The lack of political will to institute post-TRC prosecutions in South Africa: A threat to democracy and challenge for public law?

In the late 1980s and early 1990s, South Africa started a journey towards a negotiated settlement of its political crisis, and it was against the historical background of the crimes committed by both sides of the struggle in the apartheid-era that the National Party and the African National Congress reached an agreement on how to deal with the crimes of the nation’s immediate past, namely conditional amnesty through a Truth and Reconciliation Commission (TRC). When the TRC and the Amnesty Committee reached the end of their mandates in 1998 and 2003 respectively, the TRC recommended that more than 300 cases should be prosecuted. These involve, among others, people whose applications for amnesty have failed The State has no political will to prosecute the cases recommended by the TRC, and the impact the “unfinished business” has on victims, their families and South African society in general challenges democracy. This paper will aim to establish how public law should respond.