REPARATIONS AND REHABILITATION
The Truth and Reconciliation Commission (TRC) was established to, amongst other goals, facilitate the ‘rehabilitation and the restoration of the human and civil dignity of victims of violations of human rights’. Primarily through the public hearings undertaken by the Human Rights Violations Committee, the Commission intended to restore voice and dignity to those previously marginalized and in the process confer public acknowledgement, widely regarded as a key contributor to the healing process.
At the time, the TRC was the first restorative justice process of its kind to conduct public hearings and provide space for survivors to tell their stories in their own words. These hearings served an important symbolic function in a country where the system of governance had been premised on the denial and silencing of, in particular, black voices.
Those who testified during the public hearings were carefully selected to provide a cross-section of violations and therefore represent the experiences of a larger victim constituency. In some cases the selection process distorted the realities of particular communities’ experiences. Most notably, it presented a deliberately skewed racial picture where whites were over represented as victims in order to ‘include’ them in the TRC’s work. In many instances, high profile cases, were also favoured above other matters.
The TRC sought to address the issue of marginalized voices amongst the broader framework of victims, and was conscious of gendered distortions in the processes and presentation of its work. Although the bulk of those who testified before the Commission were women, in most cases their testimony focused on the experiences of their husbands, sons and fathers. Women as victims represented only a small number of the cases presented. In an inadequate effort to counter this distortion, the Commission instituted a two-day public hearing in Johannesburg dedicated to recording women’s experience of gross human rights violations. In addition, the TRC convened four special hearings on the experience of children and juveniles, in Cape Town, Johannesburg, Durban and Pietersburg.
The objective of broad victim inclusion in the workings of the TRC was undermined from its inception by its legal mandate that limited the definition of victim to those who had suffered ‘gross human rights violations’; narrowly defined as acts resulting in death, torture, or other severe mistreatment. Although the TRC Final Report sketches a brief history of apartheid itself, nowhere in the victims hearings – the public face of the TRC – were the stories told of the everyday violence of the apartheid system; the experiences of forced removals, systematic discrimination, forced labour, targeted impoverishment and the institutional and psychological violence that was integral to the apartheid system. This omission, has contributed significantly to a conception that there is a hierarchy of ‘victim-hood’, where physical violence was regarded as the most important type of violation. This in turn has obscured the full impact of the injuries experienced in a broader context of lifelong oppression in which these individual violations occurred. The focus on individual violations also detracted from developing a more profound understanding of the expansive range of relationships between exploiter and exploited that characterized the apartheid system.
The TRC’s focus on individual gross human rights violations has enabled South Africa to forge a common condemnation of the violent excesses of apartheid. Regrettably, it did not adequately demonstrate how these excesses were connected to the institutional and structural realities of the apartheid system itself. This has contributed to an ongoing and widespread denial by beneficiaries of apartheid, primarily the minority white population, to take responsibility for its complicity in these violations (albeit indirect in most instances). This, in turn has contributed to an unwillingness to take responsibility for or contribute to any program for reparations or material compensation. The import of this situation for the national reconciliation agenda is incalculable.
REPERATIONS AND THE TRC's RECOMMENDATIONS
The TRC’s final report noted that reconciliation was not possible without reparations.
The obligation incumbent upon states to provide individual reparations for victims of human rights violations is well established in international law. In South Africa, the case for formal reparations was further detailed in the Constitutional Court’s Azapo judgment which upheld the validity of the TRC’s amnesty process, but linked it to the need for a comprehensive reparations program for victims.
The TRC’s Reparations and Rehabilitation Committee (RRC), was tasked with designing just such a program. The RRC was mandated to identify victims and seek input regarding what types of reparations should be adopted and implemented. The extent to which this process was adequately inclusive and participatory remains moot and the RRC was subject to considerable criticism from some civil society organizations, including victim groups.
The RRC’s recommendations were detailed first in the Commission’s Final Report published in 1998 and then summarized and augmented in the codicil of the additional volumes of the Report released in 2003. Unlike the Amnesty Committee, however, which had legal powers of enforcement, the RRC could only recommend a reparations program to government with no authority to ensure its implementation.
In presenting its recommendations, the RRC acknowledged that whilst no policy can fully restore to victims what has been lost, the more comprehensive and wide-ranging the reparations program adopted, the more adequately the needs of victims can be met and their dignity restored. In light of this, the recommendations proposed were based on the five international norms of;
- Restoration of dignity, and;
- Reassurance of non-repetition.
These principles were incorporated into RRC policy recommendations that sought to provide reparation and rehabilitation options at the individual, community and national level. They also included recommendations on monetary compensation, the provision of social and medical services, symbolic reparations and memorialization, institutional transformation, and community based reparations (which included health care, mental health care, education and housing). The RRC recommendations covered five key areas, namely:
The RRC recommended that the policy implementation be: development centred, simple, efficient and fair, culturally appropriate, and community-based. Actions taken should encourage capacity development, as well as promoting the longer term objectives of healing and reconciliation.
Whilst the range of reparations proposed was comprehensive, the recommendations for individual financial compensation were fairly conservative. Indeed, the Committee proposed that recognized victims be granted a sum of approximately $3000USD per year over a six-year period. Considering that this amount was intended to serve not just as compensation but also contribute to a better quality of life for survivors, the amount is surprisingly small.
Further key recommendations included the restructuring of the inherited apartheid debt to free up resources for a concentrated development agenda, the establishment of a business reparations fund, and a once of wealth tax to be collected from former beneficiaries.
THE LONG DELAY
Although these recommendations were detailed in the volumes of the Final Report released in 1998, government insisted that no reparations policy could be adopted until the final volumes of the report were completed in 2003. In the interim, and at the instigation of the RRC and victim groups such as Khulumani Support Group, government eventually paid out Urgent Interim Reparations to those found to be in need of immediate intervention. This money however was minimal and was made available to only some victims. Approximately R44million was paid out to 14,000 victims and family members. The seven and a half year delay from the beginning of the TRC process in 1996 to the completion of the additional volumes in 2003 in effect meant that victims, many of them elderly, were forced to stand by and wait while perpetrators benefited from the TRC’s amnesty process with immediate effect.
The delays lead to increased friction between NGOs lobbying for implementation and a government who appeared reluctant to follow through on their end of the deal. During this interim period, the government also began to conflate reparations with a developmental discourse – arguing that the provision of socio-economic services and infrastructure delivery to the poor constituted reparations. Arguably, individual reparations are undermined if they do not take place in a context of wider programs for social justice and national rehabilitation, however these larger programs do not directly target individual victims or address personal needs, nor do they fulfill the obligations for reparation incumbent in international law or the Constitutional Court’s Azapo judgment.
As civil society and victim support groups increased pressure for a comprehensive reparations policy to be implemented in a timely manner, Government’s tone shifted to one of shaming those who demanded the minimal promises of justice inherent in the TRC process, accusing them of denigrating the noble objectives of the liberation struggle by pursuing monetary gain. As the primary objective of a reparations policy is to repair and restore to the extent possible, the value of a reparations program is not only in the details of the this policy but also of the process which informs this policy. The dismissive attitude of the government towards survivors did much damage to the potential healing impact of the TRC process. It also smacked of hypocrisy, as the very same government had facilitated special pensions for many of those who had participated in the struggle.
THE SOUTH AFRICAN GOVERNMENT'S PROPOSED REPARATIONS PROGRAM
In 2003 the final volumes of the TRC report were completed and President Mbeki presented to Parliament government’s proposed reparations program. In short, the policy reflected neither the recommendations of the TRC nor the voices of survivors groups and civil society. With regards to individual compensation it was proposed that approximately $4000 USD be given to survivors in the form of a once off payment. This amounted to less than a quarter the already minimal amount recommended by the RRC, estimated by the Centre for the Study of Violence and Reconciliation (CSVR) in 2003 as 0.02% of the annual budget. The use of a standard amount for all victims and a single payment operation meant that the individual needs of victims could not be taken into consideration; whether these needs be related to disability, loss of a breadwinner, medical assistance or any other specific need.
Moreover, the proposed compensation would only be made available to a portion of potentially eligible victims. The approximately 22,000 survivors identified through the work of the TRC did not reflect the reality of past violations. Large numbers of survivors did not come forward to the TRC for a variety of reasons – including a lack of access, ongoing security concerns, a lack of trust in the process, ignorance of the TRC or its deadlines for application and political interference. When the work of the Human Rights Violations Committee closed and it became apparent that the lists of identified victims did not reflect reality, civil society began to lobby for the list to be re-evaluated. This request was denied and as a result individual reparations have been paid to only a section of an already limited grouping defined as ‘victims’.
In terms of financing the reparations policy, the government declined to hold individual and corporate beneficiaries to account, choosing instead to rely wholly on ‘voluntary’ contributions to the State Presidents Fund. Not surprisingly, these have been limited. The RRC’s recommendation for a once-off wealth tax that could contribute to redistribution was dismissed, as were recommendation to restructure the inherited apartheid debt. Equally disappointing was the refusal to establish a business reparations fund or to hold business in any way accountable for their role in benefiting, financing and prolonging the lifespan of the apartheid regime. The responsibility of business was well documented in the Final Report, in which the Commission concluded that there was a strong legal case against these institutions in terms of international law.
Pursuant to these findings, victims groups filed a lawsuit against key international companies in a New York Court, utilizing the centuries old Alien Torts Act. Frustrated at the unwillingness of government to hold business to account, the groups sought compensation from those who had invested in and profited from the discriminatory policies of the apartheid era; including job reservation, wage discrimination and forced labor. Several South African companies with an asset base in the United States were also targeted.
The South African Government’s response to the lawsuit was emblematic of their handling of reparations issue more generally. Penuel Maduna, the former Minister of Justice filed an affidavit with the court requesting that the case be dismissed on grounds that it interfered with South Africa’s own reconciliation process and state sovereignty. The action only served to confirm the perception that South Africa’s reparations policy and the rhetoric accompanying it have been more concerned with reassuring the business community and past beneficiaries than it was with securing justice for victims of the past. Further actions by the South African government in support of the companies concerned is expected during the appeal process.
The reparations process over the past decade has been characterized by some as a missed opportunity for targeted poverty alleviation and individual reconciliation. International experience is testament to the fact that victims of past violence are unlikely to forgive or find a sense of closure as long as they continue to suffer the consequences of the injury. In South Africa this would require addressing both individual needs as well as the broader socio-economic context. Research from one of the principle NGOs engaged in TRC-related processes (CSVR) finds that the R30,000 individual grants that have been paid out to just over 16,000 recognised victims have not had any significant impact on the ability of survivors to overcome the consequences of their injuries or create opportunities for a better life.
There has been some movement in recent years towards providing services and benefits through the programs of various government departments, however to date these have been ill-coordinated and without a monitoring function in place it is impossible to assess actual impact. Promises have been made regarding the establishment of a post-TRC body to oversee the implementation and monitoring of the full range of recommendations but this has yet to materialize. The creation of such a unit would go some ways to reviving the issue of reparations and ensuring that the work of the TRC and the needs of victims do not merely fade from the national agenda.