The first step to reconciliation was the seeking of a peace accord between the communities. Most of the country’s organisations and bodies from all sectors of society such as the South African Council of Churches, the Consultative Business Movement, the ANC or the government came together and started working on a peace conference and negotiated the future of the South African political institutions. On September, 14^th, 1991, the National Peace Accord was unveiled and signed by 26 representatives of the main political parties and organisations, the government, security forces, businesses, trades unions and the religious leaders. All committed themselves to the eradication of political violence, the advocacy of a plural democracy and the project of reconstructing and developing the country. This accord was unique. It intended to transform a culture of violence into a culture of conflict resolution launching a large-scale operation by setting up peace committees everywhere in the country at the local, regional and national levels. The peace advocators wanted to take the lead and reverse the country’s spirit. They promoted a couple of powerful ideas: empowering the pacific forces of society, calling up to third parties, setting up peace structures, helping people to find humanity in every person, spreading the power of truth and forgiveness.

In 1994, the government of National Unity decided to go a step further. South Africa needed to lay down all the resentment and start a reconciliation process. The National Peace Accord operations was put to an end and a temporary constitution came into force. The Apartheid laws were repealed, the State was decentralised and a Human Rights Charter was agreed upon. Following the enthusiasm for a peaceful conflict resolution process, a law was passed in 1995 under the title "Promotion of National Unity and Reconciliation Act" (PNUR). This Act set up a Truth and Reconciliation Commission.

Betting on a TRC: structures and risks

Uncovering past atrocities is a difficult task for every. After the end of the Cold War led many countries came to question and examine their past governments in order to be able to start a new era. From 1974 to 1991, a dozen truth commissions were set up, most of them in Latin America but also in Ethiopia or in the Philippines. However, turning over the past and its misdeeds is a risky operation and can jeopardise the country’s transition to peace and democracy. The setting up of truth commissions must also make understandable this double-faceted intention to dispense justice by punishing the authors of serious crimes and at the same time to work for national unity by ensuring political stability even with leaders of the past regime. The prosecution of criminals should not touch back an explosion off.

A truth commission is an official but temporary and non judicial mechanism whose power permits it to lead investigation on human rights violations. In South Africa, the TRC was built on a political compromise between the different actors. Considering the risks pointed out above, the ideas of blanket amnesty and prosecution were put aside. The South African TRC would be able to grant the criminals amnesty in exchange for a full and public disclosure. Before getting into the controversial question of amnesty, what were the structure and missions of this commission? How did it operate? The South African TRC was expected to give "as complete a picture as possible of the causes, nature and extent of human rights violations from 1 March 1960" (PNUR). Its objectives as set out in the enabling statute were first to gather information on past facts, provide a space for victims to tell their story, make recommendations, unveil responsibilities and propose sanctions. On the long-run, it aimed at promoting national unity and bringing reconciliation to all the people of South Africa so that history does not reiterate. The TRC consisted of three committees: the Committee on Human Rights Violations, the Committee on Rehabilitation and Reparation and the Amnesty Committee. The Committee on Human Rights Violations was responsible for gathering information on human rights violations. The Rehabilitation Committee was responsible for making recommendations on reparations to the Parliament. The Amnesty Committee granted amnesty to perpetrators of crimes related to the political situation between 1 March 1960 and 10 May 1994. In order to show transparency, the members of each committee were appointed by the government. The Amnesty Committee was quasi independent from the Commission and was the only body to enjoy the capacity to decide and recommend without any possible resort.

The granting of amnesty: Which procedure for what kind of justice?

This Amnesty committee was responsible for the main task of the TRC, that is dealing with the lot of past criminals. Granting them amnesty in exchange for full disclosure would be the most important achievement of the TRC and thereby was the most controversial issue in the set-up of the TRC. Indeed, while apartheid had been considered since 1973 as a "crime against humanity" by the United Nations, how was it possible to forgive such a crime?

"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" (PNUR). All common law crimes not related to political motives were not included. A person seeking amnesty had to apply to the Amnesty Committee. The applicant must prove that an act for which amnesty was sought had been committed during the period within the mandate of the Commission and had been politically motivated or committed in order to carry out the objectives of a particular political organisation or institution. The crime must be proportionate to the political motive and more importantly, the applicant must make full disclosure of the acts committed. Thus, in the case of South Africa, amnesty was conceived as a judicial process and not as a political amnesty that actors of the transition to democracy would grant themselves. It was never accepted as a general amnesty or an unconditional one which would have created a real culture of impunity and would bury any hope for the rule of law to emerge. It was accepted in exchange for truth seen there as a moral reparation. It is important to note that all individuals having not applied to amnesty before May 10^th, 1997 were likely to be sued in court.

Considering that no archives on apartheid crimes were available and that prosecution would have been costly and inefficient, the amnesty process was favoured by many. The most positive was that the procedure would permit to know and acknowledge the truth on what had happened. But on the other side, the amnesty process raised questions and doubts in people’s mind. From a moral point of view it was first criticised for not requiring a clear apology from the perpetrators. From a normative point of view, was choosing not to punish criminals against humanity not in itself a violation of international law and victims rights, principles that the new South Africa had just recognised as hers? How could those criminals not be eligible to prosecution and sanctions? The South African Constitutional Court examined the constitutionality of the amnesty process. It came up against contradictory norms: the Declaration of Fundamental Rights and the Declaration on Reconciliation and National Unity. It applied the principle according to which the special rule departed from the general one. Thus the constitutional and transitory regimes often accept that the democratisation process induces some departures from the new rules. The South Africa’s TRC specificity was there underlined: its power to grant amnesty happened to be constitutionally valid. Consequently there was no "exceptional justice" that would have not been a "justice" at all but there was rather a new form of justice called "transitional justice".

More than being transitional, this kind of justice was "restorative" and here lies another specificity of the TRC’s work. According to the TRC, restorative justice "seeks to redefine crime: it shifts the primary focus of crime from the breaking of laws or offences against the faceless state to a perception of crime as violations against human beings ... (and it) encourages victims, offenders and the community to be directly involved in resolving conflict". Here the goal was not that the perpetrators be sanctioned and imprisoned to ensure that they would not act likewise in the future - which would define a "retributive" system of justice - but rather it aimed at reconciling a population, letting the perpetrators confess their fault and the victims forgive.