Law, memory and the legacy of apartheid: Ten years after AZAPO v President of South Africa

Azapo V President Of South Africa

Description

Many constitutional commentators have pointed to the central role that an engagement with the apartheid past plays in the two post-apartheid Constitutions. The AZAPO judgment in which the constitutionality of the amnesty provisions of The Promotion of National Unity and Reconciliation Act 34 of 1995 was challenged is central to a sustained engagement with post-apartheid law and the legacy of the past. A seminar took place on 18 August 2006 at the University of South Africa to provide a retrospective on the AZAPO judgment, ten years after it was handed down. A number of the essays in this collection were originally presented as papers at the seminar.Part 1 ('Memory and legal interpretation') focuses explicitly on the ability of law to institute and sustain a different politics of memory: How is law related to the process of memory making? How does law remember (if at all)? How does law's memory relate to the wider process of aesthetic memorialisation in society? In Part 2 ('Repairing the past, restoring the future') the focus of the essays shifts from jurisprudential reflections on the politics of memory to more direct engagements with issues of reparation and restoration in the wake of past injustices: How is law related to the process of reparation? How does law's justice relate to the wider process of restoration in society?The inability to achieve constitutional closure, which is so dramatically illustrated by the AZAPO judgment, equally applies also to all other post-apartheid constitutional judgments. Re-reading AZAPO therefore becomes constantly re-reading and marking the limits of all law.About the editor:Wessel le Roux is Professor in Public Law at the University of the Western Cape.Karin van Marle is Professor at the Department of Legal History, Comparitive Law and Jurisprudence, at the Faculty of Law, University of Pretoria.

Sujets

• Economie
• développement
• Politics
• Relations internationales
• Développement
• Géopolitique

Informations

• Publié par: PULP (Pretoria University Law Press)
• Date de parution: 01 janvier 2007
• Nombre de lectures: 0
• EAN13: 9780980265835
• Langue: English
• Poids de l'ouvrage: 1 Mo

Extrait

Law, memory and the legacy of apartheid: Ten years after AZAPO v President of South Africa

Wessel le Roux and Karin van Marle (Editors)

2007

Law, memory and the legacy of apartheid: Ten years afterAZAPO v President of South Africa

Published by: The Pretoria University Law Press (PULP) is based at the Faculty of Law, University of Pretoria, South Africa. PULP endeavours to publish and make available innovative, high-quality scholarly texts on law in Africa. PULP also publishes a series of collections of legal documents related to public law in Africa, as well as text books from African countries other than South Africa.

For more information on PULP, see: www.chr.up.ac.za/pulp

This book was peer-reviewed prior to publication.

To order, contact: PULP Faculty of Law University of Pretoria South Africa 0002 Tel: [phone] Fax: [phone] [e-mail] www.chr.up.ac.za/pulp

Printed and bound by: ABC Press Cape Town

Cover illustration: ‘Day & Night’, by Vusi Khumalo, used with the permission of the artist.

Copyright permission: © 2007 Copyright subsists in this work. It may be reproduced only with permission of the author.

ISBN:978-0-9802658-3-5

Acknowledgments

Table of contents

The unmentioned names that remain (an introduction) by Wessel le Roux and Karin van Marle

PART 1: MEMORY AND LEGAL INTERPRETATION

1

2 3 4 5

Thoughts on dealing with the legacies of radically unjust political behaviour by Johan Snyman

Law’s time, particularity and slowness by Karin van Marle

Transforming memory transforming by Michael Bishop

AZAPO: monument, memorial ... or mistake? by Lourens du Plessis

War memorials, the architecture of the Constitutional Court building and counter- monumental constitutionalism by Wessel le Roux

PART 2: REPAIRING THE PAST, RESTORING THE FUTURE

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7 8

9

Reading and writing archives: The TRC, big business and reparations in post-apartheid South Africa by Jaco Barnard

Good victim, bad victim: Apartheid’s beneficiaries, victims and the struggle for social justice by Tshepo Madlingozi

Ten years of democracy in South Africa: Revisiting theAZAPOdecision by Nthabiseng Mogale

In defence ofAZAPOand restorative justice by Patrick Lenta

Contributors

Bibliography

Index

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11

33

51

65

93

107

127

149

183

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Acknowledgments

We wish to express our special thanks to the following people who have supported us in this project:

Ulricke Kistner from UNISA, for her valuable assistance early on with the organisation of theAZAPOretrospective on 18 August 2006.

Irene de Vos and Polina Dlagnakova, research assistants at the University of Pretoria and the University of South Africa, for their assistance with the editing and formatting of the papers.

Vusi Khumalo, for permission to use his artwork on the cover design.

The editors of theSouth African Journal of Human Rights, for permission to republish an earlier version of chapter 2 by Karin van Marle, which originally appeared in the journal under the title ‘Law's time, particularity and slowness’ (2003) 19SAJHR239.

The editors ofSA Publiekreg/Public law, for permission to republish an earlier version of chapter 9 by Patrick Lenta, which originally appeared in the journal under the title ‘AZAPO, the TRC and restorative justice: a retrospect’ (2005) 20SAPR/PL335.

Wessel le RouxandKarin van Marle(eds)

iv

The unmentioned names that remain (an introduction)

1

History

Wessel le Roux and Karin van Marle

The Promotion of National Unity and Reconciliation Act 34 of 1995 came into operation on 1 December 1995. The Act set up the Truth and Reconciliation Commission (TRC) to investigate the nature and causes of apartheid, to make recommendations to government about reparations to the victims of apartheid, and to grant amnesty to 1 perpetrators of gross human rights violations. Initially it was the Committee on Amnesty entrusted with the last-mentioned task that attracted most of the critical attention. The Committee was given the power to grant amnesty to persons who, with a political motive, had killed, abducted, tortured or severely ill-treated another person 2 during the conflict of the past (1 March 1960 to 10 May 1994). Perpetrators of such gross human rights abuses had to apply for amnesty individually, but qualified for amnesty as soon as they made a full disclosure of all relevant facts pertaining to the violation in 3 question. Once granted, the amnesty extinguished all criminal and civil liability of the perpetrators. It also extinguished all forms of 4 vicarious liability, including that of the state. This left the victims of these abuses effectively without any legal redress.

The constitutionality of the amnesty provisions was challenged in the Cape High Court on 6 May 1996 by the Azanian People's Organisation; Nontsikelelo Margaret Biko, widow of murdered anti- apartheid activist Steve Bantu Biko; Churchill Mheli Mxenge, brother of murdered activist Griffiths Mlungisi Mxenge, and Chris Ribeiro, 5 eldest son of murdered activist Fabian Ribeiro. It was argued, alternatively, that the very fact of amnesty, or its wide scope, constituted an unjustifiable violation of the constitutional right to have justiciable disputes settled by a court of law. The Court rejected the challenge. Shortly thereafter the matter served before the Constitutional Court. On 25 July 1995, the Court held unanimously, but in two separate judgments, that the amnesty provisions in the Act

1 2 3 4 5

Long title of the Act; see also sec 3. Sec 1. Sec 20. Sec 20(7)(a). AZAPO v TRC1996 4 SA 562 (C).

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6 were constitutional. The Court reasoned that the interim Constitution itself provided for amnesty and, in any case, that the violation of the right to have access to justice was justified by the unique demands and nature of the transition in South Africa. The drafters of the Constitution (and the members of Parliament) decided that it was necessary to establish the truth about the past in order to enable reconciliation and to prevent the repetition of past injustices. This decision was not merely a political compromise, but constituted part of the foundational values and spirit of the new constitutional 7 order as a whole. Given this background, the only way of establishing the truth of past abuses was to grant amnesty to those responsible for 8 those abuses. The vicarious liability of the state should be extinguished, the Court held, not as a means of establishing the truth of past abuses, but as a means of allowing government the freedom and scope to develop a more comprehensive and inclusive reparation 9 policy.

TheAZAPOjudgment cleared the way for the Amnesty Committee of the TRC to start its work. Eventually the Amnesty Committee received more than 7 000 applications, of which just more than 1 300 were successful. More than 350 applicants were refused amnesty after public hearings had taken place. At the conclusion of its work, the Amnesty Commission forwarded more than 8 000 cases to the National Director of Prosecutions for further investigation and possible prosecution. The first high profile prosecution for apartheid crimes only began in August 2007 with the conviction and sentence of ex- minister Adrian Vlok.

While amnesty applications were considered the Committee on Reparation and Rehabilitation also undertook and concluded its work. The Committee made extensive recommendations to government about reparations to the victims of gross human rights abuses. Very few of these recommendations were accepted and implemented by government. The unfinished business of the TRC has, as a result, become a controversial talking and rallying point. At the same time, the spectre of criminal prosecutions and the attempt to claim reparation from multinational companies in American civil courts have highlighted the role of the courts in resolving the unfinished business of the TRC.

There is extensive and growing literature on the role of law and legal institutions in dealing with the legacy of the past in post-conflict

6 7 8 9

AZAPO v President of the Republic of South Africa1996 4 SA 671 (CC). Para 21. Para 17. Paras 42-46.

Introduction vii

10 societies. However, there are very few, if any, significant South African contributions to this literature. This is somewhat surprising as many constitutional commentators have pointed to the central role that an engagement with the apartheid past plays in the two post- apartheid constitutions. Eduard Fagan, for one, speaks in this regard 11 of the ‘constitutional entrenchment of memory’. Karl Klare, likewise, speaks about the ‘historical self-consciousness’ of the 12 Constitution as a transformative document. Given the effect of the AZAPOjudgment, the lack of a sustained engagement with the role of law in post-conflict South Africa is nevertheless understandable. Any attempt to think about the relationship between post-apartheid law and the legacy of the past will first have to deal with the jurisprudence and legacy of theAZAPOjudgment.

To this end a seminar took place on 18 August 2006 at the University of South Africa. The seminar sought to provide a retrospective on theAZAPOten years after it had been judgment handed down. A number of the essays in this collection were originally presented as papers at the seminar. However, from the discussions during the day, it became apparent that the debate about the relationship between law and memory in post-apartheid South Africa needed to be extended beyond the confines of the event. That realisation was the birth of this collection of essays. While still focused on theAZAPOjudgment, the collection now also includes a number of essays which did not form part of the seminar, but which have played an important role in what little debate there has been around the question in South Africa.

2

Structure(s)

The essays in this volume all address a number of overlapping issues and could therefore have been structured for and presented to the metaphorical ideal reader in a number of different ways. The structure eventually adopted represents only one (slightly less than)

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See, for example, M Gabriel ‘Coming to terms with the East German border guards cases’ (1999) 38Columbia Journal of Transnational Law375; M Osiel ‘Ever again: legal remembrance of administrative massacre’ (1995) 144University of Pennsylvania Law Review463; M OsielMass atrocity, collective memory and the law(1997); L DouglasThe memory of judgement: making law and history in the trials of the HolocaustL Adler & P Zumbansen ‘The forgetfulness of (2001); noblesse: A critique of the German foundation law compensating slave forced laborers of the Third Reich’ (2002) 39Harvard Journal on LegislationE Stein 1; ‘History against free speech: The new German law against the “Auschwitz” — and other — “lies”’ (1986) 85Michigan Law Review277; L Mcnamara ‘History, memory and judgement: Holocaust denial, the history wars and law’s problems with the past’ (2004) 26Sydney Law Review353 391. E Fagan ‘The constitutional entrenchment of memory’ in S Nuttall & C Coetzee Negotiating the past: The making of memory in South Africa(1998) 249. K Klare ‘Legal culture and transformative constitutionalism’ (1998) 14South African Journal of Human Rights146.

viiiWessel le Roux & Karin van Marle

arbitrary example of this. We hope that the essays nevertheless remain organised loosely enough to allow different orders or disorders to establish themselves around the ideas and concerns of each new reader.

The collection is divided into two parts, each with a distinctive focus. The first part, ‘Memory and legal interpretation’, focuses explicitly on the ability of law to institute and sustain different politics of memory. The concerns here can be traced back to the archiving of history which served inAZAPOthe most important as justification for amnesty. How is law related to the process of memory making? How does law remember, if at all? How does law’s memory relate to the wider process of aesthetic memorialisation in society? These essays all in some way or another employ and develop the metaphoric distinction between monumental and memorial politics of memory. This distinction was initially introduced into South African 13 constitutional law by Johan Snyman. It has subsequently become a key feature of what Karin van Marle, following the work of Snyman 14 and du Plessis, aptly names ‘memorial constitutionalism’. A brief overview of Snyman’s original contribution and its subsequent reception is provided by Wessel le Roux in chapter 5 of this collection. However, the collection opens with another essay by Snyman in which the relationship between constitutional law and the legacy of radically unjust political behaviour is thematised afresh.

Snyman argues that the search for the truth of the past is not a search for the true facts about the past, but the search for the appropriate norms of political responsibility. The engagement with the past is an ethical engagement with obligation and responsibility. For this reason it cannot and dare not ever be concluded. From this perspective,AZAPOnot a decision which was taken within a was secure and well-grounded constitutional framework, but a decision about the grounding and security of the constitutional framework and law as such. It raises the question whether it is ever possible to secure the ground of constitutional norms in the wake of a radically unjust past. Snyman answers the question in the negative. According to him, our engagement with the past can never be concluded, because the constitutional norms for political responsibility can never be stated in clear enough terms.

Snyman’s radical anti-foundationalism sets the agenda for the remaining essays in PART 1. Each essay explores how and to what extent the memory of suffering and past injustice precludes the Constitution from establishing itself as the ‘secure foundation’ of which the post-amble of the interim Constitution speaks, in the same

13 14

J Snyman ‘Interpretation and the politics of memory’ (1997)Acta Juridica312. K van Marle ‘Lives of action, thinking and revolt – a feminist call for politics and becoming in post-apartheid South Africa’ (2004) 19SA Publiekreg/Public law605.

Introduction ix

breath as it introduces the post-apartheid search for truth. What is it that constantly returns to mark the limits of the law, and to disrupt the closure or normative integrity of the constitutional framework? Each writer ventures her or his own understanding of why the liberal ideal of constitutionalism itself became implicated in theAZAPO judgment as law began to confront the legacy of apartheid.

Karin van Marle argues in chapter 2 that memory requires slowness and attentiveness to particularity. Law, on the other hand, is inescapably marked by a quest for speed through generalisations and universally applicable and formalisable injunctions. For this reason alone, law is fundamentally incapable of remembering and engaging with suffering. Van Marle also adopts a slightly more critical stance towards the TRC than Snyman. She suggests that the same fate befell both the amnesty and human rights hearings of the Commission, largely because of the influence of a legal mindset on the workings of the TRC. Van Marle holds little hope for the institutionalisation (and inevitable legalisation) of memory in society. Even a first reading of theAZAPOjudgment seems to underscore her reservations. In spite of the nature of its concerns, the judgment deals exclusively with the general provisions of the Constitution and the Act. It is most comfortable with big, structural issues of transformation on a national scale. The names and particularities of those who had died, or those of their widows, brothers and sons, who now stood in court, are not mentioned once. In the official published record of the case they remain simply but tellingly designated as the ‘others’. They are the other applicants. But is it too much also to state, as van Marle implies, that our memory of them and their suffering will for ever remain other to this law and this legal record?

Given the inherent limitations of law (and the TRC) as institutions of collective memory, van Marle turns her attention to art. By concentrating on the aesthetic techniques which underlie William Kentridge's public and artistic engagement with the atrocities of apartheid and Africa's colonial past, van Marle highlights the limits of the law and underscores her claim that law is ultimately incapable of responding to Adorno's injunction to lend a voice to suffering.

In chapter 3 Michael Bishop adopts a slightly different strategy. Bishop does not concentrate, like van Marle, on the limits of law as a mode of memory, but rather investigates the positive and transformative role that memory can play in legal interpretation. Bishop argues that memory was employed inAZAPO in order to institute a linear conception of transition and transformation in South Africa. Memory operated in that context as a restricting rhetorical device aimed at shoring up a particular understanding of the Constitution and its normative demands. This rhetorical trope has been repeated in a series of subsequent cases. Bishop argues that the use of memory as a strategy of closure cuts across the question

xWessel le Roux & Karin van Marle

whether the memories in question are celebratory (good; monumental) or commemorative (bad; memorial). This is not to say that he wishes to rid law of the duty to remember. In fact, he describes memory as a necessary, if insufficient, condition of transformative constitutionalism. Bishop relies on case law to illustrate how the memory of apartheid plays a vital role in legal interpretation. His point, however, is that memory should be used not to close meanings, but to create spaces and tensions within law. According to Bishop, the nature of collective or public memory itself points in this direction.

Lourens du Plessis employs a basic typology of constitutional strategies of memory in order to make sense of the differences and 15 shifts between the judgments inS v Makwanyane, in which a nearly identical bench of the Constitutional Court relied on international law to declare the death penalty unconstitutional, andAZAPO, in which the Court devised a number of interpretive strategies to limit the influence of international law on the argument about post-apartheid amnesty. The Court's engagement with international law is also taken up in a number of the later chapters in Part 2 of the collection. Du Plessis, however, argues that a constitution as a mode of memory can be both a monument (a celebration) and a memorial (a commemoration orMahnmal) at the same time. Constitutional judgments can appeal to the Constitution either as monument or memorial.Makwanyanea monumental judgment and a was celebration of the new constitutional order.AZAPO, by contrast, is haunted by the dark side of the past and serves as a reminder of how messy our past was. As such it marks the limits of jurisprudence and the inability of universal human rights norms to deal with and properly respond to that mess. While not denying the importance of a celebratory constitutional jurisprudence, du Plessis regards judg- ments likeAZAPOas salient and important reminders of suffering and as important moments of memorial resistance to the monu- mentalisation and closure of constitutional law.

In the final chapter of PART 1, Wessel le Roux explores the jurisprudential implications of the fact that the new South African Constitutional Court building has been designed as a memorial to the struggle and the imprisoned victims of apartheid in particular. He highlights the memorial dimensions of the design and then explores how South African legal writers have responded to the architectural vision of constitutional interpretation as essentially a memorial, as opposed to a monumental, activity.

In PART 2, ‘Repairing the past, restoring the future’, the focus of the essays shifts from jurisprudential reflections on the politics of memory to more direct engagements with issues of reparation and

15

S v Makwanyane1995 3 SA 391 (CC), 1995 6 BCLR 665 (CC).

Introduction xi

restoration in the wake of past injustices. The concerns here can be traced back to the anticipated reparation policy which served in AZAPOas the second important justification for a total amnesty. How is law related to the process of reparation? How does law’s justice relate to the wider process of restoration in society?

Jaco Barnard’s essay in chapter 6 provides the transition between the politics of memory in PART 1 and the politics of reparation in PART 2. On the one hand he continues to explore some of the themes already mentioned above. He relies explicitly, for example, on van Marle's understanding of the institutional closure and violence of law in order to criticise the legalisation of the TRC process. He also relies on a deconstructive understanding of the nature of written texts, archives and writing in order to resist the closure or what he explicitly calls the monumentalisation of the official TRC history and report. Like Snyman he rejects the idea that the writing of history is a factual affair and calls for an ethical re-reading of the TRC report and the AZAPO judgment in which the silences of the texts are constantly revisited, precisely because they are paradoxically constantly reproduced by the act of rewriting or re-reading.

What sets Barnard’s discussion apart is the detailed attention he pays to the TRC report on the role of big business during apartheid. He criticises the official TRC history because it is silent about crucial aspects of this role. Because of these silences the report fails to provide the necessary background for an effective reparation policy in which big business should have played a central role.

In chapter 7 Tshepo Madlingozi continues to interrogate the role of big business during and after apartheid. His main concern is why an effective reparation policy failed to emerge after the TRC. Madlingozi explores the tension between political reconciliation and social reconciliation. In order to overcome the limits of the transitional justice paradigm, in which the focus still falls on criminal or retributive, as opposed to social and redistributive, justice, he develops an extended understanding of victimhood so as to enlarge the closed list of names put forward by the TRC. In this regard he also criticises the legalisation of the TRC process, something which makes the TRC process an unsound basis for the determination of apartheid's victims. Madlingozi also criticises the narrow focus of the transitional justice paradigm on the individual liability of perpetrators at the cost of the systematic, structural socio-economic advantages secured by beneficiaries. In other words, Madlingozi criticises theAZAPO judgment and the TRC process for still being caught in the transitional justice paradigm and its narrow conceptions of victims and perpetrators. As an alternative to this paradigm, he proposes a politics of redistribution as it has been formulated by soci al movements like the Khulumani Support Group.