Select Committee on Northern Ireland Affairs Written Evidence


APPENDIX 24

Memorandum submitted by Mr Adrian Guelke

THE SOUTH AFRICAN EXAMPLE

  There is a lot of interest in Northern Ireland in whether the South African transition to democracy has lessons for the province, especially in the realm of reconciliation. However, some misconceptions about what happened in South Africa exist that limit the relevance of South Africa's experience to Northern Ireland. Thus, it is often mistakenly imagined that the establishment of the Truth and Reconciliation Commission (TRC) was a direct result of South Africa's negotiated settlement. This was not the case. What the parties agreed to in the negotiations prior to the 1994 elections was that "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". They did not agree on the mechanism that should be employed to achieve this end. The epilogue to the interim constitution of 1993 mandated the parliament elected in April 1994 to determine how the clause on amnesty should be implemented. The leaders of the ANC favoured the mechanism of the TRC for two reasons. Firstly, they believed that the ANC would largely escape criticism because its limited "armed struggle" had been conducted outwardly at least in accordance with international norms. Secondly, they believed that the process would be damaging to the National Party, which had emerged from the 1994 elections as the ANC's main rival. Both the National Party and the Inkatha Freedom Party (IFP) expressed serious reservations about the creation of the TRC during the passage of legislation to set it up and were even more hostile to it in practice.

  The calculation by ANC leaders that the process would damage politically anyone associated with government during the apartheid era proved correct. The TRC hearings and report did much to discredit the former rulers of South Africa. They contributed to a collapse in support for the National Party's successor, the New National Party, and paved the way for it to be replaced by the Democratic Party as the principal opposition party in the general election of 1999. However, the other calculation of the ANC that the TRC would gloss over violations of human rights by the "liberation movements" was confounded. Mandela recognised that the credibility of the TRC depended on its applying the same set of criteria to all parties and accepted the criticism with good grace, but that was not true of the party as a whole. A factor that angered members of the ANC even further was that F W de Klerk had forced the TRC Commissioners to remove many of their criticisms of his tenure of office from their report. De Klerk achieved this objective by the sheer volume of the material he submitted to the TRC in rebuttal of criticisms that would have otherwise appeared in the report. As a result of a legal ruling the TRC had been obliged to inform those it intended to criticise of the terms of any criticism ahead of the report's publication. A full evaluation of De Klerk's objections would have necessitated delaying the report's scheduled publication, a course of action the Commissioners decided against.

  However, notwithstanding the political calculations involved in the creation of the TRC, it can be argued that it was a necessary process. A remarkable feature of South Africa's transition was constitutional and legal continuity between the old order and the new. The interim constitution under which South Africa held its first fully democratic elections was enacted by the institutions that had been created under the apartheid regime. A consequence of constitutional and legal continuity was that the both the actions of those fighting apartheid and the excesses of the security forces in combating the forces of revolution remained violations of the law that could be the subject of prosecution in the absence of amnesty. Further, if an amnesty was not to encompass criminally motivated actions on either side, there had to be a mechanism to establish that the beneficiaries of amnesty had acted in accord with the political objectives of a recognised organisation. To this requirement was added a requirement of proportionality and full disclosure of their actions on the part of those applying for amnesty. It is worth underlining that applicants were not required to demonstrate that they regretted their actions or to express any kind of remorse.

  In any event, in the climate of opinion in which public hearings into gross violations of human rights took place, few would have expected members of the ANC to say that they regretted what they had done, since the country's transition to democracy seemingly justified anything they might have done. By the same token, there was an expectation that their victims should accept their bona fides. A number of cathartic moments of reconciliation did occur during the TRC's hearings. They usually involved victims forgiving perpetrators whose actions were accepted as having been directed at freeing the country from apartheid. However, while it may be claimed that in these individual cases, the TRC facilitated a healing process, these responses were by no means typical of reaction to the hearings. Opinion surveys after the publication of the TRC report highlighted that respondents of all races believed that the TRC's revelations about past atrocities had deepened the country's racial divisions.

  Generally uncritical reporting of the TRC by foreign correspondents took little account of these polls. They also tended to ignore other limitations of the process. Thus, the failure of the TRC to address external connections of the apartheid regime so as not to embarrass countries with which post-apartheid South Africa wished to have good relations hardly registered. Even more significantly, scant regard was taken of the fact that the TRC secured little co-operation in its investigations outside the ranks of those who had convicted of offences or against whom there was such substantial evidence that they had good reason to fear prosecution. Admittedly, investigating specific crimes and granting amnesty was not the only function of the TRC. It was also given the task of inquiring into the "causes, nature and extent" of the conflict. In short, part of the TRC's remit was to produce an official history of apartheid after 1960. However, given the notoriety of apartheid, producing an account that in broad outline, if not in some of the detail, was generally accepted did not present too many difficulties

  The context in which the Chief Constable of the PSNI, Hugh Orde, mooted the setting up of a truth and reconciliation mechanism in relation to Northern Ireland's troubles was the large number of unsolved murders that remained on the police's books from that era. Orde stated that there was little hope that many of 1,800 cases involving loss of life would ever be closed. The Chairman of the Police Board, Desmond Rea, backed by his deputy, Denis Bradley, supported Orde's idea and elaborated on it. In an interview with BBC Radio Ulster on 18 February 2004, Rea suggested that it should involve an amnesty for the perpetrators of troubles-related crimes, including the unsolved murders referred to by the Chief Constable. Rea argued that a truth commission could prove more useful than a series of judicial inquiries.

    There are people on both sides who have lost lives. There are people who have been injured, and there is a deep sense of hurt. Therefore a commission is the proper way to take account of that hurt, but also to seek to find a way forward that is a more productive way forward than the road that we appear to be embarking.

  Rea was alluding to the very high cost of the Bloody Sunday inquiry and to the fact that the pressure was building up for further judicial inquiries into state collusion with Loyalist paramilitaries, the Claudy bombing, Bloody Friday and the La Mon bombing of 1977.

  Reaction to Rea's comments was largely negative. Unionist hostility centred on the issue of amnesty, as did those of some of the victim groups. Ian Paisley Jnr proclaimed: "Professor Rea has now lost the confidence of ordinary unionists through his outrageous comments. What the chairman of the Policing Board is saying is that he has no confidence in the police to capture the perpetrators of 30 years of violence". Arlene Foster, who had defected from the Ulster Unionist Party (UUP) to the Democratic Unionist Party (DUP) after the November 2003 Assembly elections, declared: "The last thing Northern Ireland needs is a truth commission and an amnesty for terrorists. We could never be confident that a truth commission would get at the whole truth". The fact that the British had not as yet published the findings of Judge Cory on the Finucane, Hamill, Nelson and Finucane cases was the primary influence on nationalist reaction. Gerry Kelly of Sinn Féin suggested that the proposal was a stalling device to prevent the truth from emerging. The Social Democratic and Labour Party (SDLP) accepted that a mechanism was needed to help society move away from the past. However, the party emphasised that the proposal should not be used to defer any recommendations made by Cory. The Alliance Party also was willing to give the proposal for a truth commission further consideration, but its deputy leader made plain the party's opposition to any amnesty for criminal offences.

  Despite the largely negative reaction, Hugh Orde repeated his claim that some sort of truth and reconciliation forum was needed to deal with unsolved murders of the troubles, which he argued the PSNI simply did not have the funds to reinvestigate, in an interview with The Guardian on 23 February. His comments were strongly attacked by the DUP and Sinn Féin. This did not dissuade the British government from continuing to promote the possibility of a truth and reconciliation commission for Northern Ireland. At a press conference in Downing Street on 1 April, the Prime Minister, Tony Blair, explained why the government was still considering the question.

    I do not know whether necessarily a truth and reconciliation commission is the right way to do it, but I think there needs to be some way of trying to both allow people to express their grief, their pain and their anger in respect of what has happened in Northern Ireland without the past continually dominating the present and the future, and that is what we will try to do.

  However, it was not the case that the government simply disregarded all criticisms of the concept of a Northern Ireland TRC. One of the commonest objections was that the establishment of such a body was premature. The point was made forcefully by Dennis Kennedy in an article in The Irish Times. He argued that two key elements present in South Africa were missing in the Irish case. One of these was that in South Africa, "the argument was over, the dispute was settled". Kennedy went on:

    The National Party conceded that apartheid had to end, and that majority rule was inevitable. The ANC took power on foot of their democratic majority, and white minority rule was over. In Northern Ireland the argument is not over; everyone may give lip service to the consent principle, but Sinn Fein and the SDLP both continue to insist that Irish unity is their prime political goal. Nationalism continues to assert that partition was unjust and remains unjustifiable. Violence continues, though at a mercifully reduced level. Illegal armies have not gone away.

  In his comments on the possibility of establishing a truth and reconciliation commission, the Secretary of State for Northern Ireland, Paul Murphy has acknowledged this point. An example was in an article for The Irish Times to mark his fact-finding mission to South Africa. After discussing the publication of a new edition of Lost Lives, a catalogue of those killed during the troubles, Paul Murphy reiterated three prerequisites for dealing with the past. The first of these dealt directly with Kennedy's point: "First, the conflict must truly be over. There must be no more additions to Lost Lives, no more young people mutilated in `punishment' attacks by loyalist and republican paramilitaries".

  Murphy's third prerequisite was the need for a shared vision of the future. This addressed another of the objections raised by Dennis Kennedy, that missing in the Irish case was "acceptance of a common moral view of the situation". In South Africa, there was a consensus that apartheid had been wrong and that the quest for majority rule was justified in terms of democratic principles. As Kennedy put it:

    This retrospective viewpoint on ANC use of violence made it easier, though by no means easy, for Afrikaners to close the chapter. The fact that the crisis had been resolved in a clear-cut victory for one side, and the immediate end of minority rule and of apartheid, made it easier for the black majority to move on without systematic pursuit of those guilty of crimes in the name of the apartheid regime. Nothing like that applies in Northern Ireland. As John Hume repeatedly said, there was no moral cause to justify any violence.

  Murphy's second prerequisite was whatever methods were finally adopted to deal with the past "must come from the whole community and enjoy a consensus of support".

  When the Chief Constable once again raised the issue of an amnesty for troubles-related crimes, mentioning both South African and Peruvian experience, the Newsletter responded with an angry editorial entitled "No banana republic ways here, Mr Orde". Nationalists were scarcely less sceptical. The Irish News reported on its front page the reaction of Brian Feeney, one of the co-authors of Lost Lives, to the announcement of Murphy's fact-finding trip to South Africa. He expressed his concern that the idea of a truth and reconciliation was being used to block inquiries into controversial killings.

    Does Paul Murphy expect people to believe the British government will be an honest broker in a truth process when they were one of the key combatants in the conflict?

    Does anyone believe either the paramilitaries or security forces are going to turn up at a truth hearing and admit to everything that went on? Each party will try and score points from what the other side says.

    Families will support this process in the hope that they can get something positive from it. But the reality is that if this truth process is established it will just be used as another part of the conflict.

  In April 2004 the government accepted Judge Cory's recommendation that there should be inquiries in three of the four cases he investigated. However, the government deferred a decision on an inquiry in respect of the Finucane case. Suspicion that the government is still intent on covering up security-force collusion in this case is one reason why the notion of a truth and reconciliation has not engendered much nationalist support.

  Why then has the British government persisted with the idea? The most obvious reason—and one alluded to by Feeney in his comments—is that the government envisages setting up a Northern Irish version of the South African TRC in a larger context that it hopes will override most of the objections being put forward to the idea. This would be in the context of a final, overarching deal to end the conflict. Since the suspension of the institutions in October 2002, Tony Blair has expressed the opinion that the problems of implementing the Good Friday Agreement can no longer be fixed by incremental steps or interim arrangements. The logic of his position was that piecemeal attempts to revive the Agreement would no longer suffice. That explained the emphasis Blair placed on the need for acts of completion. Within such a holistic approach, a mechanism for dealing with the past would naturally have its place. It would have another advantage. As part of an overarching agreement, a Northern Ireland TRC could deal with a number of loose ends. Further, the inducement of a final deal might persuade the parties in Northern Ireland to drop their objections to the concept. Consequently, in this context it might be possible for the Secretary of State credibly to advance the argument that his three prerequisites had been met, especially if a final deal was greeted as a breakthrough on a par with the achievement of the Good Friday Agreement itself.

  Why the British government has placed such a strong emphasis on South African experience in promoting a mechanism for dealing Northern Ireland's past is not difficult to explain. The role that South African practices have already played in the peace process ensures that any model derived from the country's miraculous transition to democracy is imbued with a large measure of legitimacy in Northern Ireland, at least among supporters of a political settlement. Further, the high standing in Northern Ireland of Archbishop Desmond Tutu, who chaired the South African TRC, gives further weight to South Africa's example in this area. Admittedly, a weakness of the South African analogy is that it by no means assuages Unionist fears that a Northern Ireland TRC will be biased against them. This was no doubt why the Chief Constable invoked the experience of Peru in addition to South Africa in seeking once again to promote the notion that there needed to be a mechanism to achieve closure over deaths during the troubles. However, as the Newsletter's dismissive and contemptuous reference to a banana republic underlines, citing other cases does not necessarily increase the appeal of the concept.

  Hitherto, the government's enthusiasm for a Northern Irish version of the TRC has been explained in largely positive terms. It is also possible to interpret the government's interest in the idea in more defensive terms. While some victims groups and political parties in Northern Ireland have been hostile to the idea of a truth and reconciliation commission for a variety of reasons, the pressure for some such mechanism has been growing. Particularly since the South African transition, some such formal process has come to be seen internationally as virtually a necessary part of the resolution of any conflict. There is also considerable pressure on the government from local non-governmental organisations to address this gap in Northern Ireland peace process. Initiatives, such as the "healing through remembering" project, have arguably added to that pressure. Indeed, in large part because of the number of unofficial efforts in this area, Brandon Hamber concludes in a study comparing truth recovery in South Africa and Northern Ireland, that the nature and extent of the conflict seem likely to be well documented in Northern Ireland over the next decade. However, he accepts that achieving consensus on the causes of the conflict is likely to prove more problematic than in the South African case.

  Of course, it might also be argued that the very extent of unofficial investigations into Northern Ireland's past makes the setting up of a formal truth and reconciliation process redundant. Certainly, the very functions that the Secretary of State has identified as ones that might be performed by a Northern Ireland TRC, such as providing an opportunity for victims to tell their stories, have in fact been fulfilled in large part already without the government's imprimatur. Further, the release of paramilitary prisoners under the terms of the Good Friday Agreement limits the need for the creation of special arrangements for the granting of amnesty. There is admittedly scope to ensure that anyone who came forward to admit participation in paramilitary crimes did not run the risk of serving a two-year prison sentence before qualifying for release. Agents of the state might also be protected from the penal consequences of any admissions they made about their past behaviour. However, the likelihood of confessions by paramilitants or by agents of the state seems slight, as does their successful prosecution for crimes committed during the troubles. Consequently, the pressing need for such provision is at best arguable, though it might reduce the pressure being put on the police to reinvestigate past crimes, as well as criticism of their failure to bring the perpetrators of such crimes to justice.

  It may fairly be argued that victims groups currently outraged by the Chief Constable's advocacy of amnesty could change their tune once they appreciate how slim is the prospect of prosecutions for unsolved crimes of the troubles. That may make them far more amenable to a process that does not end with the imprisonment of the perpetrators, even for a relatively short period. However, there is no guarantee that this will be the case, since the outrage of at least some of these groups stems from more than simply that the perpetrators of crimes have not been punished. It also derives from anger at the according of any measure of legitimacy to the paramilitaries. Comparison with South Africa in this context begs the question of who, if anyone, was fighting for a legitimate cause in Northern Ireland.

  In the early years of the peace process, of all the parties to the conflict in Northern Ireland, Sinn Féin had the greatest stake in the comparison with South Africa. In particular, the comparison with the ANC flattered a party with relatively limited popular support. As support for the party has grown to the point where it is the largest nationalist party in Northern Ireland and has a strong presence in Southern politics, this reason for advancing the analogy with South Africa has lost some of its force. There now seems to be a greater emphasis on using the connection between Loyalists and apartheid and between the British state and Loyalists, hence connecting all three, to delegitimise their opponents. The issue of collusion also provides the party with a useful means to counter pressure on the Republican movement to move away from paramilitarism in all its forms by putting the British government on the defensive over past actions of the security forces. The government has now turned itself to South Africa's experience to provide a way of legitimising its response over dealing with the past more generally. What this brief paper has highlighted is the considerable difficulty of applying the South African model in this area to Northern Ireland. To be fair, the government is far from being unaware of the difficulties. None of the above should be taken to imply that achieving a larger measure of reconciliation is not important in the case of Northern Ireland or to underestimate the importance of reconciliation in the South African case. However, trying to use South Africa's success in this field is difficult because in fact the major agency of reconciliation in South Africa was not an institution, but a person, Nelson Mandela, and no equivalent figure exists in Northern Ireland.





 
previous page contents next page

House of Commons home page Parliament home page House of Lords home page search page enquiries index

© Parliamentary copyright 2005
Prepared 14 April 2005