At the time of its establishment, South Africa’s TRC was a unique response to the apparently contradictory imperatives of securing peace and justice faced by many post-conflict states. In the face of a constitutional obligation to provide amnesty, the TRC was intended to facilitate some measure of restorative justice to those whose rights to retributive justice had been suspended.
Assessing the impact of the TRC should necessarily take into account the broader political context of South Africa’s unique political transition. The Commission was a product, (albeit indirectly) of the negotiated settlement; it was one of several mechanisms employed during the transition process, it was subjected to the political tensions and agendas of this period and, in varying degrees, has and continues to be held hostage by a lack of political resolve to follow through with the promises that underpinned its initial establishment.
THE INSTITUTIONAL WORK OF THE TRC - STRENGTHS AND LIMITATIONS
Unlike any truth commission before it, South Africa’s TRC was premised on principles of public inclusion, epitomized in the transparent and public selection of its commissioners and the international coverage of victims’ hearings. Through these hearings and the intense media coverage, white South Africa was exposed to the individual atrocities that its political leadership had vehemently denied responsibility for, and predominantly black victims were conferred the acknowledgement previously denied them by an apartheid state that had actively sought to silence them. As such, the Commission played an important role in drawing a line between past and present, in terms of what is deemed as acceptable behaviour.
Intended to serve as only one contributing factor to reconciliation and transformation however, the TRC was burdened from the start by unrealistic expectations and competing priorities. In particular, the Commission was encumbered with the dual agenda of being a victim-centred restorative justice mechanism, whilst simultaneously pursuing an agenda for nation building and unity. The requirements of nation building soon eclipsed all others and shaped the way in which the Commission conducted its work, as well as the nature of the reconciliation agenda it sought to realize.
The public work of the TRC focused almost exclusively on the narrow relationship between political perpetrators on the one hand, and individual victims on the other. In doing so it deflected attention away from the structural aspects of apartheid, its institutional violence, as well as the system of exploitation through which the few benefited at the expense of the majority. The narrow focus on individual violations disassociated them from a historical context where they were merely an extreme manifestation of the everyday violence that characterized apartheid prejudice and bigotry. More importantly, it detached these acts of violence from the racially discriminatory system that engendered them, and focused the nation’s attention exclusively on the violent act itself rather than the factors that caused them. The result, as the TRC report itself acknowledged, has been that: ‘[T]his focus on the outrageous has drawn the nation’s attention away from the more commonplace violations. The result is that ordinary South Africans do not see themselves as represented by those the Commission defines as perpetrators.’
Whilst this approach succeeded in consolidating a common condemnation of the individual atrocities of apartheid it did considerably less in exposing the evil inherent in the system itself. As a result, a national survey conducted by the Institute for Justice and Reconciliation in 2004 found that ten years into the new democracy one in five whites would rather go back to apartheid than live in the new South Africa; and in a similar poll, less than a third of former beneficiaries today believe that they benefited from apartheid in the past or continue to benefit from it today. This denial of past responsibility has played itself out in resistance to any form of redress, whether it is individual reparations, affirmative action or the symbolic renaming of geographic locations. The TRC process has also dashed the hopes and expectations of many victims of apartheid. The extent to which the national reconciliation agenda has been promoted or even undermined by the TRC remains open to debate.
The one area where the TRC did attempt to tackle the broader structures of apartheid was through its institutional hearings. Exposing the role of institutions in perpetrating past violations and formulating recommendations for future reform is a key area where truth commissions can provide a powerful impetus for transformation. The potential for institutional change not only addresses root causes of conflict, but also serves as a form of reparations in that it is a reassurance of non-repetition to victims of past violations. The impact of the TRC’s work and recommendations regarding institutional transformation was, however, limited.
There are several reasons for this. There were, for example, only a handful of sector hearings convened and these were generally cursory examinations, not adequately researched, and lacking robust analyses that rarely interrogated the presentations of those who appeared before it. While providing some bases for engaging in matters relating to the structural and institutional relationships with the perpetration of human rights violations, much more might have been done in this regard. In addition, as the hearings were entirely voluntary, participation was low and contributions generally thin. This was particularly the case in the hearings on the legal sector where judges refused to come before the Commission, and the media hearings, where some Afrikaans medium newspapers allegedly threatened to fire any employee who made a submission to the Commission.
THE FINAL REPORT
The release of the first installments of the TRC Final Report in October 1998 was plagued by controversy from all sides. Immediately prior to its public release, Former President FW De Klerk sought a court order to have findings relating to him excised from the publication. The offending sections referred to a finding by the Commission that De Klerk had been an accessory after the fact to the bombing of Khotso House, headquarters of the South African Council of Churches, as well as Cosatu House. The Court ruled that the sections should be blacked out until it had had an opportunity to consider the case properly.
The ANC for its part objected to the TRC’s assertion that the political party was morally and politically responsible for human rights violations conducted in the course of the liberation struggle. It argued that the TRC was drawing a moral equivalent between the means used to further the liberation struggle and those used to further a system of racial oppression. When the court refused to block the public release of the Final Report, key leaders in the ANC, including its President and then Deputy President of the country Thabo Mbeki refused to attend the official launch of the report and its presentation to President Mandela.
The Freedom Front similarly boycotted the public ceremony, as did the IFP who had opposed the TRC process from the start. Whilst the IFP did not initially pursue legal action, it objected strongly to the finding that they had been responsible for fully 30 per cent of human rights violations ‘investigated’ by the Commission. The IFP did eventually embark on legal action with regards to some 37 entries in the final two volumes of the Final Report. These volumes were released in 2003 after reaching an out of court settlement in which the TRC agreed to remove or edit key sections relating to the IFP, as well as include an appendix in the Report detailing the IFP’s viewpoint concerning the TRC findings which they disagreed with . The TRC’s strongest condemnation however was rightly reserved for the apartheid state, which it found had sanctioned the use of torture, killing squads and innumerable atrocities both within South Africa and beyond its borders.
The fact that almost all key political actors of the past – with the exception of the UDF – took issue with the TRC’s findings was perhaps the best evidence that the Commission had conducted its work in an impartial and even-handed manner, despite ongoing charges of political bias by some throughout its tenure.
Beyond these key political findings, the Report also housed the TRC’s Recommendations. These included the recommendations of the Reparation and Rehabilitation Committee as well as broader issues of institutional transformation and the continuation of the TRC’s work. The sections pertaining to institutional transformation were however a disappointment. They gave the impression of having been written at the last minute and bore little or no relationship to policy and transformation processes already happening on the ground in the sectors they addressed. As a result many of the recommendations were effectively irrelevant by the time the Report was published and have been largely ignored by the various institutions.
Whatever the strengths and weaknesses of the Final Report its impact has been severely limited by its inaccessibility. At a cumbersome seven volumes in total, of which only the final two are available on the internet, the price for purchasing the series is beyond the reach of all but an elite few within South Africa. Government had announced plans early on to produce a popular version that would have contributed to public awareness and education, however this has yet to happen. The archives of the TRC remain equally inaccessible and the Commission’s historical findings, as well as its own history, have not been integrated consistently into the History curriculums of educational institutions. All of these issues are of serious concern as the TRC can have no sustained impact, and certainly no future impact, if it is not made readily available to the South African people.
BEYOND THE TRC
PROSPECTS FOR DEALING WITH UNFINISHED BUSINESS
Following the 1998 release of the Report the ANC government reiterated their intentions to prosecute those who did not seek amnesty when given the opportunity, in keeping with the legal agreement that underpinned the conditional amnesty process. Much like the issue of reparations however, government claimed that it could not embark on a prosecution strategy prior to the publication of the final volumes and the conclusion of amnesty proceedings in 2003. In the interim, persistent rumors have circulated of backroom discussions on a general amnesty. Although government continued to deny such a move was being considered, it did not rule out the possibility of a further conditional amnesty.
The TRC handed over more than eight hundred cases for further investigation and possible prosecution when it closed and in 2004 the National Prosecuting Authority established a special unit to investigate these cases and begin the process of prosecutions. Later that year Gideon Nieuwoudt, former police colonel, was arrested for the disappearance of the Pebco 3, marking the first post-TRC prosecutions. At the time, the NPA warned that this was a sign of things to come and that future high-profile cases would follow, including the possible prosecution of an apartheid-era general who was under investigation.
But the Nieuwoudt arrest sparked controversy over how post-TRC prosecutions would unfold. On the eve of the arrest of three former senior police officers allegedly involved in the poisoning of former South African Council of Churches Secretary General, Frank Chikane, the Government suspended further prosecutions and insisted the National Department of Public Prosecutions be given guidelines to balance the sensitivities of national reconciliation in its selection of cases. These guidelines were reportedly reviewed by Cabinet in June of 2005 and were recently leaked to the media in later 2005. They provide an option for the National Director of Public Prosecutions to provide an indemnity from prosecution on the basis of a full disclosure relating to the facts of the violation and further cooperation with any investigation and prosecution that might be required. Unlike the TRC process, such agreements will be made behind closed doors.
In the meantime, apart from the failed prosecution of Wouter Basson, the alleged mastermind of the South African Defence Force’s purported use of biochemical weapons against those deemed to be enemies of the state, two additional prosecutions have been carried out – another failed prosecution of former Ciskeian soldiers involved in the Bisho massacre, and the conviction of a former UDF activist involved in a group murder. To date, nothing further has happened, besides ongoing work by the National Prosecuting Authority’s Missing Persons Task Force, although the Department of Justice has recently developed a controversial draft prosecution policy intended to address unfinished business in this regard.
The absence of prosecutions and a political commitment to secure them has ensured a de facto amnesty for most perpetrators from the past conflict. The passage of time has lead to disappearing dockets and evidence, fading memories, the death of witnesses and indeed the death of perpetrators themselves who take the truth of atrocities to the grave and leave victims with neither truth nor justice. Such is the case with Gideon Nieuwoudt who died in 2005, taking with him crucial evidence relating to the disappearance of the Pebco 3, the Motherwell Bombing, the torture and death of Steve Biko and more.
Prosecutions are not the only area of unfinished business from the TRC. Recommendations relating to reparations, institutional transformation, ongoing truth-seeking and legal and administrative restitution are only some of the measures that are still underway or have yet to take place. In the second half of 2005, the government has eventually moved forward with plans to establish a post-TRC unit at the Department of Justice. It is hoped that this directorate will further the work of the TRC and monitor implementation of its recommendations.
In the final analysis it must be acknowledged that the TRC was a creative and unique response to the political challenges of the transition period. Whatever its limitations and weaknesses as an institution, the fulfillment of the historic promises which justified the compromises reflected in the TRC processes now resides in the hands of the government. It is they who must ensure that the TRC’s legacy does not become one of an institution that was utilized to consolidate a limited transition at the expense of past victims.
The TRC argued that reconciliation was only possible on a foundation of truth and acknowledgement. The amount of ‘truth’ uncovered was limited and, as such, the TRC could more accurately have been described as an acknowledgement commission in that it served the primary purpose of validating and acknowledging the stories of victims rather than offering new truth. If this interpretation is correct, the volumes of unfinished business in this regard present an ongoing and fundamental challenge to the national reconciliation agenda. In the words of Jose Zalaquett, a former Commissioner with Chilean Truth Commission; “Leaders should never forget that the lack of political pressure to put these issues on the agenda does not mean they are not boiling underground wanting to erupt. They will always come back to haunt you.”
Reconciliation was also interpreted as synonymous with forgiveness, and tremendous pressure was exerted on victims who came before the Commission to ‘forgive’. The emphasis on a discourse of reconciliation at the public hearings came at a cost of invalidating displays of ‘negative’ emotions. Some of these emotions – such as anger, anguish or resentment – are legitimate healing emotions for those who have suffered loss. Their dismissal in favour of forced forgiveness had the potential to do additional damage to victims by denying them the process of natural grieving and healing. There was no link between victim and perpetrator in the form of atonement – perpetrators were granted amnesty with no obligation to community service or contributing to reparations.
The concern with national reconciliation interspersed with a few public displays of individual reconciliation allowed the more crucial question of community reconciliation to fall through the cracks. The TRC failed to adequately address the site of the worst violence, that of the black communities during the 1990s when the fighting between the IFP (supported and resourced by the white government) and the ANC claimed more lives than the individual death toll perpetrated by the regime to that time. Today victims and perpetrators continue to live side by side in communities across KwaZulu-Natal and pockets of Gauteng. Where these communities have not initiated their own attempts at reconciliation, the divisions continue into the new dispensation, undermining attempts at development and reconstruction and perpetuating the cycle of poverty and violence.