The ‘Postamble’ to the Constitution of the Republic of South Africa contains the following text which outlines the legal basis of the amnesty process of the Truth and Reconciliation Commission and is, in many ways, the source of the “South African Miracle�:

One such ghost from South Africa’s dark past came back to the fore following his death yesterday in his home in the Cape.

Pieter Willem Botha was born on January 12, 1916. He first appeared on South Africa’s political scene in 1948 when he entered parliament as the member for George in the Southern Cape. He moved quickly through the ranks, serving as Assistant and Acting Secretary of the Cape National Party's special Committee of Inquiry into Coloured Affairs, Deputy Minister of Internal Affairs (1958) Minister of Community Development and Coloured Affairs. Moving to Minister of Public Works (1964), Minister of Defence (1966), he was eventually elected Prime minister in 1978, executive president in 1984 and resigned in 1989 after a mild stroke and pressure from within his own government for political reform.

Following his death, the ANC – banned and persecuted when Botha was in government – was among the first to offer its condolences. However, the goodwill of the ANC in their response to Botha’s death belie the questions and growing tensions that such an honouring present to the society.

One basic problem is that Botha was never criminally convicted for crimes committed under apartheid. In fact, it may be said that one of the lingering social ailments in South Africa is a lack of closure in terms of the apartheid era crimes. The greyness of the situation results largely from the legal framework of the Truth and Reconciliation Commission which concluded that though no specific judicial guilt could be assigned – since the regular rules of trial did not apply to the Commission – Botha was found “responsible� but not guilty, for acts of human rights violation. Indeed, though the Commission was designed partly to encourage dialogue between victims and villains of apartheid, as well as offer almost wholesale amnesty to all who came forward to present to the Commission, the technical difference between assignment of guilt and responsibility, can lead to a false sense of denouement which may make it harder to heal, especially where the responsibility is assigned but not accepted.

Consider this passage from the Truth and Reconciliation Commission Report:

One legal principle invoked by the Commission is the maxim in international law which outlines the immunity of the state: par in parem imperium non habet ( those in a position of equality cannot rule against each other . This essentially deems that crimes committed as “acts of state�, that is, under the orders of the state, are not prosecutable because no state (the post-independence South Africa) can have jurisdiction over another, based on the notion of sovereign equality. Furthermore, this classification strips any individual who acts as an “agent of the state� of all liability for crimes committed while serving the state because the individual acted under the law. Thus, it is a lingering question whether the Commission process was sufficient to create a sense of mutual reconciliation in South African society when, ex-ante, the Commission relegated all guilt and criminal liability to the improsecutable “state�. It is clear though, from the anecdote above that Botha was guilty for some acts, and that even if the usual judicial regulations do not apply, he as State president (who gave orders that had to be carried out unlawfully) could be held accountable.

However, this is not about assigning guilt to a man who has now passed away. Rather, I wish to comment on the absurdity of the present situation. Here is a man who, years after democracy and majority rule were established in South Africa, held the process of truth and reconciliation in contempt, did not regret his actions during apartheid (see the same article) and is now accorded one of the highest honours the state can bestow on its citizens: a state funeral. The irony is obvious, if it is a somewhat pitiful consequence of human nature (to feel compassion for the family of the departed) and the South African constitution (requiring state funerals for all state presidents[1]). The ANC’s apparent commitment to preserving the honour of a past president of the State and to maintain the mirage of unity flies in the face of the very real, if extra-legal, responsibility for crimes committed against several other South African citizens. It isn’t clear whose honour they are really preserving though, since such an honour ignores the fact that some South Africans had their lives negatively changed through this man’s presidency, and yet he in life and death seems to have suffered no change in status. Condolences to the family of the departed are one thing. The offer of a state funeral conveys a completely different message, even if mandated by the law. This is an instance of the larger problematic phenomenon in which several South Africans are walking around today, having accepted that “responsibility� be assigned to them (by virtue of standing in the TRC hearings), instead of guilt through the due process of the law, without being required to at least accept such responsibility should it be assigned. Of course, the “miracle� now is that the entire society is supposed to be unconditionally reconciled[2].

Perhaps it is true that the amnesty granted by the Truth and Reconciliation Commission carried with it the genuine forgiveness of the entire people of South Africa. However, forgiveness without remorse on the part of the offender may be asking for too much from the victims of apartheid. Thus, unfortunately, it is easy to have less than positive feelings towards someone like Botha for being an unrepentant architect of apartheid and, apparently, justifiably so. In light of efforts to promote unity among the South African population, keeping this man’s funeral out of the public sphere may have been the more appropriate response by the ANC.

UPDATE: Although family representatives have refused the offer of a state funeral, the South African presidency has announced that flags will be flown at half mast in honour of Botha.

[1] It is quite interesting to note that those who argue that it would be justified for Botha to be given a state burial cite constitutional provisions that require that a former “head of state� be accorded such an honour. However, it seems to me that there should be a difference between the state in modern day South Africa and the apartheid state. In fact, the “state� that existed before independence was destroyed to give way to the “new� South Africa. The laws of this new state cannot apply to the officials of the old state. The two states might have occupied the same piece of the land but implying that they were successive governments in a way that binds the old to the new hollows the idea of independence and African independence

[2] The postamble to the South African Constitution outlined the main conditions for amnesty to be “full disclosure� during the Commission hearings and that the “offences [be] associated with political objectives�. One need not dwell too much on the flakiness of the latter given the difficulty of defining exactly what wouldn’t qualify as “political�. In fact the greatest crime of pre-independence South Africa – the institution of apartheid as a exploitative instrument of enslavement – can be conveniently classified as “political� – which renders the use of the Commission as tool to “account for past wrongs� farcical.