With President Nelson Mandela's announcement last month of the nine-member panel who will select the Commissioners who will sit on the Truth and Reconciliation Commission (TRC), the process of determining the truth of the past and reconciling those who suffered injustices has been set in motion. A few days before Mandela's announcement at a conference organised by the Centre for the Study of Violence and Reconciliation, NGOs demonstrated in no uncertain terms their desire to be part of this process. It is in this light that the Freedom of Expression Institute (FXI) has raised some concerns about certain provisions which remain in the TRC Act.
While the secrecy clause in the original draft act, which called for all hearings relating to the granting of amnesty to be held behind closed doors, has been dropped, several other clauses in the final legislation continue to make provision for in-camera sessions. This raises some questions about how effective the commission will actually be in composing a good enough picture of the past and presenting the whole truth to the South African nation.
The original secrecy clause raised the ire of a number of or ganisations, including the Freedom of Expression Institute (FXI), earlier this year, with a few organisations threatening to withdraw their support of the commission if the clause remained.
The FXI, in its submission to the Select Committee on Justice argued strongly against this clause saying that the Interim Constitution reflected a strong emphasis on openness and accessibility in the affairs of the governments and state agencies. Specific reference was made to Section 23 of the Constitution, which guaranteed the public the right of access to all information held by the state or any level of government in so far as such information was required for the exercise or protection of an individual's rights. The FXI argued that in order to have fully informed political debate, not only must persons have freedom of speech but they must also be able to inform themselves through the large quantity of information that governments have collected and controlled.
Another argument put forward against this clause was that a victim may be denied the opportunity of contradicting evidence put forward by an amnesty applicant, thus seriously calling into question the fairness of the entire process. The only matters relating to the Amnesty committee which in terms of the Act will remain confidential are the applications and investigations PRIOR to any hearing. But once the hearing commences, all this information will then become public.
While the dropping of the secrecy clause is to be wel comed, Section 33 of the Act outlines two provisions that will allow the commission to declare any of its proceedings closed to the public. These provisions are if the commission feels it will be in the interests of justice or if any person may be harmed as a result of the proceedings being open. However, the proceedings can only be closed to the general public and NOT to a victim who has a direct interest in the proceedings.
The FXI, in its initial submissions on the draft legislation, acknowledged that limitations could exist on the public's right to information, but argued that these limitations should be justifiable in an open an democratic society based on freedom and equality. It said further that in the context of the Truth Commission, any limitation on rights of public access need to be necessary as well as reasonable. These limitations should undergo stringent tests particularly in the TRC since most of the matters it will deal with will be of a political nature.
One disturbing clause of Section 33, and which the FXI opposed in the initial draft, is that a hearing for an application for an in-camera session will automatically be held behind closed doors. This clause prevents any chance of an interested party from putting forward a counter argument as to why a session should not be held in camera.
On two occasions this year the FXI was in volved in a controversy over in-camera hearings of a statutory body. Both occasions involved the Cameron Commission's inquiry into Armscor's sale of weapons to a Middle East arms dealer. In the first instance, the FXI was requested to a make a submission when theSANDF launched an application for an in-camera hearing regarding a document classifying the countries to which South Africa was willing to sell weapons. The FXI argued that the commission should accept a new definition of national security proposed by the FXI and in line with the new Constitution. The Commission ruled in favour of releasing the document. The SANDF then immediately took up the issue in the Supreme Court, but eventually dropped the case when the Mail and Guardian newspaper published a early military document, but one which was similar to the document the SANDF was trying to withhold from the public. In the second instance, the FXI made a submission opposing an application of a key witness fo r an in-camera hearing. The witness argued that he feared a "media circus" and that he felt "threatened" by another party who was considering legal action against him.
The FXI argued that the Constitution granted access to information, although there could be a limit to this for good and justifiable reasons. The witness therefore had to provide good and justifiable reasons for an in-camera hearing. FXI felt that the witness's reasons did not measure up: the Commission ruled in favour of the hearing being held in public.
A part from an application for an in-camera hearing, Section 33 (c) of the Truth Commission Bill allows the commission to decide at its discretion whether it wants to conduct any session behind closed doors without having to hold a hearing on the matter. This makes it virtually impossible for organisations such as the FXI to work within the parameters of the commission to ensure that the public's right to access of information is honoured.