UNITED NATIONS INTERNATIONAL MEETING
ON THE QUESTION OF PALESTINE
The question of Palestinian political prisoners in Israeli prisons and detention facilities:
legal and political implications
Geneva, 3 and 4 April 2012
_________________________________________________________________________________
CHECK AGAINST DELIVERY
PLENARY III
The issue of Palestinian political prisoners
and the Israeli-Palestinian political process
Paper presented by
Mr. Hanif Vally
Human rights lawyer
Deputy Director, Foundation for Human Rights
Johannesburg
CPR/IMQP/2012/18
GE.
2
Political Prisoners in Peace Processes & Peace Agreements,
the example of Namibia & South Africa
Introduction
I thank the organizers for inviting me to speak at this meeting.
My topic today is “Political Prisoners in Peace Processes & Peace Agreements, the example
of Namibia & South Africa”.
In order to put the events in a chronological context, we should recall that Nelson Mandela was
released on the 11 February 1990 after 27 years in prison. However, it was only 4 years later in 1994 that
South Africa had its first democratic election and he was elected President i.e. eighteen years ago.
Namibia, which was unlawfully occupied by apartheid South Africa as the colonial power,
attained its independence on the 21st March 1990.
From the mid-eighties, the apartheid government had announced it was prepared to release
political prisoners who renounced violence. It had also begun informal contacts with members of the
liberation movements, both in prison and in exile.
By way of introduction, we can draw lessons from these early exchanges. Apartheid President
P.W. Botha of the ruling National Party (NP) said in 1985 that he was prepared to release Nelson
Mandela if he “unconditionally rejected violence as a political instrument”. i (This was not the first time
such an offer was made, usually coupled with the prerequisite that he confine himself to Bantustan
politics or agreed to a cooling off period outside the country.ii) This was of course posturing by P.W.
Botha and also to provide ammunition to his supporters in the international community.
Mr Mandela’s responses were instructive: Firstly, his daughter read out his public response at a
mass rally in Soweto. He stated:
“I cannot sell my birthright, nor am I prepared to sell the birthright of the people to be free. ….
Only free men can negotiate. Prisoners cannot enter into contracts. I cannot and will not give an
undertaking at a time when you and I, the people, are not free.”
Clearly he was re-iterating the African National Congress (ANC) position that the unconditional
release of all political prisoners was central to negotiations. However, he went further: he also sent a
letter to the then Foreign Minister rejecting the conditions for his release. He did this because, in his own
words:
“I wanted to do a number of things in this response, because Botha’s offer was an attempt to drive
a wedge between me and my colleagues, by tempting me to accept a policy the African National
Congress (ANC) rejected. I wanted to reassure the ANC in general, … that my loyalty to the
organization was beyond question. I also wished to send a message to the government that while
3
I rejected its offer because of the conditions attached to it, I nevertheless thought negotiation, not
war, was the path to a solution. (Mandela, 1995: 509).”iii
It is argued that the issue of calling for a renunciation of violence as a prerequisite for
negotiations is common to repressive governments faced by an armed uprising. Mr Mandela’s response
was “the renunciation of violence should not be a precondition to, but a result of negotiating”. He went
on to say “white South Africa must accept the plain fact that the ANC will not suspend, to say nothing
about abandoning the armed struggle until the government shows willingness to surrender the monopoly
of political power and to negotiate directly and in good faith with the acknowledged black leaders.”iv
In these statements, one can immediately see the highly charged political nature of the release of
political prisoners and its role during negotiations, as well as the various constituencies the negotiating
parties are aiming their responses at, besides to each other.
Thus we can see some of the concerns by the opposing parties:
•
•
•
•
•
•
They do not want to appear weak to their own constituencies by being willing to negotiate;
At the same time, they want to make clear to the international community that they are willing to
negotiate. It is the other party that is being difficult;
They need to carry their own political parties with them;
Any negotiations which do not address the issue of the release of political prisoners from the very
outset will create difficulties for leaders whose members are imprisoned with their own parties
and will undermine the negotiations;
The State party holding political prisoners will use them as a bargaining chip during negotiations;
There is an attempt to gain as much concessions as possible before negotiations begin;
Let us look at the similarities and differences between the two transition processes in Namibia &
South Africa.
Namibia
Germany colonized Namibia in 1883, with the exception of the Walvis Bay enclave which was
colonized by the British in 1878. South Africa occupied Namibia in 1915 during World War 1. It was
given a League of Nations mandate to administer Namibia in 1920 and to inter alia promote the moral
well-being of its people.v Instead, South Africa imposed its own brand of racial segregation, repression
and dispossession, also known as apartheid, over seventy years. When the League of Nations was
dissolved in 1946, South Africa refused to recognize the trusteeship of the newly formed United Nations.
In 1966, the UN General Assembly revoked South Africa’s mandate. In this same year SWAPO launched
its armed struggle. In 1971, the ICJ ruled that the South African presence in Namibia was illegal and
South Africa was obligated to withdraw its administration immediately.
Thus, the essential difference between Namibia and South Africa was that in Namibia it was the
transition from a de facto colonial state to an independent one.
South Africa was internationally recognized as an independent sovereign state, notwithstanding
questions about the legitimacy of its government which was based on notions of white supremacy, the
disenfranchisement of the indigenous population and the dispossession of eighty seven percent of the land
by the white settler minority who constituted approximately eight percent of the population.
4
A number of UN resolutions were passed calling the withdrawal of the South African
administration from Namibia. These resolutions also called for the release of all political prisoners.vi
Resolution 385 passed in 1976 stated: “Demands again that South Africa release all Namibian political
prisoners, including all those imprisoned or detained in connection with offences under so-called internal
security laws, whether such Namibians have been charged or tried or are held without charge and
whether held in Namibia or South Africa.”
We were taught in school that Namibia was the fifth province of South Africa. This was also the
vaguely named “border area” where repressive measures and legislation was first used before being
introduced in South Africa, such as indefinite detention without trial and access to anyone besides state
officials. You could be legally ‘disappeared’.
In April 1978, the UN adopted Security Council Resolution 435 after negotiations and agreement
with all parties including SWAPO and South Africa. Resolution 435 provided for a three phase
transition: The first stage was to create conditions conducive to holding free and fair elections including
the release of all political prisoners, return of exiles and refugees, withdrawal of the bulk of the South
African military and repealing discriminatory legislation. The second stage was the holding of elections
for a Constituent Assembly and the third stage was the approval by this Constituent Assembly of a new
Constitution.vii The whole process was to be monitored by a UN Transitional Group (UNTAG) whilst
Namibia would continue to be administered by South African appointed Administrator – General (AG).
Nevertheless, South Africa went ahead and held elections in December 1978 in defiance of the
UN, which elections were boycotted by SWAPO and some other parties.
In 1982, further provisions relating to the Constitutional principles and requiring inter alia a two
– thirds majority for any amendment to the Constitution were adopted.
It took another 10 years for Resolution 435 to be implemented. This was inter alia connected to
cold war considerations because South Africa and the USA linked its implementation to the withdrawal of
Cuban troops from Angola. The final agreements leading to the implementation of Resolution 435
excluded SWAPO altogether at the insistence of South Africa and involved South Africa, Cuba and
Angola with the United States as the mediator.viii
After an initial serious outbreak of violence in which over 375 SWAPO fighters were killed on
the 1 April 1989, the rest of the transition was relatively smooth leading to elections, the adoption of a
new constitution and independence on the 21st March 1990.
st
The issue of the release of political prisoners was assigned to Professor Norgaard, a Norwegian
jurist. He used principles which became known as the Norgaard principles and included issues such as the
context of the offence – was it part of a political uprising; the issue of proportionality - whether the act
committed related to the political objective aimed at; the legal and actual nature of the offence - for
example rape could never be a political offence; and whether the offence was committed on the orders or
with the approval of the organization concerned.
South Africa
Perceptions of South Africa’s transition from apartheid to democracy achieved through
negotiations being largely peaceful are not altogether true. It is estimated that from the start of
negotiations in the mid 1990s to elections in April 1994, 14 000 persons died and 22 000 were injured.ix
5
Let me also respectfully say that whilst this Meeting is focused on ‘political prisoners’,
accountability of members of the established state for gross violations of human rights should always be
part of the equation.
In apartheid South Africa, the State and judicial system was vicious in its sentencing of political
prisoners. (It is estimated that apartheid South Africa was responsible for seventy percent of all State
executions for both common law and political ‘crimes’ in the western world at the time). If you were
sentenced to life imprisonment for a political crime, there was no possibility of parole or remission of
sentence. A life sentence literally meant a life sentence. You died in prison.
The initial release of political prisoners took place in fits and starts. In October 1989, ostensibly
on grounds of age and health, seven long standing prisoners were released from prison shortly after
F.W.De Klerk became President.x After the unbanning of liberation movements in February 1990 and the
release of Nelson Mandela, another group of fifty prisoners were released. This delay resulted in a
hunger strike by over 300 political prisoners incarcerated on Robben Island who demanded the immediate
and unconditional release of all political prisoners.
The apartheid government claimed that they did not keep a list of political prisoners as persons
were imprisoned as a result of having committed criminal offences. Persons who were imprisoned for
treason or membership of a banned organization could be regarded as political prisoners. Others were
criminals.
To facilitate negotiations and allow meetings to take place, provision had to be made for
temporary immunity for leaders of the ANC leaders to allow them to enter the country without fear of
arrest. An important obstacle to peaceful negotiations from the outset was the call for the unconditional
release of all political prisoners. The initial meeting in May 1990 was recorded in what is referred to as
the Groote Schuur Minute. It set up a Working Group to look into the release of political prisoners and
deal with the definition of a political prisoner.
Prisoner releases were also used as bargaining chips and public relations exercises. For example,
prior to a State visit to Europe in June 1990, F.W.De Klerk released 48 prisoners “as a gesture of
sincerity”xi.
The next meeting took place in August 1990 and is recorded as the Pretoria Minute.(Attached
hereto as Annexure 1). The Working Group’s definition was adopted. It stated (in paragraph 6.5.2):
“6.5.2 The law and practice of states show that there is now a considerable degree of consensus
both as to the types of offenses which may in principle be classified as political as well as to the sort of
factors which should be taken into account in deciding whether an offence is ‘political ‘ or not. In
particular, the following are aspects of the law and practice of extradition which appear to provide
valuable guidance.:
(a) Whether or not an offence is political depends on the facts and circumstances of each individual
case. The question is thus approached on a case by case basis.
(b) Certain offences are reagarded as ‘purely’ political. E.g. treason directed solely against the State
and not involving a common or ‘ordinary’ crime such as murder or assault or the dissemination of
subversive literature;
(c) In certain circumstances a ‘common’ crime, even a serious one such as murder may be regarded
as a political offence. Here the following are the principle factors which are commonly taken into
account by national courts:
6
i)
ii)
iii)
iv)
v)
vi)
vii)
The motive of the offender – i.e. was it a political motive (e.g. to change
the established order) or a personal motive (e.g. to settle a personal
grudge.)
The context in which the offence was committed, especially whether the
offence was committed in the course of or as part of a political uprising
or disturbance.
The nature of the political objective. (E.g. whether to force a change in
policy or to overthrow the Government.)
The legal and factual nature of the offence , including its gravity. (E.g.
rape could never be regarded as a political offence.)
The object of the offence. (E.g. whether it was committed against
Government property or personnel or directed primarily against private
property or individuals.)
The relationship between the offence and the political offence being
pursued. E.g. the directness or the proximity of the relationship or the
proportionality between the objective and the objective pursued.
The question whether the act was committed in the execution of an order
or with the approval of the organization, institution or body concerned.”
The legal instrument used to grant indemnity to allow for negotiation was the Indemnity Act of
1990.
By 1991, the apartheid state claimed there were only 200 political prisoners left in prison whilst
the ANC claimed there were at least 5000.xii The opposing parties throughout the negotiation process did
not agree on the number of political prisoners.
More controversially, the Further Indemnity Act was passed 1992 which purported to allow
F.W.De Klerk to indemnify members of the security forces from prosecution. Just prior to the elections
in 1994, De Klerk purported to grant 4000 security personnel indemnity. Upon elections taking place at
the very first cabinet meeting, this purported indemnity was set aside.
A deadlock had been reached. Violence was escalating. An urgent solution was required to
break the impasse of the release of political prisoners and the indemnification of State security forces
responsible for gross violations of human rights.
Amnesty in South Africaxiii
One finds that the form that an amnesty process takes in any country is usually linked to the
relevant strengths or the balance of forces in a country. If one side has completely overwhelmed the other,
one finds that you will have the equivalent of treason trials or a local variant of the Nuremburg Tribunal.
If the parties are deadlocked in a civil war situation or one of the parties poses a substantial threat to the
other, there is usually provision for amnesty. We are then faced with the conundrum of peace vs justice. It
has been argued however that the choice is not always as stark as this: One can still have a form of justice
with peace. There is no need for justice to be thrown aboard.
So what was the context in South Africa leading up to our amnesty process? You had these
enormous expectations having built up with the release of Nelson Mandela. Negotiations on a new
political dispensation had been dragging on for over three years. The far right wing had stormed the venue
at which the negotiations were taking place. In addition to the existing death squads in the police, a
further 300 were trained and unleashed on political opponents by the State; The supporters of the
liberation movement had embarked on ongoing protest action against the then government blaming it for
7
the dragging out of negotiations. The apartheid government still had control of the armed forces and the
economy . Unknown elements, with allegations of state collusion, were carrying out massacres on trains
and at taxi ranks. The leader of the Communist Party was assassinated by members of a far right wing
group. In summary, the country was on a knife edge.
The two major parties, the African National Congress (ANC) and the apartheid government were
deadlocked on the issue of amnesty. The ANC wanted people tried for gross violations of human rights.
The Apartheid government wanted blanket amnesty and even purported to give the security forces such
an amnesty.
A compromise was reached on a conditional amnesty. The compromise was set out in broad
terms in what came to be referred to as the ‘Epilogue’ located right at the end of the interim constitution
which inter alia readxiv:
“In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect
of acts, omissions and offences associated with political objectives and committed in the course
of the conflicts of the past.”
This was part of the three legged Pivotal Compromises that made the negotiated settlement
possible in SA. These were:
The amnesty provision in the interim Constitution.
The two stage Constitutional drafting process.
The Government of National Unity. All parties which received at least 10% of the vote were allocated a
cabinet seat.
After the first democratic elections, it took the legislature almost a year of debating the Act
establishing the TRC before it was promulgated. The role of civil society was crucial during this process:
Both of the major political parties wanted all hearings of the TRC to be held behind close doors. It was
only after intensive lobbying by civil society organizations that it was agreed that all hearings would be in
public and any ‘in camera’ hearings would be the exception after being motivated for.
The TRC Process
The main objective of the Act was to ‘promote national unity and reconciliation in a spirit of
understanding which transcends the conflicts and divisions of the past’.
Initially, amnesty was for acts committed between the 1 March 1960 and the 8 October 1990.
This was extended twice, first to the 6th December 1993 and then again to the 11th May 1994, the day
before the presidential inauguration. This was in order to accommodate all potential applicants, especially
the right wing.
The Act established three committees:
The Committee on Human Rights Violations whose function was to conduct enquiries into gross
violations of human rights and present as complete a report as possible detailing human rights violations
in South Africa during this period.
The Committee on Reparation and Rehabilitation whose function was to gather information and make
recommendations to the President on reparations to be made to the victims.
The Amnesty Committee which had jurisdiction to grant complete amnesty to applicants who made full
8
disclosure of all relevant facts regarding offences committed with a political objective in the course of
conflicts of the past.
The Amnesty Process
Civil and criminal amnesty was granted to persons upon individual application, who made full
disclosure of relevant facts, whose act was proportional to the objective aimed at, (the so-called Norgaad
principles,) and demonstrated that the criminal acts in respect of which amnesty was claimed were
committed with a political objective during the course of past conflicts.
The amnesty committee was chaired by a judge of the High Court. There were a number of
judges seconded to the Amnesty Committe, and a judge had to chair any committee which involved a
gross violation of human rights.
Gross violations of human rights were defined as killing, abductions, torture and severe ill
treatment.
The definitions of gross violations of human rights as well as victims were politically neutral in
that it was not dependent on which side you were on. Thus, a policeman who was shot by a guerrilla
could be a ‘victim’ of a human rights violation.
Amnesty was also extended to the state on whose behalf some of these violations were carried
out. Accordingly, the State could not be held vicariously liable for civil damages if amnesty had been
granted for any action.
Finally, there were 7 116 applications for amnesty, 5 143 were rejected (two thirds) and 1 973
were granted.xv
Consequences for persons who did not apply for amnesty
In terms of the TRC legislation, persons who were refused amnesty or who did not apply for
amnesty would be prosecuted. The state has been extremely lax about pursuing these prosecutions.
Future considerations for Amnesty
Having lived most of my life under apartheid, as an activist who was tortured, as a lawyer who
represented persons who were tortured and families of detained and disappeared persons, I would have
preferred it if perpetrators were all put on trial. However, if the cost was the total destabilization of
society, condemning another generation to brutality and the stunting of its development then, I am in
retrospect still in favour of amnesties in exceptional circumstances but on the following basis:
•
•
•
•
Firstly, recognizing the primacy of victims of human rights violations.
Any amnesty process adopted had to be legitimized through democratic processes and itself be
part of a broad democratization process.
The participation and active involvement of citizens in the TRC processes has to be proactively
encouraged.
Amnesties have to be conditional on full disclosure, proportionality of the crime to the objective
aimed at, within the context of a political struggle (depending on the local perspective) and upon
individual application.
9
•
•
•
•
An oversight body be appointed or possibly the task be assigned to the national human rights
institution to ensure that the recommendations of the TRC are implemented.
Adequate reparations to victims must be timeously dispensed. In South Africa, the government
decided to pay only one sixth of the TRC’s recommended reparations for victims.
The narrative flowing from the amnesty hearings and the other TRC processes must be recorded,
preserved and widely disseminated.
International human rights standards and international humanitarian law standards must be upheld
as being the template by which any behavior is measured. Those of us who are committed to a
vision of a shared humanity based on respect for human rights must not compromise on these
hard fought for standards of human conduct:
Conclusion
Dispossession, torture, summary executions and disappearances will always be morally
wrong, - gross violations of human rights and for which perpetrators in the normal course will be
held accountable. I cannot stress enough the sense of empowerment we human rights activists felt
from the support of the international community. We have a responsibility as human rights
activists to give Palestinians the same support. None of us can be free as long as Palestine is in
bondage.
***
10
ANNEX
Report - Working group established under
paragraph 1 of the Groote Schuur Minute i.
On 2, 3 and 4 May 1990, at Groote Schuur in Cape Town, a delegation of the African National
Congress met the State President accompanied by Ministers and officials. At the conclusion of
the meeting a document, called the Groote Schuur Minute, was adopted. A copy thereof is
attached. Paragraph 1 provided for the establishment of a working group. The ANC nominated as
its representatives on the working group, Messrs Zuma, Maduna, Nhlanhla, Pahad, Phosa and
Ndlovu (its members on the Steering Committee). The Government nominated as its
representatives Minister Coetsee, Deputy Minister Meyer and Messrs Van der Merwe,
Swanepoel, Louw and Viall, Major General Knipe and Brigadier Kok.
2. The Working Group was charged with Ø making recommendations on a definition of political offences in the South African
situation;
Ø discussing, in this regard, time scales; and o advising on norms and mechanisms for dealing
with the release of political prisoners and the granting of immunity of political offences to those
inside and outside South Africa.
3. It is recognised that in terms of the Groote Schuur Minute, the category of persons involved
only in offences set out hereunder have already been catered for, for immediate attention:
3.1 The leaving of the country without a valid travel document;
3.2 Any offences related merely to organisations which were previously prohibited (including
membership of Umkhonto we Sizwe).
4. Persons in the above category are entitled to be dealt with in terms of the provisions set out in
paragraphs 6.2 and 6.3 hereof, as the case may be.
5. The Working Group met on a number of occasions and reports as follows:
DEFINING POLITICAL OFFENCES IN THE SOUTH AFRICAN SITUATION:
6.1 The following classes of persons, whether inside or outside South Africa, must be taken into
account with regard to pardon or indemnity for political offences:
11
(a) Persons already sentenced, including persons serving a sentence, persons subject to any
suspended sentence, persons awaiting execution of a sentence or where the case is on appeal or
review.
(b) Persons who may be liable to prosecution, or who are awaiting or undergoing trial.
(c) Persons in detention.
6.2 The power to pardon is vested in the State President by virtue of section 6 of the Republic of
South Africa Constitution Act, 1983 (Act 110 of 1983), and section 69 of the Prisons Act, 1959
(Act 8 of 1959), and will apply to persons already sentenced, i.e. class (a) above.
6.3 Special power to grant indemnity is required in regard to persons referred to in class (b)
above. The relevant power is contained in section 2 of the Indemnity Act, 1990. Section 6 of the
Criminal Procedure Act, 1977 provides for the stopping of a prosecution and may therefore be
applied.
6.4 The recommendations contained in this document relate only to political offences and in no
way imply any limitation upon the general exercise of the powers mentioned in paragraphs 6.2
and 6.3.
6.5 In preparing for the making of'recommendations on a definition of political offences in the
South African situation', the following principles and factors were noted (the principles and
factors are largely those applied by Prof. Norgaard in the Namibian situation after study of the
jurisprudence and the representations of the parties concerned and do not purport to be
exhaustive): 6.5.1 There is no generally accepted definition of'political offence' or 'political
prisoner' in international law. What is generally accepted, however, is that principles developed
in the field of extradition law are relevant in distinguishing between 'political offence' and
'common crimes'.
6.5.2 The law and practice of states show that there is now a considerable degree of consensus
both as to the types of offence which may in principle be classified as political as well as to the
sort of factors which should be taken into account in deciding whether an offence is 'political' or
not. In particular, the following are aspects of the law and practice of extradition which appear to
provide valuable guidance:
(a) Whether or not an offence is political depends on the facts and circumstances of each
individual case. The question is thus approached on a case by case basis.
(b) Certain offences are recognised as 'purely' political, e.g. treason directed solely against the
State and not involving a common or 'ordinary' crime such as murder or assault or the
dissemination of subversive literature.
(c) In certain circumstances a 'common' crime, even a serious one such as murder, may be
regarded as a political offence. Here the following are the principal factors which are commonly
taken into account by national courts: (i) The motive of the offender - i.e. was it a political
motive (e.g. to change the established order) or a personal motive (e.g. to settle a private grudge),
12
(ii) The context in which the offence was committed, especially whether the offence was
committed in the course of or as part of a political uprising or disturbance.
(iii) The nature of the political objective (e.g. whether to force a change in policy or to overthrow
the Government), (iv) The legal and factual nature of the offence, including its gravity (e.g. rape
could never be regarded as a political offence), (v) The object of the offence (e.g. whether it was
committed against Government property or personnel or directed primarily against private
property or individuals).
(vi) The relationship between the offence and the political objective being pursued (e.g. the
directness or proximity of the relationship, or the proportionality between the offence and the
objective pursued).
(vii) The question whether the act was committed in the execution of an order or with the
approval of the organisation, institution or body concerned.
6.6.1 The Working Group endorses the principles and factors set out in paragraph 6.5.2 and
accepts that these will form the basis of guidelines to meet the South African situation when
considering the grant of pardon or indemnity in respect of political offences.
6.6.2 As stated in the Groote Schuur Minute, it is understood that the Government may in its
discretion consult other political parties (and movements, and other relevant bodies with regard
to the grant of pardon or indemnity in respect of offences relating to them. For this purpose it
shall be free to formulate its own guidelines which it will apply in dealing with members of such
organisations, grouping or institutions, governmental or otherwise, who committed offences on
the assumption that a particular cause was being served or opposed.
Time scales
7. i Having defined political offences, the norms and the guidelines a cut-off date will have to be
fixed. Pardon and indemnity will only be considered in respect of political offences committed
on or before that date.
7.2 Bearing in mind the preamble to the Groote Schuur Minute, the Working Group accepts that
the process should proceed as expeditiously as possible. It is understood that diverse periods for
pardon, indemnity and release will apply to diverse persons, categories of persons and categories
of offences. A mechanism to provide advice to Government in this regard is necessary.
7.3 It is understood that the Government may, without waiting for the implementation of the
process contemplated in this document, proceed to exercise the powers referred to in paragraph
6.2, in terms of existing policy. This may result in substantial results in the very near future in
regard to persons referred to in class (a) of paragraph 6.1.
13
A Mechanism
8.1 The granting of pardon or indemnity in respect of a specific offence or a category of
offences, is an executive governmental function. The purpose of devising a mechanism, is to
provide the executive with wise advice and to demonstrate that the interests of all parties are
being taken into account in as objective a manner as possible.
8.2 It is suggested for this purpose that a body or bodies be constituted, consisting of a convenor
with ad hoc appointments from concerned groups when dealing with particular offences .(or
categories of offences).
8.3 It is recommended that this Working Group be kept active in respect of ANC interests.
14
i
The ANC & South Africa’s Negotiated Transition to Democracy & Peace; Mac Maharaj; Pg. 17; Berghof Transition Series No. 2. ii
“Negotiating the Release of Political Prisoners in South Africa” by Kate Savage; Research report written for the Northern Ireland Programme of the Kennedy School of Government at Harvard 2000. iii
iv
v
Ibid “i”above, Mac Maharaj; Pgs 17 & 18. Ibid “i”above, Mac Maharaj; Pg 18. US Dept of State; Background Note: Namibia; Pg 4. vi
Resolution 385 adopted on 30th January 1976 states in Section 11 (b): “Demands again that South Africa release all Namibian political prisoners, including all those imprisoned or detained in connection with offences under so‐called internal security laws, whether such Namibians have been charged or tried or are held without charge and whether held in Namibia or South Africa.” vii
Transition in Namibia 1989‐1990: and the South African Case; Christopher Saunders; Transformation 17 (1992). viii
“UN Peace Implementation in Namibia: The Causes of Success”; Lise Morje Howard; International Peacekeeping, Volume 9, No. 1, Spring 2002, Pg 108. ix
“How SA emerged as a democracy from the crises of the 1990s”. South African History Online; www.sahistory.org.za/article/negotiations‐towards‐a‐new‐south‐africa. x
Ahmed Kathrada, Jafta Masemola, Raymond Mhlaba, Wilton Mkwayi, Andrew Mlangeni, Elias Motsoaledi and Walter Sisulu were released shortly after F.W. De Klerk’s inauguration as State President. xi
Beeld newspaper; 11 June 1990 – cited by Kate Savage:Ibid Pg 3. xii
Ibid; Kate Savage; Pg 2. xiii
“Peace with Justice: Amnesty in South Africa” – Paper delivered by Hanif Vally on 6 December 2007 at a conference in Paris at the French National Assembly. xiv
“National Unity and Reconciliation: The Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict , untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful co‐existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex. The pursuit of national unity, the well being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society. 15
The adoption of this Constitution lays down the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgressions of humanitarian principles in violent conflicts and a legacy of hatred, fear , guilt and revenge. These can be addressed on the basis that there is a need for understanding but not for revenge, a need for reparation but not for retaliation, a need for ubuntu, [2] but not for victimisation. In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past.” xv
“Traces of Truth” TRC; Category 3; Amnesty; www.truth.wwl.wits.ac.za