds that the prisoners had all been convicted of murder and other serious crimes.

It was in the context of the debate over the fate of the remaining prisoners claimed by the ANC to be political that a general amnesty first came to be suggested: that is, an amnesty which would apply equally to supporters and to opponents of the government.² During the period of the multiparty Codesa (Convention for a Democratic South Africa) negotiations on the form of a transition to democracy in South Africa, which first met in December 1991, the status of the prisoners continued to be a divisive issue between the negotiating parties. In June 1992 the ANC suspended its participation in the talks in the wake of the killing of more than 40 residents of the black township of Boipatong, and demanded a full inquiry into security force complicity in political violence. Nevertheless, bilateral talks between the government and the ANC continued to address the issue of political prisoners: their release was stated by the ANC to be one of the preconditions for resuming negotiations.

A Commission of Inquiry regarding the prevention of public violence and intimidation was appointed under Justice Richard Goldstone, and began its hearings. In late July and early August a United Nations mission, headed by U.N. Secretary-General Special Representative Cyrus Vance, visited South Africa for the first time, investigating ways to revive political negotiations. In a report published on August 7, 1992,³ the Secretary-General recommended that the Goldstone Commission undertake a series of investigations into the police, Umkhonto we Sizwe (the military wing of the ANC), the Azanian People's Liberation Army (affiliated with the Pan African Congress), the KwaZulu Police, and certain private "security firms." It was in response to these "observations," welcomed by the Commission and other parties, that the Commission first called for an amnesty for all groups to "make the work of the Commission more efficient." The South African government also backed the idea of a general amnesty, offering in exchange to release the remaining political prisoners claimed by the ANC.

In a press release issued on August 13, 1992, the ANC stated that, while not opposed in principle to the idea, the question of an amnesty "is properly the province of an interim government of National Unity" rather than of the existing white minority government, and should only be granted if the population as a whole had agreed. They disputed the contention that a general amnesty was necessary to facilitate investigations; since, in the normal course of events, the South African courts have the power to grant immunity from prosecution to individuals who cooperate with the court to assist in conviction of criminals. Moreover, the release of political prisoners should be unconditional, and not linked to any other question. The ANC therefore suspended continuing bilateral talks on the issue of political prisoners, and stepped up its mass action campaign.

Pressure for a resolution to the deadlock in central negotiations increased following the September 7 massacre of 28 ANC supporters protesting the rule of the leader of the black homeland of Ciskei. ANC President Nelson Mandela and State President F.W. de Klerk met for a "peace summit" on September 25, 1992, and on September 26 announced that they had reached an understanding that would clear the way for a resumption of the deadlocked negotiations. Among the terms of the understanding was the unconditional release of more than 500 prisoners, to be completed by November 15. A few days later de Klerk delivered a speech in which he purported to apologize for apartheid, stating that: "For too long we clung to a dream of separated nation states, when it was already clear that it could not succeed sufficiently. For that we are sorry." At the same time he refused to admit that apartheid was ever morally indefensible, and denied that South Africa's history was "dark suppressive and unfair."

On October 16, 1992 a bill was introduced in parliament that would empower de Klerk to forgive any politically motivated crime, with the sole condition of review in secret by a government-appointed commission. In contrast to the legislation implementing the Pretoria and Groote Schuur Minutes, the only public record relating to the decision would be a list of those to whom immunity had been given; and the records of the reivew body itself could be destroyed. The ANC condemned the measure as tantamount to a self-pardon by Nazi war criminals: a few days later it tackled its own history in very different style, publishing a hard-hitting report by an independent lawyer describing brutality in ANC detention camps in Uganda, Tanzania and Angola. Nelson Mandela, president of the ANC, accepted that the transgressions which had occurred were "inexcusable" in any context, and admitted that the leadership of the party shared "collective responsibility" for the abuses. On October 21, in a surprise development, the government's amnesty legislation was defeated by the Indian house of South Africa's tricameral parliament. The President announced that he would refer the bill to the president's council, a rubber-stamping body with the power to override parliament, where it is virtually certain to become law.

South Africa is at a crucial point in its transition process. The policy it adopts on accountability for past abuses will shape the character of any future regime. This comparative study of the experience of several Latin American countries is offered as a contribution to the debate on justice and reconciliation.