Transitional Justice, the ‘Truth and Reconciliation Commission’ (1995-1998) and the shaping of the ‘new’ South Africa

Tuesday 06th, May 2014 / 11:31 Written by

 

By Rafael Verbuyst

When Nelson Mandela created a milestone piece of post-apartheid legislation by officially mandating the establishment of a truth commission to investigate human rights abuses during apartheid in 1995, he wasn’t necessarily creating a novel vessel of transitional justice.1 Indeed, there had been fourteen truth commissions elsewhere in the world before the South African Truth and Reconciliation Commission (TRC).2 Yet, as this essay will show, South Africa approached and implemented the idea of a truth commission in its own way. At the same time, South African society was changed intensively by the TRC. The TRC will be examined as an appropriated immaterial type of judicial technology to understand this mutual influence.3 More specifically, the Social Construction of Technology (SCOT) theory will be used to analyze this dialectical relationship between technology and society. SCOT holds that not only does technology transform society (as claimed by the technological determinism line of thinking), society also transforms technology and people can act as agents of change.4 According to SCOT, technology should be viewed within the societal context which gives its meaning. SCOT is ideal to understand both the genesis and the impact of the TRC in South Africa. The first part of this essay will examine how and why South Africa appropriated the concept of truth commissions. The second section will then proceed by briefly discussing the impact of the TRC on South African society.

The genesis of the South African TRC: amnesty, Ubuntu and the ‘negotiated revolution’

A thruth commission may have any or all of the following five basic aims: to discover, clarify, and formally acknowledge past abuses; to respond to specific needs of victims; to contribute to justice and accountability; to outline institutional responsibility and recommend reforms; and to promote reconciliation and reduce conflict over the past. 5

As mentioned before, South Africa was not the first to set up a truth commission as a means of transitional justice. Even though the abovementioned definition highlights some basic elements of a truth commission, Paul van Zyl rightly notes that the South African transition required a “more creative approach to deal with the past”.6 Creativity and appropriation was required because of the situation at the culmination of the struggle against apartheid. African National Congress (ANC) forces were in a stalemate against the army and if South Africans of all races and backgrounds were to live together after the ANC took over power, some form of justice had to be introduced without resorting to revenge or civil war.7 Nuremberg-type trials were not a viable option because the case could be made that virtually all whites were guilty of participating in apartheid and because it could alienate the white population of South Africa.8

Talks between the ANC and the ruling National Party (NP) ensued and resulted in the “negotiated revolution”.9 This refers mainly to the topic of amnesty which dominated the talks since 1992.10 The NP insisted on blanket amnesty as in Chile whereas the ANC pursued an exchange of truth for possible amnesty.11 Ultimately, it was agreed in 1993 that individual amnesty would be granted if the crimes involved were “acts, omissions and offences associated with political objectives”.12 This idea was subsequently linked with the establishment of a truth commission where individual amnesty would be granted if the individual in question would appear at a public hearing where they would disclose all information required.13 It should be stressed that this exchange of truth for amnesty is probably the TRC’s most unique and innovative feature.14

Former TRC chairperson Archbishop Emeritus Desmond Tutu, © Welsh Government / Llywodraeth Cymru

TRC chairperson Archbishop Emeritus Desmond Tutu, © Welsh Government / Llywodraeth Cymru

The South African “third way” was made even more exceptional and suitable by linking the amnesty solution to Ubuntu philosophy.15 As TRC chairperson Archbishop Emeritus Desmond Tutu points out, describing/translating Ubuntu is not easy.16 Tutu describes Ubuntu as the humanitarian notion of the connectivity and mutual influence of all humans.17 Because according to Ubuntu someone becomes a human only through other humans, attacking another human being also damages the self. Reconciliation and forgiveness are therefore the only solutions to restore the humanity of both victim and perpetrator according to this “traditional African jurisprudence”.18 Ubuntu has clear religious foundations.19 Indeed, South Africa is a very religious country and as Ebrahim Moosa points out, “[i]n order to understand the moral language of the TRC [...], it would be [...] instructive to get a sense of the moral language that prevailed in South Africa prior to this event.”20 The TRC was subsequently not a secular institution because it was considered more suitable to the South African context. For example, Tutu insisted on starting off and closing victim hearings with a prayer and hearings would often be conducted in churches.21 Furthermore, most TRC commissioners were staunch churchgoers and four of them were priests.22 Michael Onyebuchi Eze points out how Ubuntu became widespread and even commercialized during the political transition.23 According to Eze, Ubuntu was sold to the public because it was portrayed, not entirely false, as an African solution stemming from pre-colonial times and befitting the political context of the day.24 But one should indeed never forget that, as Graeme Simpson points out, “[g]eneralized claims that victims are willing to forgive perpetrators who confess, or that they are merely seeking acknowledgement and symbolic reparation, are no more reliable than similarly broad claims that victims need or demand punitive justice.”25 After all, ordinary South Africans were not consulted during the legislative drafting process and some of them did not want the perpetrators to receive amnesty under any conditions.26 Ubuntu justice should thus not be seen as a logical outcome of the political negations but more as a concept that was used to convince South Africans to forgive and reconcile instead of retaliate.

Lastly, it should be noted that the TRC differed from previous truth commissions in other ways. It was the first truth commission with a witness protection program and with such strong powers of subpoena, search and seizure.27 It was definitely the largest truth commissions ever since in terms of resources, staff and budget.28 The TRC was also the first to conduct institutional hearings and special inquiries into persons of interest during apartheid.29 The TRC was thus to emerge as a creatively appropriated vessel of transitional justice which came into being during the specific context of the negotiated revolution. As the following section will point out, the TRC will have both predictable and less predictable influences on South African society.

The TRC as the foundation of the ‘rainbow nation’?

That the TRC was going to have a tremendous influence on South African society was not hard to predict and it was in many ways the goal of the endeavor. The TRC has indeed been described as a tool to shape the diversity-celebrating ‘rainbownation’ and to legitimize the post-apartheid state.30 In terms of its legacy, the TRC report states that “South Africans will need to continue to work towards unity and reconciliation long after the closure of the Commission”.31 The South African-based Institute for Justice and Reconciliation (IJR) was created in 2000 to specifically further this legacy of the TRC.32 Among other activities, IJR releases a ‘Reconciliation Barometer’ every year to examine the extent to which South Africans have “reconciled” since the democratic transition of 1994.33

In academia and popular culture, the TRC has had an equally big impact and sparked a series of debates within South Africa.34 For example, historians continue to debate whether the TRC intended to write the history of the country and whether reconciliation should be on the agenda when practicing their trade.35 Another good example is the attention which the victim-hearings of the TRC have gotten in academic publications.36 One of the reasons that the commission would have such an impact certainly has to do with the immense media coverage it enjoyed by South African radio stations, television networks and newspapers during its work.37 After its completion, the TRC did not leave the media domain and was picked up by writers (the most famous example is probably Antjie Krog’s Country of my skull) and film directors (see for example Tom Hooper’s Red Dust).38

However, in a more negative and perhaps unexpected way, the TRC left a bitter legacy as well. The reparations debate and the legacy of the TRC archives are good illustrations. One of the branches of the TRC, the Reparation and Rehabilitation Committee, was mandated to recommend a reparations program.39 However, only certain types of victims were selected by the TRC, leaving socio-economic victims of apartheid largely outside of its scope.40 Subsequently, organizations such as the Western Cape Action Tours project stress how the TRC failed to help those still affected by apartheid’s economic legacy.41 Furthermore, perhaps because the TRC accused the ANC of committing human rights abuses during the struggle, most of the recommendations were ignored and never put into practice.42 The lack of reparations thus remains a bitter legacy for the victims and movements such as the Khulumani Support Group, which was set up in response to the TRC, still fight the government for reparations.43

When it comes to the legacy of the TRC archives, a similar impact can be discerned. Even though the TRC archives were to be transferred to the National Archives in Pretoria and made public, the bulk of archival material remains unprocessed or off-limits.44 The South African History Archive (SAHA) is working hard to gain access through legal and political channels.45 However, as a previous director of the institute notes, perhaps the closing of the archives is not a matter of poor administration but a deliberate attempt to close the doors on the past and let ‘bygones be bygones’.46 The above thus clearly illustrates how the TRC shaped and continues to shape South African society in both positive and negative ways.

Conclusion: the South African TRC as an example of appropriated transitional justice

This short essay has hopefully illustrated how an African society is very much possible of drastically changing how we think about a certain piece of technology by creatively appropriating and designing it to serve local needs and expectations.47 The unique approach to amnesty is a striking example. Even though perhaps there is no standard type of truth commission and the concept logically requires appropriation to local contexts, a comprehensive discussion on truth commissions is unthinkable without mentioning the TRC.48 One could even argue that this essay dispels a widely held view that African societies are lacking innovation by showing how South Africa innovated the concept of truth commissions.49 Indeed, some maintain that the TRC and its form of “restorative justice” offer a suitable alternative to criminal justice.50 At the same time, the essay pointed out how the TRC was created within the context of the power dynamics of the negotiated revolution and that it should not be seen as an invention of ‘the people’. Nevertheless, the TRC shaped, and continues to shape, South African society as a whole. Not only should the TRC thus be viewed as an appropriated and socially constructed piece of judicial technology, it should equally be considered as a fundamental building block of post-apartheid South Africa.

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BIBLIOGRAPHY

Adam, Heribert and Kogila Moodley. The negotiated revolution: society and politics in post-apartheid South Africa. Cape Town: J. Ball Publishers, 1993.

Austen, Ralph and Headrick Daniel. “The Role of Technology in the African past.” African Studies Review 26 (3/4), 1983, 163-184.

Eze, Michael Onyebuchi. Intellectual History in Contemporary South Africa. New York: Palgrave Macmillan, 2010.

Gewald, Jan-Bart, André Leliveld and Iva Peša. “Introduction: Transforming Innovations in Africa: Explorative studies on appropriation in African societies.” In Jan-Bart Gewald, André Leliveld and Iva Peša (eds.). Transforming Innovations in Africa: Explorative studies on appropriation in African societies (Leiden: Brill, 2012), 1-16.

Hayner, Priscilla B. “Same species, different animal: how South Africa compares to Truth Commissions worldwide.” In Charles Villa-Vicencio and Wilhelm Verwoerd (eds.). Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa (Cape Town: University of Cape Town Press, 2000), 32-41.

Hayner, Priscilla B. Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions. New York: Routledge, 2011.

Krog, Antjie. Country Of My Skull. London: Random House, 1998.

Meiring, Piet. “The baruti versus the lawyers: the role of religion in the TRC process.” In Charles Villa-Vicencio and Wilhelm Verwoerd (eds.), Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa (Cape Town: University of Cape Town Press, 2000), 123-133.

Moosa, Ebrahim. “Truth and Reconciliation as performance: specters of Eucharistic redemption.” In Charles Villa-Vicencio and Wilhelm Verwoerd (eds.). Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa (Cape Town: University of Cape Town Press, 2000), 113-122.

Simpson, Graeme. “’Tell no lies, no easy victories’: A Brief Evaluation of South Africa’s Truth and Reconciliation Commission.” In Deborah Posel and Graeme Simpson (eds.). Commissioning the past: understanding South Africa’s Truth and Reconciliation Commission (Johannesburg: Witwatersrand University Press, 2002), 220-251.

Tutu, Desmond. No future without forgiveness. New York: Doubleday, 1999.

Verbuyst, Rafael. “History, historians and the South African Truth and Reconciliation Commission.” New Contree 66 (July), 2013, 1-26.

Verdoolaege, Annelies. “The debate on truth and reconciliation: A survey of literature on the South African Truth and Reconciliation Commission.” Journal of Language and Politics 5 (1), 2006, 15–35.

Verdoolaege, Annelies. Reconciliation Discourse: The Case of the Truth and Reconciliation Commission. Amsterdam: John Benjamins Publishing, 2008.

Wilson, Richard. The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State. Cambridge: Cambridge University Press, 2001.

Van Zyl, Paul. “Dilemmas of Transitional Justice: The Case of South Africa’s Truth and Reconciliation Commission.” Journal of International Affairs 52 (2), 1999, 647-667.

Sources:

Constitution of the Republic of South Africa Act, No. 200 of 1993, Section, 251.

Promotion of National Unity and Reconciliation Act, No. 34 of 1995.

Red Dust. Dir. Tom Hooper. British Broadcasting Company, 2004. Film.

Truth and Reconciliation Commission of South Africa. Report. 1998 [volume 1].

http://truth.wwl.wits.ac.za/cat_descr.php?cat=1, accessed 16.02.2014.

http://www.ijr.org.za/about-us.php, accessed 16.02.2014.

http://www.ijr.org.za/publications/recbar2012.php, accessed 16.02.2014.

http://www.khulumani.net/, accessed 16.02.2014.

http://www.saha.org.za/, accessed 16.02.2014.

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This paper has previously been presented at the African Studies Centre Leiden (ASC) beginning this year and was the outcome of the seminar “Theories and the Empirical in African Studies”.

10344970_10152128960691482_217760965_nRafael Verbuyst is a research master student in African Studies at the African Studies Centre (Leiden). He has a bachelor degree in History from Ghent University (Belgium). His research interests include a way range of topics concerning contemporary South Africa, with a focus on the interplay between past and present in the context of reparation politics and social movements.

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  1. Promotion of National Unity and Reconciliation Act, No. 34 of 1995. ‘Apartheid’ was the term used to refer to the period under investigation from roughly 1960 to 1994.
  2. Priscilla B. Hayner, Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions (New York: Taylor & Francis, 2011), XI.
  3. Jan-Bart Gewald, André Leliveld and Iva Peša, “Introduction: Transforming Innovations in Africa: Explorative studies on appropriation in African societies,” in Jan-Bart Gewald, André Leliveld and Iva Peša (eds.),Transforming Innovations in Africa: Explorative studies on appropriation in African societies (Leiden: Brill, 2012), 4, 5.
  4. Ralph Austen and Daniel Headrick, “The Role of Technology in the African past,” African Studies Review 26 (3/4), 1983, 163. Gewald et al., “Introduction…”, 6.
  5. Hayner, Unspeakable Truths…, 25.
  6. Paul  van  Zyl,  “Dilemmas  of Transitional  Justice:  The  Case  of South  Africa’s  Truth and  Reconciliation Commission,” Journal of International Affairs 52 (2), 1999, 647.
  7. Ibid., 649.
  8. Hayner, Unspeakable Truths…, 27.
  9. Heribert Adam and Kogila Moodley, The negotiated revolution: society and politics in post-apartheid South Africa, Cape Town: J. Ball Publishers, 1993.
  10. Truth and Reconciliation Commission of South Africa, Report, 1998 (volume 1), 52.
  11. Ibid.
  12. Constitution of the Republic of South Africa Act, No. 200 of 1993, Section, 251.
  13. Hayner, Unspeakable Truths…, 27-29.
  14. Priscilla B. Hayner, “Same species, different animal: how South Africa compares to Truth Commissions worldwide,” in Charles Villa-Vicencio and Wilhelm Verwoerd (eds.), Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa (Cape Town: University of Cape Town Press, 2000), 33. Truth and Reconciliation Commission of South Africa, Report, 54.
  15. van Zyl, “Dilemmas of Transitional Justice…”, 648.
  16. Desmond Tutu, No future without forgiveness (New York: Doubleday,1999), 31.
  17. Ibid.
  18. Tutu, No future without forgiveness, 54.
  19. Ebrahim Moosa, “Truth and Reconciliation as performance: specters of Eucharistic redemption,” in Charles Villa-Vicencio and Wilhelm Verwoerd (eds.), Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa (Cape Town: University of Cape Town Press, 2000), 119.
  20. Ibid. 115. Piet Meiring, “The baruti versus the lawyers: the role of religion in the TRC process,” in Charles Villa-Vicencio and Wilhelm Verwoerd (eds.), Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa (Cape Town: University of Cape Town Press, 2000), 125.
  21. Ibid., 123.
  22. Ibid., 124.
  23. Michael Onyebuchi Eze, Intellectual History in Contemporary South Africa (New York: Palgrave Macmillan,
    2010), 7, 103-109.
  24. Ibid., 8.
  25. Graeme  Simpson,  “’Tell  no  lies,  no  easy  victories’:  A  Brief  Evaluation  of  South  Africa’s  Truth  and Reconciliation Commission,” in Deborah Posel and Graeme Simpson (eds.), Commissioning the past: understanding South Africa’s Truth and Reconciliation Commission (Johannesburg: Witwatersrand University Press, 2002), 239.
  26. http://truth.wwl.wits.ac.za/cat_descr.php?cat=1, accessed 16.02.2014.
  27. Hayner, Unspeakable Truths…, 28.
  28. Truth and Reconciliation Commission of South Africa, Report, 55.
  29. Ibid., 54. Hayner, Unspeakable Truths…, 28.
  30. Richard Wilson, The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State (Cambridge: Cambridge University Press, 2001).
  31. Truth and Reconciliation Commission of South Africa, Report, 2, 49.
  32. http://www.ijr.org.za/about-us.php accessed 16.02.2014.
  33. http://www.ijr.org.za/publications/recbar2012.php accessed 16.02.2014.
  34. See for example Annelies Verdoolaege, “The debate on truth and reconciliation: A survey of literature on the South African Truth and Reconciliation Commission,” Journal of Language and Politics 5 (1), 2006, 15–35.
  35. Rafael Verbuyst, “History, historians and the South African Truth and Reconciliation Commission,” New Contree 66 (July), 2013, 22-24.
  36. See for example Annelies Verdoolaege, Reconciliation Discourse: The Case of the Truth and Reconciliation Commission (Amsterdam: John Benjamins Publishing, 2008).
  37. Hayner, Unspeakable Truths…, 28.
  38. Antjie Krog, Country Of My Skull (London: Random House, 1998). Red Dust, Dir. Tom Hooper, British Broadcasting Company, 2004. Film.
  39. Hayner, Unspeakable Truths…, 28.
  40. Verbuyst, “History, historians…”, 14.
  41. Verbuyst, “History, historians…”, 16.
  42. Hayner, Unspeakable Truths…, 31.
  43. http://www.khulumani.net/, accessed 16.02.2014.
  44. Verbuyst, “History, historians…”, 18.
  45. http://www.saha.org.za/, accessed 16.02.2014.
  46. Verbuyst, “History, historians…”, 19.
  47. Gewald et al., “Introduction…”,  2, 4.
  48. Hayner, “Same species, different animal…”, 38.
  49. Gewald et al., “Introduction…”, 3-4, 13.
  50. Simpson, “’Tell no lies, no easy victories’…”, 230. See also van Zyl, “Dilemmas of Transitional Justice…”, 667.
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