The fundamental questions here are (i) what become paramount at this material point in time:
peace or justice? (ii) Is amnesty the answer to the challenges that Zimbabwe contends with? (iii) Will
amnesty be accepted by the public and can it serve as a remedy? (iv)What are the other options or
complementary approaches, should be part of the approaches?
Writing on options for transitional justice, Bryan Sims writes, "The demand for criminal justice is not
an absolute but must instead be balanced with the need for peace, democracy, equitable
development and the restitution of the rule of law.”43As such, it is usually very helpful to have sets of
approaches that complement each other and seek to comprehensively address crimes committed.
For amnesty to be helpful to the search for truth, justice and peace and reconciliation in Zimbabwe,
key factors need to be taken into consideration.
Firstly, amnesty laws should be limited temporally and in a geographic scope and should identify
specific violations for which perpetrators will not be prosecuted. A definition of these specific crimes
must be provided and amnesty should not be automatically granted, as each individual must apply
for it while prosecuting authorities maintain the power to independently investigate and prosecute
crimes. Thus, the "blanket effect" in relation to the crimes and time periods to which amnesty does
apply will be avoided. It is essential for these amnesties to be selective and exclude from their scope
those who have committed grave international crimes such as war crimes, crimes against humanity
and genocide as well as certain grave violations of human rights impermissible under the customary
international law.
Amnesty should further be conditional. If an amnesty is given in a way that ignores the past, it may
set the scene for future conflict. Amnesty must then be granted only to persons who make full
disclosure of all relevant facts the amnesty covers. In case perpetrators refuse to deliver the full
truth, a mechanism should be set aside for amnesty to be revoked. The prosecution must then prove
that the perpetrator had the knowledge of violations he or she refused to disclose.
Another condition for applicants to be granted amnesty could be to make a public apology for the
acts they have committed, thus contributing to the reconciliation process in Zimbabwe.44
Conditional amnesties do have its challenges. In South Africa, conditioned amnesties were
unsuccessful to reveal the whole truth, undermining the reconciliation process. This is due to the
absence of an effective parallel criminal process threatening those who refused to reveal the truth. 45
However, that should not stop Zimbabwe from granting conditional amnesty. But timing remains an
important factor: arguments should be raised in a context where they may be accepted. There are
contexts where amnesty will not favor reconciliation.
Is the context in Zimbabwe in favor of such amnesties?
More importantly, Zimbabwe is currently facing a social crisis: building trust is crucial for the Nation's
future. Many cases of abuse committed remain unaddressed, among them post-independence
abuses, elections related violence and mass human rights abuses in diamond mines. These acts of
violence have been erased through the granting of amnesty. In these conditions, amnesty is not
perceived as a tool for reconciliation but rather as a tool to protect perpetrators of violations. In
Afghanistan, the government prioritized the reconciliation with former combatants and left victims
43
Sims, Bryan (2008) ‘The Question of Amnesty in Post Conflict Zimbabwe’, Available at:
<https://www.academia.edu/2445282/The_question_of_amnesty_in_post_conflict_Zimbabwe
44
"Negotiating peace in Sierra Leone: Confronting the justice challenge" PriscillaHayner, p.15
45
"A second bite at the amnesty cherry? Constitutional and policy issues around legislation for a second amnesty ",
Jonathan Klaaren and Howard Vamey, in South African Law Journal; 117; 572-593; South African law jounral JUTA; 2000
9