TRANSITIONAL AMNESTY IN SOUTH AFRICA

Vol. 18 No. 7 (July, 2008) pp.582-586

TRANSITIONAL AMNESTY IN SOUTH AFRICA, by Antje Du Bois-Pedain. Cambridge: Cambridge University Press, 2008. 418pp. Cloth. $120.00/£60.00. ISBN: 9780521878296. e-Book format. $96.00. ISBN: 9780511373015.

Reviewed by James L. Gibson, Sidney W. Souers Professor of Government, Department of Political Science, Washington University in St. Louis. Email: jgibson [at] wustl.edu.

There can be little doubt that the most widely known and studied truth and reconciliation process in the world is that conducted by the South Africans. In part owing to its innovativeness – but in larger part owing to the perception that the process was instrumental in keeping South Africa from falling into the abyss of civil war and perhaps even into partition or destruction – observers throughout the world have sought to extract lessons for transitional justice and democratization from the South African experience.

As widely admired as the South Africa truth and reconciliation process is, many misconceptions still surround it. For instance, it is often asserted that the world views the process as fantastically successful, whereas South Africans view it as an abysmal failure. In fact, that (and many other misconceptions) turns out to be untrue (see Gibson 2005). That the South African process was a hybrid of criminal prosecutions and grants of amnesty is also not widely acknowledged. If the process in that country is to be held up as an exemplar for divided societies to follow in their quest for reconciliation, then much more about its actual operation must be analyzed and understood.

That is why this book by Antje Du Bois-Pedain is so important. More – much more – than any prior effort to date, Professor Du Bois-Pedain has taken the closest, most detailed, and most comprehensive look at the amnesty component of South Africa’s truth and reconciliation process. Her book is a tour de force, encompassing as it does both normative and empirical issues associated with the process. Generations to come will thank Du Bois-Pedain for her exposition of how and why South Africa provided amnesty to those committing gross human rights violations during the struggle over apartheid.

Divided into nine chapters, TRANSITIONAL AMNESTY IN SOUTH AFRICA, traverses a great deal of territory. One of the most unique contributions of this book is that Du Bois-Pedain takes advantage of a data base of more than 1,000 amnesty decisions made by the Amnesty Committee of the Truth and Reconciliation Commission. This enables her to show the strikingly high success rate of amnesty applications made by bona fide politically-connected applicants. Importantly, her statistical analysis suggests that the proportionality of the offense (whether the degree of violence of a particular gross human rights violation was appropriate to the political objectives being pursed) may not have had much influence on whether amnesty was awarded. She asserts: “This loss of any moral limit to the kind of [*583] thing that can be done in order to achieve a particular aim can be observed in the preparedness of the Committee to label as proportionate acts such as torture and the random killings of innocent, politically passive individuals in order to incite public violence to disrupt the elections” (p.126, emphasis in the original). Conclusions such as these, grounded in rigorous analysis of the actions of the Committee, abound in the book, are often counter-intuitive, and are therefore a welcome corrective to the folklore on what the amnesty process actually did in South Africa.

But Du Bois-Pedain’s study is far more than a quantitative accounting of the Amnesty Committee, as valuable as that exercise is. Instead of mere description, she also assesses the process in terms of its success at discovering the truth, empowering victims, and holding perpetrators accountable – all stated objectives of the process. In general, her conclusion is that the process did indeed achieve the goals set out for it, although a number of caveats attach to this generalization.

For example, a large number of applicants sought amnesty, and, within the terms of legislation, applicants generally provided considerable information about their deeds and their motives. While reluctant to refer to this as the production of “truth” (recall that the Truth and Reconciliation Commission itself argued that “truth” has at least five different meanings), her pragmatic approach to evaluating the amnesty process leads to the conclusion that more information was produced by that mechanism than would likely have been generated by any other means (e.g., criminal trials). Costs with such an approach clearly exist – due process was often sacrificed – but for learning who did what to whom, and why, often in the distant past, the amnesty process deserves considerable praise. The caveat here, often voiced by critics of the South African process, is that the larger context of the apartheid regime is sometimes obscured by focusing on the discrete actions of individual combatants – though, as Du Bois-Pedain reminds us, some advantage lies in the fact that amnesty applicants can account for their past deeds in terms of their own understandings of them, i.e., as political actions, and not (merely) as crimes.

As to empowering victims, she acknowledges that the amnesty process succeeded in providing victims opportunities for participation – to challenge the applicants’ versions of events and to have their own stories told and heard – even while acknowledging that the process was not centered on the victims and that many of the victims were dissatisfied with the process. Many of these issues are endemic and well analyzed within criminal justice processes, and in the South African amnesty process, as elsewhere, the requirements of the victims and the needs of the larger society often clash.

Accountability is of course the most significant weakness of any system for granting amnesty, and Du Bois-Pedain is appropriately critical of the failure of the victims (or the society) to receive retributive justice. But even on this score, her judgment is less severe than that of many human rights scholars and observers. In the South African case, it is widely acknowledged that criminal prosecutions of large numbers of those accused of human rights abuses were not [*584] feasible, both in terms of costs and the low likelihood of success (e.g., enormous amounts of resources were expended on the unsuccessful prosecution of former Minister of Defense General Magnus Malan). Given the South African reality – and the desire to learn about the past and extend dignity to the victims of the struggle – the amnesty process likely imposed about as much accountability as was possible. Moreover, the amnesty process often challenged amnesty applicants about the morality of their past acts. In doing so, “[the amnesty process] does not make these persons criminally responsible, but it makes their moral and political responsibility sting” (p.344).

In the end, her most interesting conclusions speak to the larger issues of the message the amnesty process sent to South African society on the issues of accountability and redemption. She argues that the amnesty process (coupled with the truth and reconciliation process) clearly condemned gross human rights violations, imposed at least some costs on most of those coming forward seeking amnesty, and, most generally, taught the larger society a lesson of redemption, forgiveness, and reconciliation. She asserts: “This mechanism meets the expectations and requirements of international law, in that it avoids impunity and helps to build a human rights culture and democratic commitment to the rule of law” (p.338). Many will object to these conclusions, but Du Bois-Pedain justifies them on the basis of pragmatism, and the superiority of amnesty to the alternatives – doing nothing to the perpetrators or attempting to prosecute them through the criminal justice system. In the end, irrespective of whether one agrees or disagrees with her conclusions, her position is soundly argued and grounded in a careful examination of both qualitative and quantitative evidence on the performance of the amnesty process. Little more can be expected of a treatise such as this.

Many attributes of this research are admirable. One tends to find in the human rights literature a moralizing, sermonizing tone to much of the discussion about topics like amnesty, with not a great deal of attention to the practical necessity of avoiding civil war and promoting the democratic transition. Du Bois-Pedain provides a nice mixture of overriding normative concerns, careful empirical analysis, and thoughtful examination of the pragmatic exigencies of a transition such as South Africa’s. Moreover, although much of the book reflects Du Bois-Pedain’s training and skills as a legal academic, she is a good social scientist as well, as in her intuitive observation that law is endogenous in processes such as these. This analytic blend of the-law-in-the-books, the-law-in-action, and the gritty reality of political transitions should be quite attractive to the readers of the LAW AND POLITICS BOOK REVIEW.

As much as I admire this work, I feel obliged to raise certain shortcomings of Du Bois-Pedain’s analysis. First, foremost, and quite common about analyses of the South African truth and reconciliation process, the book is heavily focused upon victims and perpetrators. This may seem an odd criticism inasmuch as the amnesty process directly involves investigating and judging perpetrators for their actions against victims. But that process was [*585] also about the transformation of South Africa, about its transition from a cruel and illegitimate system of white domination to a vibrant, multi-racial democracy. As such, the process far transcended the needs of and consequences for victims and perpetrators. Indeed, to the extent that the truth and reconciliation process actually sought societal-level reconciliation, perhaps it is the assessments of the amnesty process by bystanders (the vast majority of South African society) that are most crucial for the future of the democratic experiment in that country. One can imagine, for instance, that the needs of the victims are not paramount in an amnesty process (as they typically are not in the criminal justice system) and that the most important goal of the amnesty process is to ensure that victims and perpetrators do not become spoilers of the transition, and that ordinary people view the process as to at least some degree just. To be fair, Du Bois-Pedain does address this issue to at least some degree since she often mentions the larger social and political contexts in which the amnesty process was embedded; and, to be honest and forthright, the subject of my book – OVERCOMING APARTHEID: CAN TRUTH RECONCILE A DIVIDED NATION? – is precisely the question of how the process contributed to South Africa’s transition, so my substantive interests are located more at the societal level than at the level of victims and perpetrators. Nevertheless, more attention to the consequences of the amnesty process for building democratic institutions and processes in South Africa would have improved and broadened the analysis.

I should also note that Du Bois-Pedain seems to have a too limited understanding of justice, as least for my taste. While she compares and contrasts retributive and restorative justice paradigms in her chapter on accountability in the amnesty process, many other forms of justice are implicated in amnesty processes – distributive, retributive, restorative, and procedural, for instance – and it is often the case that one form of justice can compensate for failure to receive another form. Procedural justice is an important concern within South African politics. Whether the amnesty process was judged to be fair depends not just on retributive concerns (for which an obvious justice deficit is produced by granting amnesty), but also on whether procedures were thought fair, whether victims received some form of compensation, and whether the process was attentive to restoring the dignity of both the victim and the society victimized by apartheid.

These reservations aside, this book is a “must” for anyone who seeks to understand the transitional justice process in South Africa. Stripped of ideology, with over-arching normative questions addressed but lurking primarily in the background, this descriptive and analytical research will long stand as the definitive statement of how the South African amnesty process operated and unfolded during this crucial period of South African history. I heartily recommend the book to those concerned with processes of transitional justice and democratization, in South Africa, and throughout the world. [*586]

REFERENCES:

Gibson, James L. 2004. OVERCOMING APARTHEID: CAN TRUTH RECONCILE A DIVIDED NATION? New York: Russell Sage Foundation.

Gibson, James L. 2005. “The Truth About Truth and Reconciliation in South Africa.” INTERNATIONAL POLITICAL SCIENCE REVIEW 26 (#4, October): 341-361.

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