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The Truth and Reconciliation Commission (TRC): Human Rights and State Transitions--The South Africa Model
October of 1992, the NP was trying to expand the amnesty to cover
members of its government. Over
ANC objections, the regime attempted to push through a special law
that would have given the president the power of indemnity.
Although it passed in the House of Assembly, the bill failed.
Not satisfied, de Klerk took the measure to the presidents
council, a parliamentary body designed to resolve conflicts over legislative
issues. The NP dominated here
and, as a result, the Further Indemnity Act was passed.
negotiations and an intense public relations campaign (see below), the
ANC indicated that it understood the need for a general amnesty for
some who may have been in a position to obstruct the transition process.
According to Keightleys analysis (1993) of the
struggle during the negotiations to define political offenses, the resulting
indemnity process was arbitrary and very confusing for the citizenry. This cast a pall over the negotiation process as many South Africans
were left feeling suspicious and angry.
As calls for some kind of commission of inquiry to investigate
government abuses mounted, the NP, along with other minority parties,
began a public relations campaign designed to cast aspersions on the
ANC and to force them into agreement over the Further Indemnity Act.
The attacks on the ANC focused on alleged abuses within its
camps and for abuses allegedly committed by some in high-ranking positions
within the ANC.
the ANCs credit, and led by Nelson Mandala, the ANC held two commissions
of its own to investigate those allegations.
While admitting some abuses took place, the ANC was careful
to point out that the abuses were not part of an official policy,
but rather isolated incidents. Additionally,
the ANC refused to allow the equation of abuses perpetrated by it
or its supporters with those of the apartheid regime.
The ANC argued that because it operated as a resistance movement,
or was engaged in a just war attempting to bring an end
to the crime of apartheid, abuses committed by its members could not
be equated with those of the apartheid state.
of the two ANC reports charged the first commission with bias because
two of the three members were part of the ANC.
The second, they argued, did not go far enough in unearthing
abuses within ANC camps and further charged that abuses are abuses and,
therefore, the ANC should not be able to skirt responsibility by hiding
behind the resistance label.
Independent observers praised the self evaluation of the ANC,
noting that it was one of the few times in modern history when ruling
powers allowed their organization and its actions to be so scrutinized.
Self evaluation, however was all the Commission was
designed to do.
The initial response of both major players--the ANC and the
NP--to protect their own, turned out to be a good indicator of the
obstacles to come as South Africa began its journey to reconciliation.
If it is the military which is the target of prosecutions,
then there exists the threat of a coup in order for military leaders
to protect themselves. Also,
if only the top leaders, those who gave the orders, are prosecuted,
then the junior officers, those who carried out the bloody orders,
will move into top military positions.
Thus, the future will be jeopardized by having such folks in
Typically, those who put this argument forward can be found
within the framework of supporters of the former authoritarian regimes,
the NP in South Africa, and the military in both Argentina and Chile,
for example. One striking example of this line of thinking was expressed in Margaret
Thatchers recent, stirring defense of Augusto Pinochet.
She argued that Britain should not allow him to be extradited
because he had been a friend to Britain during the Falklands/Malvinas
war. But, more importantly, the
former British Prime Minister argued, it is against common sense to
hold a head of state responsible for the abuses committed under his/her
rule. He was, she argued, a victim
of his ideology and was being sought because he had defeated communism
and not because of human rights abuses, although she did admit some
abuses had taken place under his rule.
The maximalists are those who think anything less than full
prosecution of all involved is unacceptable.
They argue that authoritarian regimes are at their
weakest during the transition, hence the transition.
During this period, the values and ideals that will set the course
for the new governing apparatuses are being set.
Therefore, granting indemnities may prove, in the long run, more
dangerous than dealing with the past.
According to Parker:
The resentment among victims who watched perpetrators escape
justice may result, and may foster, a notion of lawlessness, thus
endangering the unconsolidated democracy.
In ODonnell and Schmitters
study of transitions from authoritarian rule, they address the question
of how far to go in pursuit of justice while trying to consolidate
democracy. In particular, they
address the minimalist argument of an impending coup should a society
try to move too far or too fast this way:
Asmal, also arguing from this
stand point with regard to South Africa, outlines ten reasons why the
past cannot be buried. The arguments
can be condensed as follows. First,
without thoroughly understanding the past, future problems will be unexplainable
and thus roots of violence unexplored will perpetuate future violence,
including the acceptance of structural violence.
Second, supporters of the former regime can continue believing
the unchallenged myths of the regime; thus their neglect of history
will breed resentment and potential attempts at revenge.
Third, there is a need for a society that emerges from such an
authoritarian regime to have an outlet for its emotion.
This outlet should be based on truth and justice, with justice
not taking a backseat to the consolidation of democracy because a stable
democracy is not built by granting concessions to the military
on issues pertaining to its violent intrusion into civilian life.
takes the argument further when suggesting that not only may criminal
punishment be effective insurance against future repression .
. . by demonstrating that no sector is above the law and thereby
fostering respect for democratic institutions, she also
suggests where governments may be reluctant to forego prosecutions due
to domestic concerns, international law and international pressure to
comply with that law may be the effective way to go about securing justice.
addition to Orentlicher, there are others who suggest that international
law requires the punishment of violators of various international human
rights treaties. (For a discussion
of this, please see Roht-Arriaza 1995, Weschler 1997 and Henkin 1989). Amnesty International and Human Rights Watch Follow in this line.
Both human rights organizations have issued policy statements
calling for complete justice in post-authoritarian societies.
Does amnesty at the expense of justice promote reconciliation?
Or will prosecutions threaten democracy by bringing back the
old guard? Both Neier and Hayner
question the correlation either way.
Thus far, there is no convincing evidence to support
Somewhere in between the minimalists and the maximalists are
the pragmatists--those who argue that the pursuit of truth and justice
must be tempered with recognition of the political reality of a given
society. The vast majority of
those writing on commissions of inquiry most comfortably find a home
here, where the focus is often on the nature of the transition.
If, as in the case of Nuremburg and Tokoyo, there is an unconditional
surrender of one government, bringing them to justice presents far fewer
problems than if the transition was one of negotiated settlement where
one regime agrees to step aside, but often only with guarantees of impunity.
Proponents of this school argue that the most one can hope for
is truth and, even then, sometimes a limited version of it. Here the case of justice becomes problematic as the threat of a recidivist
coup looms large. A leading advocate
for this approach is Zalaquett who argues that two considerations.
. . must be balancedthe ethical principles that ought to be pursued,
and actual political opportunities and constraints that ought to be
taken into account.
Additionally, he argues that according to the
rule of law the victims cannot hold a veto power or decide on the general
rules of society.
Thus, the overall stability of society prevails over
the needs of the victims.
Also advocating such an approach as well is Huntington who
offers guidelines for democratizers . . . dealing with authoritarian
He suggests that the nature of the transition is key
and that if the transition was a transformation or a transplacement
do not attempt to prosecute and, even when prosecuting,
such as in a replacement situation, do not go after the middle and lower-ranking
Huyse offers several alternatives
for dealing with the past which all conform to this approach: criminal
prosecution, but only when acceptable and not risky to society; lustration-the
barring of former regime officials from future office positions; amnesty,
and truth commissions. Which
to choose is dependent upon the particularities of a given society and
the nature of the transition.
Since Nuremburg and Tokyo, the
majority of commissions have opted for combinations of Huyses
alternatives with most pursuing limited truth, while generously granting
One possible variant for South
Africa was the Chilean model. The
Rettig Commission was set up only to investigate murders and disappearances.
It, therefore, did notinvestigate cases of torture, exile, forced
detention, or censorship. The
final report found that 2,279 people died for political reasons,
and of those, 95 percent of the murders were carried out by official
The Chilean Comision Nacional para la Verdad y Reconciliacion,
led by Jose Zalaquett, strongly rejected the publishing of the names
of the accused perpetrators in the report because the members of the
Commission felt that publicizing names without giving them a chance
to respond failed to provide them with due process.
Without being able to publish names and with only
being able to investigate a very limited scope of abuses, the Commission
operated under a very limited mandate.
Despite this, the Commission was able to conduct quite thorough
investigations. The report was praised by many in the human rights field.
Shortly after its release, however, several incidents
of violence, including an assassination of the opposition leader, brought
discussion of the report to a halt.
In Chile, there was the Pinochet factor.
In stepping aside, Chiles former military dictator, Augusto
Pinochet, ensured that he and his accomplices would never be brought
to justice. The settlement
which ushered Pinochet from power ensured that Pinochet would remain
de facto commander of the armed forces, and he and his cronies would
constitutionally retain enough power in the Senate, as life-senators,
to veto any attempts at true justice for the crimes committed during
his regime. As a result, in
Chile a minimum of truth was recovered, but no justice.
of the continuing work in Chile revolving around its past is carried
out by the National Corporation for Reparation and Reconciliation, whose
job it is to promote the recommendations of the Rettig Report and to
deal with the issue of financial reparations for the victims.
Cases left unresolved by the Report were to be followed up on
by the Corporation. While the
Corporation has been heralded as an excellent model for continuing
the work of the truth commission and providing a mechanism for implementation
of a commissions recommendations, the Chilean victims were
left without justice.
In contrast to Chile, Zalaquett
has argued Argentina went too far in trying to secure justice for the
abuses which occurred as part of its dirty war.
The military, after a humiliating defeat in the war against Britain
in the Malvinas/Falklands islands, was forced out of office.
The succeeding President, Alfonsin, attempted to both discover
the truth and to bring several military leaders to justice by abolishing
the militarys self amnesty law.
The Argentinian government set up the Comision Nacional para
la Desaparcion de Personas, CONADEP (the National Commission on the
Disappeared). As a result, several
military leaders were imprisoned. Zalaquett argued that abolishing the law forced the military into
a corner and, as a result, they felt vulnerable and less willing to
come forward with the truth about what had happened to the thousands
of disappeared in Argentina.
Argentinas next president, Carlos Menem, pardoned
those in prison and stopped any attempt to bring the military to justice,
arguing that this was best, given Argentinas fragile democracy.
Thus, getting the truth in Argentina has been almost impossible.
The Mothers of the Plaza de Mayo continue to march in search
of the truth about their loved ones, but thus far their efforts go unrewarded.
One military leader, General
Seilingo, did come forward on his own accord and shed some light on
the fate of the disappeared. He
described the flights, several per week, which flew out over the ocean,
from which drugged and naked detainees would be pushed to their death.
Shortly after his admission, he was arrested on business
related fraud charges.
The silence of the military and,
as a result, the lack of thorough investigations, have allowed those
so inclined in Argentinian society to be able to deny the allegations
of the victims. Additionally,
as illustrated by the Mothers of the Plaza de Mayo, the victims
families are left with little or no idea of the exact fate of their
loved ones. Some of the women
who were incarcerated had children while in custody before they were
presumably killed. The fate
of those born in captivity remains one of the most difficult
issues for the families of the victims.
As in Chile, reparations were to be paid to victims, but those
applying in Argentina had to produce documents indicating the dates
of detention of the victims. This has been almost impossible to secure for many of the victims
because of the militarys refusal to produce the necessary information.
The majority of Mothers of the Plaza de Mayo have refused reparations
and are demanding truth with some justice instead.
El Salvadors process of
coming to terms with its past was quite different because the international
community, in the form of the United Nations, sponsored, financed,
and staffed the truth commission for that country.
The El Salvadorian report included names of the alleged perpetrators
and the Commission on the Truth for El Salvador was empowered to remove
members of the military who were named in the report.
Civilians however, were not so threatened and the government
of El Salvador did not follow up by ensuring that those removed would
not be reinstated.
government went even further, and within five days of the reports
publication, the legislature passed a general amnesty.
The report was also critical of the military, paramilitary, intelligence
and security forces, and those who allowed the abuses or covered them
up, including the judiciary. The
commission also recommended the removal of supreme court justices because
they were considered to be corrupt and inefficient.
Strikingly, the report also criticized those that funded the
military, including the United States and business leaders in Miami.
have argued that El Salvadors Commission could have acted more
boldly with its recommendations and publishing of names because it
was an international commission. Conversely, since the Commission was not organic, this may have led
to the El Salvadorian governments reluctance to carry those
recommendations forward. Reparations
were to be given to victims and their families with the bulk of the
money coming from one percent of all foreign aid given to the country.
Thus far very few victims have seen any money.
The groundwork was laid during
the transition negotiations which provided, in the post-amble to the
interim constitution, for the establishment of the TRC.
The following provisions were contained therein: 1) the establishment
of the TRC; 2) a specific time limit for the TRC to consider cases from
1 March 1960 to 6 December 1993 (later extended to 11 May 1994); 3)
an amnesty for those involved in abuses, provided the abuses were politically
motivated, not personal in nature, proportional, and provided the perpetrator
came forward and confessed the deed(s). Only gross violations of human rights were covered by the agreement;
thus other human rights violations including detention without trial,
jailing of people for pass law offences, and forcible removal were excluded.
In addition to the TRC, three other committees were set up to carry out the mandate of the TRC. The first was the Human Rights Violations Committee (HRV) whose purpose was to investigate human rights abuses between 1960 and 1994. It was to use statements made to the TRC to find victims and then to refer the victims of gross human rights violations to the second committee, the Reparation and Rehabilitation (R&R) Committee, whose job it was to provide support for victims in an effort to restore the victims dignity. This committee was also assigned the task of formulating policy proposals and recommendations on how to promote the rehabilitation and healing of the survivors, their families, and the community at large. The goal was to develop affective ways to prevent such abuses in the future. Finally, the Amnesty Committees (AC) duty was to ensure that applications for amnesty would be carried out in accordance with the act which established the process. If granted an amnesty, the applicant would not be subject to future prosecution. Each amnesty application had to be granted final approval by the president, which was expected to be Nelson Mandela. Once granted amnesty, the recipient would no longer be eligible for future prosecution in either criminal or civil court. Those who did not come forward continued to be eligible for future criminal prosecution. Supporters of this approach have called it restorative rather than retributive justice.
More than 7,000 applied for amnesty,
3,031 were thrown out as their action(s) was/were determined to be of
a personal rather than a political nature, with still others thrown
out because the action did not fit within the time frame guidelines
of the Commission, or because the applicant refused to admit guilt.
More than 200 were granted amnesty.
For eighteen months, hearings were held throughout South Africa
and the Commission received more than 15,000 statements from victims.
Hundreds of witnesses came forth to testify.
How well has the pragmatist approach
Second, the TRC had asked for anyone involved in gross human
rights violations which included the killing, abduction, torture
or severe ill-treatment of any person, to step forward and confess.
Those included ranged from the NP leaders to Chief
Buthelezi to the ANC leadership to local police authorities and minor
players in township liberation organizations.
This approach diminished arguments of opponents who sought to
characterize the process as revenge by the new government and gave credence
to supporters arguments that one key goal of the TRC process was
the establishment of a human rights culture in South Africa.
Third, through the process, the truth and the true nature of
South Africas apartheid system would become public knowledge,
thus the creation of a national memory.
No longer could anyone in South Africa pretend that the abuses
perpetrated under apartheid did not happen or were not as bad as many
of its victims had been alleging.
The process ensured that those who refused to believe the full
extent of South Africas crimes and who had dismissed the stories
as ANC communist lies would be forced to hear the truth,
and not from the ANC, but from the perpetrators themselves.
almost all of the literature on truth commissions, the importance of
allowing the truth to be heard is described as critical to the countrys
ability to move forward. Reconciliation
is impossible if a segment of society wants to remain conveniently ignorant
about its past while another segment has never had its suffering acknowledged.
According to Hamber, when countries are attempting
to overcome a violent past, it is better to deal with the past through
investigations, truth recovery, justice, and support for victims and
survivors of violence than to ignore it.
To ignore it breeds
resentment and has the potential to engender revenge violence.
The importance of truth has another purpose.
The power of truth to release the victims has been central to
the TRC process. The power of
the torturer over the victim is in part the psychological torment of
the victim believing that no one will ever know the abuses that he or
she has suffered. Thus the ability
of victims to come forward is a central step toward healing.
As Hamber notes, past traumas do not simply pass or disappear
with the passage of time. Psychological
restoration and healing can only occur through providing the space for
survivors to feel heard and for every detail of the traumatic event
to be re-experienced in a safe environment.
Fourth, this truth allowed many families to finally discover
what happened to their loved ones and in some cases find their remains
and give them a proper burial. This
closure, it is hoped, will enable reconciliation.
Television coverage of perpetrators and victims hugging at the
close of hearings is a testament to the power of truth for reconciliation. Desmond Tutu, Chairperson of the TRC, has noted that a 1998 opinion
poll on public attitudes toward TRC hearings indicated that 80
percent of the victims of apartheid say they believe reconciliation
is possible. He went on
to say [n]ow these are the people who should be saying we want
revenge, but theyre saying we feel it [reconciliation] is
Fifth, the TRC forum allowed South Africa to present itself
in the world arena as a nation of law and order where vigilante type
justice would not prevail. The
new government had to be cognizant of the need to prevent foreign
investors, both current and future, from fearing a government bent
on retribution. In addition,
the government was cautious about white flight-the fear
that many white South Africans, in whose hands enormous economic power
lay, would flee the country. With
South Africas reputation protected internationally, after a
few rough years, its economy now appears to be growing and foreign
investment is on the rise.
Sixth, as in many post-authoritarian societies, the TRC was
seen as a way to find out about the past without too vigorously pursuing
those who were responsible for the abuses, thus not jeopardizing the
fragile new democracy. This
way South Africans could learn about the past while continuing to
move forward--the essence of Tutus restorative justice.
The danger of a violent civil war, or the break down of the
South African state, has been a long-standing fear both inside and
out of the country. One visit
to the U.S embassy in South Africa and it is easy to see that the
design of this fortress was meant to withstand what many anticipated
would end apartheidmass violence.
Instead, South Africa has seen two relatively peaceful elections.
Finally, it must be said that the example and the stature of
both Nelson Mandela and Desmond Tutu made the transition possible
and the TRC palatable for many South Africans.
Without Mandelas example of forgiving his perpetrators
after twenty-seven years at the hands of the apartheid state, many
would have found reconciliation a hollow notion.
The hearings, too, could have proven a spectacle had it not
been for Tutus moral leadership.
He made the process very much about human beings.
With religious zealotry he demanded truth, absolution, and
No process is without its imperfections and such is the case
of the TRC. Criticism of the
TRC procedures and of the final report has come from many quarters.
Was a promise of amnesty necessary in order to dismantle apartheid?
This is debatable. According to de Klerk, in his submission to the TRC, the South African
government was on a course for change brought about by the fall of
the Soviet Union and the worsening economic situation of the country.
De Klerk also argued in that same submission that sanctions
had nothing to do with the changes that took place in South Africa.
While this too is debatable, given the countrys worsening
economic situation as sanctions tightened, what is clear is that some
type of change was inevitable. The degree to which it would have been peaceful, however, is open
From the beginning, both the NP and the IFP have argued that
the commission was ANC biased and as a result both participated in
the process reluctantly, and defiantly, providing as little information
as possible. The Commission
was made up of members of the human rights community from all races.
The Chairman, a Nobel laureate, Desmond Tutu, was widely regarded
as a man of integrity and honesty.
However, it may be argued that neither the IFP nor the National
Party would have been happy with any commission that was not dominated
by those who shared their version of the past.
The Commission, however, didface charges that its make-up favored
the ANC and came in for criticism both domestically and internationally.
Both the NP and IFP argued that their suspicions were well-founded
when a blanket amnesty was offered to the ANC leadership even though
amnesty applications were supposed to be done on an individual basis.
Criticism of the blanket amnesty also came from victims
families. Critics charged various
ANC members with kidnaping, torture, and with either using or encouraging
the use of necklacing. These
acts, they argued, many of which took place within ANC camps, were only
given a passing glance by the TRC. One
victims brother, the current Chief Land Claims Commissioner, Wetsho-Otsile
Joe Seremane, to say: I cannot help feeling that our
TRC has betrayed a partisan inclination, accommodating so-called high-profile
people or adherents to the popular party, relegating the
relative unknowns to the periphery of TRC experiences and services.
The Economist opined what many others had suggested,
that evidence of preferential treatment could also be found if the treatment
of Botha and Winnie Madikizela-Mandela was compared.
Additionally, it queried why Mangosuthu Buthelezi and the IFP
were not forced to come forward, given the connection between the IFP
and the apartheid regime in fermenting township violence.
Implicit in The Economists editorials
is that the TRC was designed to only go after whites from the former
Truth, of a kind, did emerge.
But there were several areas beyond the TRCs reach which
limited the amount and extent of truth revealed about South Africas
past. Since the Commission
was limited to gross violations of human rights, it was
unable to take into consideration other abuses, such as forced removals,
pass laws, or atrocities in neighboring states.
More than 3.5 million people were forcibly relocated between
1960 and 1982.
One goal of the pass laws and the homeland systems
was to provide cheap labor for mines.
The treatment of workers in the mines was reprehensible.
The living conditions in single-sexed hostels bred diseases,
such as AIDS, and dysfunction, both for the individual miners and for
their families. Specific laws
impacting this situation included the use of hut and poll taxes which
had to be paid in cash, thus forcing previously agricultural peasants
to the mining industry in search of currency, the Masters and Servants
Act which allowed for strict penalties for miners breaking their contract
and deserting mines, and the 1913 Native Lands Act which
allocated 8.8 percent of the countrys land to 87 percent of the
The economic benefits of the mines and the cheap pools
of labor trickled through South African society, benefitting many whites.
As Mamdani has argued, using the Latin American analogy for South
Africa does not work because it misses the link between conquest
and dispossession, between racialised power and racialised privilege,
between perpetrator and beneficiary.
Since the South African government had no respect for the sovereignty
of its neighboring nations, its destablization policies were particularly
harsh on them. Damage done
beyond South Africas borders was also not part of the
TRC mandate. This also,
then, excludes abuses committed in ANC camps.
The results of several studies conducted by the South African
Centre for the Study of Violence and Reconciliation reveal that the
victims of apartheid, who risked much and demonstrated enormous courage
to come forth and testify, (in fact, many of the victims have expressed
fear of repercussions for having given testimony to the Commission)
have also been critical of it. Those
who testified have complained that after giving their testimony, the
Commission did nothing to follow up with them.
Once the hearings were over, the TRC left town and the victims
never heard from it again. The
victims have expressed a desire to see follow up by the Commission,
including providing the victims with accessible medical and psychological
services. Many feel that there
has been no attempt by the TRC to deal with the process of reliving
the past which the Commission has brought up.
According to Hamber, one of the authors of the Centre for the
Study of Violence and Reconciliations study, the TRC should not
unearth these feelings and events without providing support for the
victims after they come forward, otherwise [i]t is far more likely
that the TRC will lead to feelings of revenge, bitterness and anger
if peoples who come into contact with it do not receive appropriate
counseling and adequate support and service.
Most victims feel that they should have been permanently
removed from office. According
to Gibson and Gouws, only those who received amnesty were happy with
The victims were not happy with the process because
they wanted retributive justice. Truth,
many of the victims argued, was a precondition for reconciliation.
But that was only the beginning.
Justice equals reconciliation and justice with punishment was
favored over amnesties. Many
of the victims stated that reparations were a necessary component of
Finally, most in the Centre for the Study of Violence and Reconciliations
study believed that the whites benefitted from the system and yet were
largely absent from the TRC process. And whites continue to benefit
from the system, they argue, via amnesties and economic advantages such
as pensions. The result has been
a false reconciliation with many of the victims feeling that they were expected to forgive and reconcile.
Mamdani warns that if, in the TRC process, the beneficiaries
of the system are not perceived as taking the process seriously and
seem uninterested in being forgiven, the victims are more likely to
demand exactly what the TRC seeks to prevent: justice.
Very few members of the security forces came forward
to request amnesty and the behavior of former president PW Botha toward
the Commission suggests there were many perpetrators of apartheid who
refused to take the Commission seriously.
Even though de Klerk submitted a series of statements to the
TRC on behalf of the NP, he never accepted full responsibility for the
abuses committed under both the party and his rule.
If one was seeking evidence to support victims perceptions
regarding the lack of true remorse by the perpetrators of apartheids
violence, one need look no further then de Klerks submission
to the TRC on behalf of the NP. In
the document he refers to apartheid and the escalation of violence
in the 1980s as the conflict or our conflict,
he suggests that not one side alone was responsible for the violence
in South Africa, and that not one side alone brought about the transformation.
He, like many other former apartheid supporters, seems to suggest
that apartheid, as a policy, simply proved unworkable.
De Klerk has stated that it was not the policy of the government
to rape or kill. Yet there were no investigations when murder, rape and other human
rights violations occurred. There
has been no attempt by the NP to take responsibility for the structural
and long-lasting impact of its apartheid polices.
The role of the media in helping prop up and disseminate apartheid
propaganda has not been fully explored. In Bird and Gardas study
regarding the role of the media in the reconciliation process, the authors
found that the media have been playing a positive role in informing
people about the TRC process both through newspapers, although literacy
levels are low with only 15-20 percent of the population reached this
way, and through radio, where hearings were played until the funding
ran out. Special bulletins and
Sunday broadcasts regarding TRC hearings followed.
The authors, however, were quite critical of the ways in which
the victims were described. Rarely
were they called survivors, and instead their suffering was covered
in graphic detail. Thus they
concluded that , what [was] evident from media reports is a failure
to explain the meaning of many of the horrific events . . . [thus] the
moral distinctions between those who fought against apartheid and those
who enforced it were often blurred by the lack of context and depth
in media reporting.
This may be a contributing factor to the results of
Gibson and Gouws study regarding attitudes toward the TRC.
They found that whites were much more willing to forgive
whites, for example the security forces, and less likely to forgive
ANC activists, and that blacks were more willing to forgive blacks,
and the ANC, and less willing to forgive whites.
Women were disproportionally affected by laws regarding pass
arrests, forced removals, and loss of jobs when associated with a
male member of the resistance, and yet none of this, nor the economic
effects of apartheid, which disproportionally affected women are considered
gross violations of human rights. Women, when arrested,
and twelve percent of the state of emergency detainees in 1986-87
were women, suffered torture and other human rights abuses, but also
suffered from gender specific abuses such as rapes, sexual assaults,
and torture techniques such as flooding their fallopian tubes with
water to make them unable to conceive.
against women happened at the hands of the government within both the
ANC camps and within townships. Women
were forced to act as sex slaves in hostels and were the subject of
attacks by such groups as the South African Rapist Association (SARA).
This group sought to punish women for not acting appropriately,
including, for example, not observing a boycott of a white owned shop.
Women also suffered sexual harassment in ANC camps.
While there was a special womens hearing in 1997
in Johannesburg, many brushed aside womens concerns as special
circumstances. Yet pressing
questions remain. Should rapists qualify for amnesty?
Is rape a political act?
Can the failure of the process to acknowledge and take
seriously the abuses women suffered be tied to the current epidemic
of violence against women in South Africa?
Finally, victims have complained that they have not had input
regarding the amnesties. One
prominent human rights activist in South Africa, Rhoda Kadalie, draws
the correlation between amnesties and future crime.
She suggests that there has been an indiscriminate granting of
amnesties and that this has had a negative effect on the countrys
The crime rate has exploded in South Africa and of
particular concern is the escalating violence against women.
South Africa now holds the dubious title rape capital of
the world. Estimates are
that one of every three women in South Africa has been the victim of
violent sexual assault. Further
study needs to be done with regard to this correlation, if in fact there
is one. However, it is not a
far intellectual leap to raise the question of immunity here.
If, as Valdez suggests, the best way of ensuring that an
emerging democracy breaks fully with an atrocious past is to accord
complete respect to national and international human rights law,
then perhaps the knowledge that the perpetrators of apartheid have gone
unpunished has prompted others not to take the law seriously.
issues are still left unresolved at this point.
One is that of those who perpetrated abuses, but never came
forward to tell the truth. According
to the process, these folks are eligible for prosecution.
Will they be? To highlight
the problem let us look at the case of de Kock.
He worked as an assassin for the South Africa government. His trial cost the state more than five million rand and prosecutors
were tied up for more than two years preparing his defense.
De Kock was a low level complicitor of the regime.
It is safe to assume that going after bigger fish would prove
even more costly. As judge Goldstone stated in a speech before the 1994 elections:
Another issued still to be worked out is how reparations will
be made. Where will the money come from?
The issue of implementing reparations is left to the government,
not the TRC, although it is likely that victims who do not receive
anything for their troubles in appearing before the TRC will likely
blame it for the lack of follow up.
The TRC also may take the brunt of criticism when reparations
are not forthcoming.
The history of dealing with post-authoritarian regimes demonstrates
that a variety of mechanism have been used to varying degrees of success.
Of course the central question must be: what is success?
The standard has been the tribunals of both Nuremburg and Tokyo
which provided examples of some types of justice, albeit a victors
justice. These were unique
because they were an international effort.
Currently there are two such efforts underway to deal with
the former Yugoslavia and with Rwanda.
Both are ongoing and, as a result, it is too early to fully
assess their impact, but several themes have emerged which are relevant
to our discussion. Since the
vast majority of authoritarian regimes of late have negotiated their
own departure, bringing the leaders
to justice is much more difficult then it was in the post World
War II setting where unconditional surrender made indictment of the
former leaders much easier. Additionally,
the legacy of Nuremburg, which tried leaders using their own government
documents has ensured that future authoritarian leaders wont
make the same mistake. The
apartheid state destroyed thousands of documents upon realizing Mandelas
ascent to office was immanent. Thus,
given the nature of transitions today, it is unlikely that we will
see the duplication of Nuremburg.
Even with the first two international attempts, we must question
how successful they have been. Their
success should be measured, in part, on what the victims had hoped
to gain from the process. Certainly,
the demand from the Holocaust was Never Again and yet,
while not in either Germany or Japan, genocide has been repeated many
times since. Germany has apologized
for its actions in WWII, while Japan has not.
And, while Germany and Japan have been peaceful, democratic
societies since the end of WWII, we have not yet seen the end of history.
So, if the question we seek to address with regard to the first
set of international tribunals is success at prevention of such
abuses, the answer is clear.
While genocide of the Jews has not again happened, genocide
has indeed happened. While
totalitarian regimes have not re-emerged in Germany or Japan, they
have indeed wrought their terror upon other societies.
Perhaps instead all we can hope for is that the types of abuses
perpetrated in one society will not reappear within that society.
In evaluating South Africas transition and its attempt
to deal with its past, perhaps the only acceptable measurement is
whether or not an apartheid-like regime re-emerges.
Reconciliation may not be possible there or anywhere.
What is insidious about state oppression and repression is
the ease with which citizens in whose names these abuses are carried
out can walk away from the past without accepting responsibility for
it. We have in the U.S. Daughters
of the American Republic, for example, which seek to demonstrate familial
pride at helping found this country.
Yet there is no daughters of slave holders or sons
of Native American slaughterers simply because we accept no
responsibility for those actions the state carries out in our name.
We seek only credit for that which is perceived as a societal
a collective society we were unable to apologize to the Japanese for
interment camps until the 1980s and we still have not apologized for
slavery or the treatment of Native Americans.
South Africa will likely be no different.
Those who were abused will continue to feel so and those who
did it or in whose name it was done will continue to seek to distance
themselves from their responsibility.
The recipe that South Africa has formulated for dealing with
its past may in fact produce more ghosts then it hoped to lay to rest.
As Simpson warns:
restoring law and order requires extra-legal measures.
This may be acceptable in societies, such as those of ODonnell
and Schmitterss study, where people have felt comforted by being
outside the realm of politics,
but in South African society, where every act of daily
living has had political consequences, the reverse is proving to be
the problem. South African society
is far from apathetic and is in fact incredibly political.
South Africa is a model, like the Chilean, Argentinian and
El Salvadorian examples before it, from which other transitioning
societies may draw in dealing with a post-authoritarian regime.
It should be used as a format from which to garner that which
seemed to work. What is clear
from the South African case, and certainly is also true of the other
cases discussed here, is that reconciliation is a personal endeavor
that no state alone can deliver. No
state mechanism will satisfy the victims or the perpetrators.
The best interests of the victims will never be the top priority,
because they will remain objects in the process where elites secure
their own egress and protect their own, all in the name of furthering
the transition or some polluted sense of democracy.
Because without justice, democracy is shallowed and attempts
at consolidation may prove fruitless.
The epidemic of violence in South Africa suggests that many
refuse to accept the parameters of the transition and instead are
taking it upon themselves to continue to operate outside the law to
further their selfish aims. That
is one of the legacies of the TRC.
Valdez suggests that a state which wishes to deal with its
authoritarian past must include four components in its efforts: to
investigate and make the facts known (truth); to put on trial and punish
the guilty (justice); to redress the moral and physical damage caused
(reparation); and to eradicate from the security forces those known
to have committed, ordered or tolerated the commission of abuses.
South Africa was somewhat successful at achieving truth,
but much less successful at the other three components.
At this point, the main goal of the TRC--to promote reconciliation--appears
to be faltering.
 Breyten Breytenbach as quoted in Boraine, et. al.
 Parker, Peter. The Politics of Indemnities, Truth Telling and Reconciliation in South Africa Ending Apartheid Without Forgetting. Human Rights Law Journal, Vol. 17, #1/2, 1996, pp. 1-13.
South Africa: Negotiating Change? in Impunity and Human
Rights in International Law and Practice.
Naomi Roht-Arriaza, ed. New York, NY: Oxford University Press,
1995, pp. 267-304.
 National Public Radio, 7 October 1999.
S. Response: The Duty
to Punish Past Abuses of Human Rights Put into
The Case of Argentina in Transitional Justice How Emerging
Democracies Reckon with Former Regimes, Vol. I.
General Considerations, Neil J. Kritz, ed. Washington,
 Parker, The Politics of Indemnities, p.12.
 ODonnell, Guillermo and Philippe C. Schmitter. Transitions from Authoritarian Rule: Tentative Conclusions. Baltimore, MY: Johns Hopkins University Press, 1986, p. 24.
 Ibid, Transitions from Authoritarian Rule, p. 30.
Victims, Survivors and CitizensHuman Rights, Reparations
and Reconciliation. South African Journal on Human Rights,
Vol. 8, #4, 1992, p. 498.
 16. Ibid, in Dealing with the Past Truth and Reconciliation in South Africa, 2nd ed. Alex Boraine, Janet Levy and Ronel Scheffer, ed. Cape Town: Institute for Democracy in South Africa.1997, p. 103.
Samuel. The Third Wave: Democratization in the Late Twentieth
Century in Transitional Justice How Emerging Democracies
Reckon with Former Regimes, Vol. I General Considerations, Neil
J. Kritz, ed. Washington, D.C.: United States Institute of Peace Press,
1995, p. 81.
 In addition to those discussed below, commissions of inquiry have also occurred in The Philippines, Chad, Uruguay, Uganda, Bolivia, Germany, Rwanda, Honduras, and Guatemala.
 Brown, Cynthia. Reviews Report of the Chilean National Commission on Truth and Reconciliation 2 Vols. American Journal of International Law, 90, 1996, pp.182-83.
The Role of Truth Commissions in the Search for Justice Reconciliation
and Democratisation: The Salvadorean and Honduran Cases. Journal
of Latin American Studies, Vol. 29, #3, 1997, pp.693-716.
 Ibid., Fifteen Truth Commissions-1974-1993," p. 237. Pinochet has found himself subject to a different kind of justice, that of the international community. At this writing, Pinochets return from Britain without having to face charges appears immanent, but precedent set in his case offers yet another possible route for dealing with authoritarian leaders.
 Boraine, Alex. Dealing with the Past Truth and Reconciliation in South Africa 2nd Edition. Alex Boraine, Janey Levy and Ronel Scheffer, eds. Cape Town: Institute for Democracy in South Africa, 1997.
 Kaye, Michael. The Role of Truth Commissions, p. 709.
 Sarkin, Jeremy. The Trials and Tribulations of South Africas Truth and Reconciliation Commission. South African Journal on Human Rights, Vol. 12, #4, 1996, p. 622.
 Gibson, James L. and Amanda Gouws. Truth and Reconciliation in South Africa: Attributions of Blame and the Struggle over Apartheid American Political Science Review, Vol. 93, #3, 1999, pp. 501-517.
 Goldblatt, Beth and Shiela Meintjes. Gender and the Truth and Reconciliation Commission: A Submission to the Truth an Reconciliation Commission May, found at http://sunsit.wits.ac.za/csrv/papkhul.htm, 1996.
 For the importance of truth as critical to a nations healing, please see Asmal 1992; Boraine, Levy, and Scheffer 1994; Hamber 1995 and Zalaquett 1993.
How Should We Remember? Issues to Consider when Establishing
Commissions and Structures for Dealing with the Past. Found
 Ndebele, Njabulo. Moral Anchor Siyaya! Spring, #3, 1998, p. 16.
 Seremane, Wetsho-Otsile Joe. Where Lies my Brother? Siyaya! Spring, #3, 1998, p. 47.
 The Economist. International: How Imparial? 346, 8052, 24 January 1998, p. 44.
 Mamdani, Mahmood. A Diminished Truth Siyaya! Spring, #3, 1998, pp. 38-41.
 Pillay, Devan. Mineworkers Shafted Siyaya! Spring, #3, 1998, pp. 48-51.
 Mamdani, A Diminished Truth, p. 40.
 Hamber, Dealing with the Past and the Psychology of Reconciliation at ,1995.
 Arde, Greg. Empty Chairs, Silent Voices Siyaya! Spring, #3, 1998, p. 29.
the Study of Violence and Reconciliation and the Khulumani Support
Group. Survivors Perceptions of the Truth and Reconciliation
Commission and Suggestions for the Final Report, found at
 Centre for the Study of Violence and Reconciliation.
 Ibid, 1998, p. 40.
and Zureida Garda. 1997. Reporting the Truth Commission: Analysis
of Media Coverage of the Truth and Reconciliation Commission of South
Africa. Gazette, Vol. 59, #4-5, 1997, p. 341.
 Goldblatt and Meintjes, Gender and the Truth and Reconciliation Commission.
 Ngidi, Sandile. Bitter Pill of Amnesty Siyaya! Spring, #3, 1998, p. 25.
 Valdez, Patricia. 1998. Must the Victims Always Wait? Siyaya! Spring, #3, 1998, p. 55.
 Parker, P. The Politics of Indemnities, Truth Telling and Reconciliation in South Africa. p. 9.
 Vitoria. Humanitarian Intervention and Just War quoted in Mona Fixdal and Dan Smith in Mershon International Studies Review. Vol. 42 #2 1998, p. 298.
 Simpson, Graeme. A Brief Evaluation of South Africas Truth and Reconciliation Commission: Some lessons for Societies in Transition. found at 1998.
 Motala, Ziyad.. The Promotion of National. Unity and Reconciliation Act, the Constitution and International Law. The Comparative and International Law Journal of Southern Africa, Vol. 28, #2, 1995, p. 362.
 ODonnell and Schmitter, Transitions from Authoritarian Rule.
Must the Victims Always Wait? p. 53.
International. 1995. Policy Statement on Impunity in Transitional Justice How
Mahmood. 1998. A Diminished Truth Siyaya! Spring,
Devan. 1998. Mineworkers Shafted Siyaya! Spring,
Wetsho-Otsile Joe. 1998. Where Lies my Brother?
Siyaya! Spring, 3:46-47.
Lawrence. 1997. Dealing with the Past Truth and Reconciliation
in South Africa 2nd
Reconciliation. The Report of the Chilean National Commission
on Truth and
Jose. 1995. The Dilemma of New Democracies Confronting Past
Abstract: Post-authoritarian regimes have struggled with the most appropriate way to deal with the former regimes human rights abuses.Several schools of though have emerged as to how this should be accomplished.Into this framework the South Africa model, the Truth and Reconciliation Commission (TRC), is discussed.The TRC has completed its charge and the results vary according to ones perception of that charge.An assessment of South Africas attempt at truth and reconciliation and the TRCs viability as a model for other transitioning societies are discussed.
PATRICIA J. CAMPBELL is currently Associate Professor of Comparative and African Politics at the State University of West Georgia and Coordinator of the Global Studies Program. She has written several articles on human rights, refugee issues and gender, appearing in journals such as Third World Quarterly, Africa Today, and has several chapters in various books. She is co-editor of Democratization and the Protection of Human Rights: Challenges and Contradictions, Greenwood Publishers, 1998.
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