Azanian People’s Organization v. President of the Republic of South Africa

Apartheid, a system of racial discrimination, permeated South Africa’s governmental policies and practices beginning in 1948. Apartheid classified and separated persons by skin color and denied various groups the rights to vote and own property, among other rights. As a result, a large majority of South Africa’s population was denied fundamental human rights. During the 1990s, the South African government (defendant) commenced negotiations to transfer power to majority rule. During the negotiation talks, as a way to promote reconstruction of the nation, a provision was included in the Interim Constitution granting amnesty to some persons who had committed apartheid. The Promotion of National Unity and Reconciliation Act (Act) was subsequently adopted to implement the Constitution’s amnesty provisions. The Act established the Truth and Reconciliation Commission (TRC), which was comprised of three sub-commissions that were tasked with investigating facts, deciding upon indemnification for victims, and managing amnesty claims. The Act contained two main conditions that had to be satisfied before amnesty would be granted: (1) the applicant fully disclosed all facts related to the offense, and (2) the offense was associated with a political objective and was committed during a past conflict. Sections 20(2) and 20(3) of the Act outlined the specific elements that constituted a political objective. Section 20(7) further provided that, upon a grant of amnesty, no civil or criminal liability would attach. After the Act was passed, the Azanian People’s Organization and several apartheid victims (plaintiffs) challenged the constitutionality of the Act in the Constitutional Court of South Africa, arguing that section 20(7) violated section 22 of the Interim Constitution, which granted individuals the right to have an impartial court resolve all justiciable disputes.