South Africa’s Constitutional Court recently made a landmark ruling on the right to truth (The Citizen and others v McBride, decided on 8 April 2011).
The question before the South African Constitutional Court was whether a person convicted of murder but granted amnesty (in the mid-90s) can now be called a ‘criminal’ and a ‘murderer’. The judgment came after a former police chief Robert McBride sued The Citizen newspaper for calling him a murderer though he had been granted amnesty by the Truth and Reconciliation Commission for his role in planting a bomb in Magoo’s bar in Durban in 1986. The High Court and Supreme Court ruled that amnesty wipes out a conviction, making it as if the murder never occurred, and therefore that people should not call McBride a murderer. But the Constitutional Court overturned this, as it considered that amnesty did not erase the fact that McBride had indeed committed murder. (See an interesting legal analysis by Rosalind English in UK Human Rights Blog).
In the words of Justice Cameron, who drafted the decision, “the statute‘s (Reconciliation Act) aim was national reconciliation, premised on full disclosure of the truth. It is hardly conceivable that its provisions could muzzle truth and render true statements about our history false” (para. 60). As noted by Howard Varney, from the International Center for Transitional Justice, this case is of critical importance in the ongoing process of reconciliation of the South African society. A different ruling would have meant that “those amnestied would have received an additional benefit: the underlying facts of their particular cases couldn’t be held against them in any moral or public manner. No newspaper could refer to the perpetrators as murderers or kidnappers or torturers. They would now have to be regarded as individuals who, for all intents and purposes, didn’t commit those acts”.
The McBride ruling constitutes a landmark case in the recognition of the right to truth at the domestic level. The ruling is consistent with the development of international law and the evolution of the international jurisprudence in the field of human rights. In this regard, the Inter-American Court of Human Rights recently confirmed that the right to truth is closely linked to the right to justice and to the right of access to information, enshrined in Article 13 of the American Convention on Human Rights (Gomes Lund and others v. Brazil, Judgment of 24 November 2010, para. 201).