The pending prosecution of Adriaan Vlok and Johann van der Merwe has evoked a widespread view that people who failed to seek amnesty from the Truth and Reconciliation Commission (TRC) have only themselves to blame and must now expect to face criminal trial. It has also sparked concern that such trials might ‘undo’ the reconciliation the TRC achieved. However, these perspectives overlook the flaws in the TRC’s operation and its questionable legitimacy right from the start.

Even before the TRC began its work, it was evident that many of its commissioners had links to one of the major protagonists in past conflict, the African National Congress (ANC). In the 1980s, TRC chairman Desmond Tutu was a patron of the United Democratic Front, the ANC’s internal ally. Many other commissioners had similar struggle credentials. By contrast, no commissioner with links to the other major protagonists–the Inkatha Freedom Party (IFP), the National Party (NP), or the Pan-Africanist Congress (PAC)–was appointed. This skewed the composition of the commission, casting doubt on its capacity to be even-handed.

The TRC’s leanings became more apparent after the commission began its work. They were evident again in the granting of a collective amnesty to 37 ANC leaders who had omitted to disclose their role in political violence. This extraordinary decision contradicted the criteria for amnesty laid down in the commission’s founding legislation and was therefore set aside by the courts. Further flaws in the TRC’s methodology were later documented by my colleague Anthea Jeffery in her book The Truth about the Truth Commission.

The TRC lacked factual evidence for many of its findings of accountability for political killings. The 21 300 victim statements on which it relied were untested, generally uncorroborated, and often based on hearsay and conjecture. The 7 100 amnesty applications which it received might have yielded stronger evidence, but 90% of the relevant amnesty statements had yet to be substantiated when the commission reached its key conclusions.

Though the decade from 1984 to 1994 had witnessed some 20 500 political killings–all of which fell within the TRC’s brief–the commission left 12 000 or more of these deaths unexplained. It gave only cursory attention to necklace executions and the killing of hundreds of IFP supporters. The TRC also brushed over the people’s war launched by the ANC in 1984. Though such a war, by definition, draws no distinction between combatants and civilians and regards the latter as fair targets for attack, the TRC accepted that the ANC’s policy was to avoid civilian deaths. It also implied that relatively few such deaths could be attributed to the ANC, and cited extenuating factors to help justify these killings.

By contrast, the TRC found that the protracted people’s war initiated by the PAC had primarily targeted civilians. This, it said, was not only a gross violation of human rights but also a violation of international humanitarian law. Why the TRC applied a seeming double standard in favour of the ANC and against the PAC has never been explained.

The TRC was supposed to base its findings of accountability on a balance of probabilities and give reasons for its rulings. Instead, it disregarded a number of earlier judicial rulings, substituting its own contrary findings without adequate justification. To cite two (of various) examples:

- The TRC found the police jointly responsible (with the IFP) for the Boipatong massacre of 45 ANC supporters in June 1992. However, British experts called in by the Goldstone commission had found no evidence of police involvement, while a criminal trial had concluded that the police were not involved.
- The TRC said that the fatal shooting of eight IFP supporters in March 1994 outside Shell House, the ANC’s national headquarters, had followed an IFP attack on the building. However, a judicial inquest had earlier dismissed the accusation of an IFP assault on Shell House as a fabrication.

The TRC’s leanings from the start gave non-ANC supporters little reason to expect fair treatment and discouraged them from applying for amnesty. Their concerns were also vindicated in 1998 when the publication of the TRC’s main report revealed not only the shortcomings outlined above but also a host of other defects. These further eroded the TRC’s legitimacy and the basis for reconciliation.

A fundamentally flawed TRC process has already given rise to a careful choice of the culprits held accountable for past killings. A prosecution process which concentrates on the ANC’s opponents and ignores the ANC’s own role in violence will compound perceptions of injustice. It may also undermine the credibility of the National Prosecuting Authority, already accused of partisan conduct regarding Jacob Zuma.