We are all the children of our times and the product of the cultural and political circumstances into which we are born and with which we grow up -F.W. de Klerk
The Truth and Reconciliation Commission (TRC) in South Africa was one of the most controversial yet revolutionary truth commissions. To this day it divides opinions (Potgieter, 2019). The most controversial feature of the TRC was the granting of amnesty to perpetrators who gave a full confession of their crimes (Mamdani, 2002, p. 33.). In operation from 1996-2003, it was set up to condemn apartheid, bring out the stories of apartheid era victims, and, at the same time, try and reconcile the different populations of South Africa so that the newly democratic country could move towards a more peaceful, progressive future (Leebaw, 2003, p. 25.). The TRC has inspired many subsequent truth commissions.
The main purpose of this essay is to examine whether the South African TRC should be used as a model for future truth commissions. After a brief background on the political situation in South Africa before the TRC, it shall delve into the functioning of the TRC. Then, we shall look at some of the drawbacks of the TRC and some of the steps that could have been taken in lieu of them. This essay shall then analyze the present situation in South Africa, see whether the TRC has had any lasting changes on the social and political landscape of the country.
A BRIEF BACKGROUND:
In 1948, after the National Party attained power, apartheid was introduced in South Africa through a series of laws. It was a system of racial segregation through which non-white South Africans had to live in separate areas and use separate public facilities (AUHRM).
South Africa is a very diverse country primarily consisting of four racial groups- The whites, the blacks, the coloreds, and the South Asians. The blacks, mainly made up of the original descendants of the area, were about 80% of the population. Under apartheid, all the blacks, irrespective of their tribes, were clubbed together and forced to live in Bantustans, depriving them of political rights, yet oppressing them through the state’s security forces (Gibson, 2015, p. 2.).
The whites, comprising about 9% of the nation’s population, descended from Dutch, English, Jewish and other European settlers. Apartheid didn’t differentiate among the whites, all of them enjoying the benefits of belonging to the “favored” race (Gibson, 2015, p. 2.).
The colored population was about the same size as the whites. They comprise an extremely diverse group having mixed heritages. The coloreds qualified as second-class citizens under the apartheid system, but were not subjugated to the worst of the apartheid policies and atrocities, and were even afforded certain political rights. In 1983, as a result of constitutional reforms, a separate chamber was created in parliament for colored people (Gibson, 2015, p. 2.).
The last group, comprising 3% of the population, consisted of Indians or Asians. They mostly descended form indentured laborers who had been brought over by Europeans to work on sugar plantations in the nineteenth century. They, like the coloreds, had some political power, but were denied equal rights (Gibson, 2015, p. 3.).
With mounting international pressure and the conclusion of the Cold War, by 1990, the National Party had to reconcile itself to the fact that apartheid was nearing its end. The UNSC, in 1976, even declared that, “apartheid is a crime against the conscience and dignity of mankind (Lingaas, 2017, p. 105.).
In 1990, President F.W. de Klerk lifted the ban on the African National Congress (ANC), and Nelson Mandela was released from prison after being behind bars for more than 26 years (Smith, 2010, p.1.).
The seed for a truth commission germinated in 1992, but it was not until 1994, once apartheid was abolished and Mandela had become President, that serious talks about a national truth commission began (Hayner, 2011, p. 27.).
THE TRC PROCESS:
“Truth commissions are temporary bodies, usually with an official status, set up to investigate a past history of human rights violations that took place within a country during a specified period of time.” (Chapman and Ball, 2001, p. 2.). They do not have the power to bring cases to trial or investigate suspected perpetrators. They mainly have the mandate to unearth the truth and document the injustices committed (Chapman and Ball, 2001, p. 2.).
In 1993, when South Africa’s liberation movements reached an agreement with state representatives to end apartheid and make the transition to democracy, the TRC began to form (Leebaw, 2003, p. 4.). The call for “ubuntu” or forgiveness signaled the desire to forgive and reconcile.
The most contentious issue during the formation of the TRC was whether amnesty would be granted to perpetrators. Amnesty was linked to a quest for truth, and depended on whether the crimes were politically motivated and if full confessions of these crimes were forthcoming (Hayner, 2011, p. 27.). After a lot of consideration and deliberation, the South African parliament passed the Promotion of National Unity and Reconciliation Act in 1995 (Lane, 2013, p. 6.).
Seventeen commissioners were selected for the TRC, comprising a very diverse group of individuals. Four came from the religious community; seven from law; five from medicine, nursing and psychology; three from NGOs; and three from politics. Desmond Tutu was elected as the chairperson of the commission, and many of the hearings had a religious touch to them (Chapman and Ball, 2001, p. 18.). All the commissioners administered some office or particular aspect of the commission.
Desmond Tutu is particularly characterized with linking restorative principles to the TRC. The commissioners were influenced by Jim Consedine’s book, Restorative Justice: Healing the effects of crime (1995). Additionally, they were influenced by the court judgement of S. v. Makwanyane and Another (1995), that incorporated the concept of ubuntu into national jurisprudence (Kamga, 2018, p. 640.).
The commission took testimony of over 21,000 victims and witnesses, and around 2000 of them appeared in public hearings. It also received 7115 amnesty applications, finally providing amnesty to 1167 people, with 145 people granted partial amnesty (Hayner, 2011, pp. 28-30.).
The commission was to work in three inter-connected committees: The Human Rights Violations Committee, the Amnesty Committee, and the Reparations and Rehabilitations Committee (Hayner, 2011, p. 28.). The commission commenced work in 1996 and finally concluded with seven volumes of reports in 2003.
The TRC has been particularly characterized by its pursuit of some key principles. Some of them are:
- Restorative Justice:
It was invoked to create a community that had for long been characterized by gross inequality and fundamental conflict. It sought to create a unique community with shared values and goals (Leebaw, 2003, p. 4). Restorative justice has garnered a lot of controversy. Many advocates see it as a model that other countries can use as they attempt to overcome their violent and conflict-ridden pasts. But critics feel it conflates justice with therapy. Restorative justice believes in addressing the damages suffered by individuals and communities as a result of past crimes. It uses the tools of remorse, pardon and dialogue to attempt to heal the underlying causes of conflict. It aims to re-integrate perpetrators into society and provide reparation to victims. Restorative justice is an informal communitarian approach, combining human rights with local traditions (Leebaw, 2003, p. 28.).
- Honesty:
The minimal requirements for amnesty and forgiveness, most victims’ families insisted, was the confession of the complete, unadulterated truth (Hayner, 2011, p. 2.). It was to give both, victims and perpetrators, the chance to confront the past and start afresh. Closely linked to the principles of restorative justice, honesty was a key criterion so that people could psychologically heal and move on rather than dwell on the past.
- Forgiveness and Healing:
Forgiveness, inspired by the theory of John Braithwaite, was based on shaming perpetrators in a reintegrative way, while respecting the individuals but condemning their deeds (Leebaw, 2003, p. 8.). Punishment could potentially damage the chances of reconciliation. Advocates of TRC, inspired by Hannah Arendt’s writings, feel that forgiveness not only repairs relationships, but helps “overcome” (Leebaw, 2003, p. 8.). The TRC, due to the presence of religious commissioners, also drew on Christianity for inspiration, advocating mercy and compassion (Leebaw, 2003, p. 19.). Healing was not just meant for individuals; it was meant to heal the rift between the races. By acknowledging the past, the nation was supposed to accept the truth and move on (Leebaw, 2003, p. 24.). Public testimonies were also conducted so that victims and witnesses could narrate their stories. They were also allowed to confront their perpetrators and demand justification for the atrocities that they or their loved ones had been subjected to. Through communal sharing of trauma, it was expected mental healing would take place (Leebaw, 2003, p. 7.). This can be best illustrated with the case of Elizabeth Hashe, a black woman whose husband had disappeared thirteen years earlier along with two of his colleagues. After the disappearance, rigorous investigations were conducted, but nothing came out of it. The TRC was finally responsible for uncovering their fate. Mrs. Hashe’s husband and his colleagues had been kidnapped and killed by the police, then their bodies were roasted over a fire for six hours till they turned to ash, and then the remains were dumped into a river. Despite knowing these gruesome details, Mrs. Hashe had a sense of closure, feeling that it was better to know about her husband’s fate than not know at all (Hayner, 2011, p. 2.).
DRAWBACKS OF THE TRC:
Despite its intentions and restorative principles, there were many drawbacks of the TRC. A lot of people feel that the TRC didn’t fulfill its true potential. By examining some of these drawbacks, we shall see where the TRC could have improved its working. This shall also prove to be a lesson to other TRCs that choose to draw inspiration from the South African model.
- Lack of remorse and full disclosure of truth:
Amnesty could be granted to perpetrators even if they didn’t feel remorse for their actions, as long as they disclosed the whole truth (Hayner, 2011, p. 6.). Even the disclosure of truth was a contentious issue. Many victims felt the accused used the TRC to escape prosecution, that they revealed only a fraction of their crimes. Monica Godolozi, a widow, felt that the perpetrators, who were making use of the amnesty feature of the TRC, were not revealing the true nature of her husband’s death (Hayner, 2011, p. 2.).
- Refusal to use powers at disposal:
The commission was accused of holding the aim of reconciliation higher than that of finding the truth. For a truth commission, the South African TRC had the rare power of seizure and subpoena. But the TRC was criticized for using these powers only a handful of times, wishing not to use these powers against the South African Defense Forces and the ANC, both of which were hesitant to turn over requested information. The TRC was also criticized for not using its powers to summon the minister of home affairs and Inkatha Freedom Party President, Buthelezi, in fear of violent reprisals (Hayner, 2011, p. 28.). Also, when the amnesty applicants sometimes gave incorrect information, the TRC was willing to let it slip by, blaming it on their faulty memories. In its aim to facilitate reconciliation, the committee was willing to ignore individual gross misdemeanors.
- Refusal of whites to accept complicity:
Despite the efforts of the TRC, a lot of whites refuse to accept their complicity in the apartheid regime. They live in a state of denial, wishing to forget their role in a system that has been internationally labelled as a crime against humanity (Theissen and Hamber, 1998, pp. 1-2.). Many whites, according to the CSVR survey, believe apartheid was a good idea that was poorly implemented. This shows that the TRC has not been effective in erasing the inherent desire for racial segregation (Theissen and Hamber, 1998, p. 2.).
- Emphasis on Christian values:
While the focus on mercy and forgiveness were much appreciated by many, many others, including commissioners, found it distasteful. They felt there was an imposition of Christian values. Many also felt it went against the African systems of justice (Shore, 2008, p. 166.).
- Diversity of Commissioners:
Since the commission comprised of commissioners from different backgrounds, they found it difficult to reach a common consensus on many issues due to the difference in ideologies. Also, each commissioner was accountable to only the group of commissioners, which, in essence, meant that they were actually only accountable to themselves. They sometimes also changed directions rapidly, putting senior staff under immense pressure to keep up and plan work (Chapman and Ball, 2001, p. 18.).
- Report:
The TRC report, in different sections, draws different conclusions. Desmond Tutu opens by saying that South Africa is “soaked in the blood of her children.” But in volume 5, the report emphasizes that the black community was majorly at the end of atrocities. While both these conclusions are most likely true, the moral and empirical implications are at odds with each other (Chapman and Ball, 2001, p. 31.).
- Dissemination:
A lot of emphasis was put on making the findings of the TRC accessible to the public. But its attempts at doing this fell considerably short. The five-volume report was published by a private printer rather than a government press, making it less affordable to the public. Also, due to an agreement with the publisher, the TRC could only post the report on its website for a limited time (Chapman and Ball, 2001, p. 35.).
- Bias:
21,000 people gave statements. Only 1818 were called forward to give their testimonies. On what basis were they selected? What about the others? Didn’t their stories matter? (Chapman and Ball, 2001, p. 38.)
- Representation:
The TRC wanted testimonies from different groups to emphasize its point that it stood for all. The commission made special appeals for members from the white community to come forward and give their testimonies. Whites were four times as likely as blacks to be selected for hearings. By striving for representation, many critics feel the TRC marginalized the disproportionate struggles of the black community. People felt the TRC was attaching greater importance to inter-racial healing than condemning apartheid policies that affected all of the black population (Leebaw, 2003, p. 24.).
HOW IMPACTFUL HAS THE TRC BEEN ON PRESENT-DAY SOUTH AFRICA?
To understand the true effectiveness of the TRC, we must examine the situation in present day South Africa, for there is no point in progressive, revolutionary steps if the impact of the revolution is not felt in the everyday lives of future generations. We shall primarily use the South Africa Reconciliation Barometer (SARB) report from 2019 for this purpose.
- A majority of South Africans believe the nation still needs reconciliation, while only half report that they have experienced reconciliation or that the nation has progressed towards reconciliation (Potgieter, 2019, p. 7.).
- Many believe reconciliation is impossible as long as corruption and gender-based violence are prevalent. It is all the more difficult if those affected by apartheid continue to remain poor (Potgieter, 2019, p. 7.).
- A vast majority feel positively towards national symbols and feel optimistic about unity, but disagree when it comes to accepting symbols of the apartheid past (Potgieter, 2019, p. 7.).
- The report shows greater bonding trust than bridging trust among South Africans. Xenophobic sentiments are still prevalent (Potgieter, 2019, p. 8.).
- Crime, coupled with limited capacity to prosecute perpetrators, has led to a growing feeling of danger (Potgieter, 2019, p. 9.).
- 66.1% of the respondents believe the TRC provided a good base for reconciliation (Potgieter, 2019, p. 24.).
- Many report that the involvement of various stakeholders is crucial for reconciliation, and that reconciliation is possible only with concerted efforts from both sides, the oppressors and the oppressed (Potgieter, 2019, p. 27.).
- Inequality is ranked as the greatest cause of division, with race and political parties coming second and third respectively (Potgieter, 2019, p. 44.).
- 7 in 10 respondents believe residential areas are segregated due to the lasting effects of apartheid. More than 70% feel the disparity in land holdings between the blacks and the whites is also a consequence of apartheid (Potgieter, 2019, p. 48.).
- Only 3 in 10 South Africans trust members of other races. 66.7% South Africans think reconciliation is impossible if race remains unaddressed. Only 4 in 10 believe race relations have improved since 1994 (Potgieter, 2019, p. 53.).
CONCLUSION:
The South African TRC, though revolutionary in many aspects, especially in its power to grants amnesty, fell short of fulfilling its absolute potential. Nonetheless, the ideas of restorative justice, reconciliation, and forgiveness have played a major role in the rapid advancement of South Africa. Such a smooth, bloodless transition to democracy would not have been possible without these principles. And, even if people today still believe in the concept of apartheid, the TRC has made sure that no one is unaware of its horrors (Chapman and Ball, 2001, p. 34.). It brought to light the plight of the victims, gave them a platform to voice their grievances, and helped facilitate reconciliation among the races.
But any country looking to model its truth commission after the South African TRC should be aware that a TRC is not the definitive solution to all its problems. A TRC has to be supplemented with honest political bodies, educated citizens, and various other policies to create trust and facilitate reconciliation among the concerned groups. The TRC, without doubt, though, is a good model on which future truth commissions can be based. Though, to make truth commissions more effective, certain other steps can also be taken (Chapman and Ball, 2001, p. 42.):
- The mandate should specify the exact work of the commission. The findings of the commission should also be based on legal and scientific evidence, so that it can be unwavering in the face of criticism.
- Commissioners should play an advisory role. They should also be few in number so that quicker consensus on matters can be achieved.
- Professional, skilled staff.
- The commission should go after institutions of oppression and work towards dismantling them rather than focusing only on particular individuals (Mamdani, 2002, p. 33.).
- The findings of the commission should be able to affect debates, should be able to play a role in shaping the future.
While South Africa, as a nation, definitely has scope for improvement, the TRC and constitution have certainly provided it with a strong foundation on which it can build a diverse yet united society.
