Lyn Graybill
“South Africa’s Truth and Reconciliation Commission: A Model for Other Divided Societies?”
August 2, 2002

Following an exceptional transition to power in which a ruling party without imminent threat of military defeat, handed over the reigns of power. South Africa embarked in a process of reconciliation. It’s not the world’s first truth commission; there had been about two dozen truth commissions before South Africa began its own. But it’s the most ambitious truth commission today.

One novel aspect is that amnesty would be granted to individuals in exchange for telling the truth of their misdeeds. It offered not only blanket amnesty, as in Chile for instance, but amnesty that was conditioned to individual disclosure. The TRC was mandated to look at abuses that were committed between March 1st 1960, and May 10 1994 the inauguration date of Nelson Mandela. In order to give as complete a picture as possible of the violations of human rights that took place on both sides, the government and on the side of the resistance movement. Again, this is rare amongst truth commissions.

Between 1996 and 1998 the TRC worked through three structures: the human rights violations committee, the amnesty committee, and the reparations and rehabilitation committee. The human rights violations committee provided a forum for victims to tell their stories. Some 20,000 victims gave written statements to the TRC, and about 2,000 of these were chosen as a representative sample of the different kinds of abuses, and they were able to publicly testify in these hearings in most major cities and throughout small towns across the country. The idea was that it was therapeutic for individuals to tell their stories and relive their experience in order to be healed, to have one’s experiences validated and one’s suffering affirmed in a safe space. It was also a way for victims, perpetrators, and bystanders to come together and construct a common memory, a common history of the past. This was seen as so important so that whites later couldn’t live in denial of what happened in the apartheid era.

In addition to the hearings for victims there were special hearings for the political parties to give their view of the past. And this was the first instance where political parties were brought to a truth committee to account for themselves. Unfortunately, the national party, while accepting all responsibility for what may have happened during the apartheid era, said it was just as shocked as anyone to hear of killings and tortured by police operative. Leclerc denied that it was government policy to assassinate enemies, saying government instructions to eliminate the opposition were misconstrued. The A&C was more forthright in its party submission. It admitted to having killed 34 of its own cadres who were suspected of being informers in its training camps in Angola, and raping its own female soldiers. It took responsibility for the bombing in 1983 of the South African defense force headquarter in Pretoria, for arming self defense units in the townships, which took the law into their own hands. Also, for not condemning early or forcefully the necklacings, whereby a lighted tire was burnt and placed around the neck of a suspected informer or member of a rival resistance group.

Other special hearings on the roles of the judiciary, the medical profession, media, business and the churches were held, examining how these sectors had colluded with the government and created an environment in which human rights abuses flourished. These hearings were to enable all South Africans to acknowledge some level of guilt, since up to this point it was easy for white South Africans to think they had not tortured anyone and therefore had nothing to be ashamed of. But, many whites involved in these sectors, these professions, had to confront themselves with their complicity and inaction.

The second committee, the amnesty committee, focused not on the victims but on the perpetrators. The goal was for amnesty applicant story’s to contribute to the knowledge about the past. Supporters of amnesty say that more truth would be revealed in this process than in court trials. There is the incentive in this committee to tell the entire truth, while trials are all about guilty defenders hiding the truth in order to be acquitted.

Several important amnesty hearings were held. One was the 1983 assassination of communist party leader Chris Hani by two conservative party members. Another was the 1977 death of a black consciousness leader, Steve Biko, at the hands of five security police. Of particular interests to Americans were the amnesty hearings for the killers of Amy Biehl, a Fulbright’s scholar.

Judges on this committee heard cases where perpetrators confessed of violating human rights. To qualify for amnesty these had to be acts associated with political motives. One view is that amnesty is complete surrender for justice. Human rights watch, for instance, was opposed in principal to granting amnesty. It argued that governments have a duty under international law to prosecute gross human rights violations. But supporters of amnesty say that it is not blanket amnesty where the truth remains hidden, but it required full disclosure on individual cases. Public hearings, they say, are a form of punishment, because there is public shaming and accountability with full disclosure. No amnesty would be granted for acts motivated by personal gain, or ill will, malice or spite. There had to be political motivation and proportionality, that is, the deed had to be proportionate to the objective pursuit.

The number of amnesty applications totaled 7,700 about 10% of whom were ultimately given amnesty. Unfortunately, amnesty applications came mainly from apartheid foots soldiers, but not from the generals or politicians. There were no applications by PW Botha, or FW Leclerc, the last two national party presidents, or Suthu Buthelezi head of the Inkatha Freedom Party, whose members, the TRC, found responsible for the most killings. In its final report the TRC recommended prosecutions of those who did not come forward and submitted a list of a hundred names.

The third committee, reparations and rehabilitations, held meetings over two years to get an idea of what victims wanted. Only bona fide victims would get reparations. To qualify as a victim one had to be abducted, tortured, or severely ill-treated. Or if killed, a family would be considered a secondary victim and be recompensed. The committee proposals in addition to symbolic remembrances such as erecting monuments and celebrating days of remembrance included substantial reparations. The committee recommended between 1,700 thousand and 2,300 thousand rand a year, per year, for six years. Which is the equivalent of about US$25,000. This would cost the government 3 billion rand, or US$27 million.

I’d like to talk now about some of the criticism of the TRC process. The first had to do with amnesty, certainly the most controversial plank of the process. Amnesty was necessary politically; it was a compromise the A&C was forced to make during its negotiations with the national party, to ensure the handover of power. And maybe it’s even good from an ethical point of view of reintegrating evildoers into the community. Still, not only are these people not punished, but they kept their jobs and pensions. Too much was given to perpetrators and not enough to victims. People who tortured are still in the police service, which is too much to expect for victims to accept. At the very least, lustration laws that would keep perpetrators from holding public office or service could have been considered, but were not recommended.
Furthermore, there was no requirement for contrition. The promotion of national unity and reconciliation act that authorized the TRC did not require perpetrators to be sorry or even admit that they were wrong. The story was told that when the act was explained to the commissioners at the onset of the hearings, some started to cry when they realized perpetrators didn’t have to show remorse. Still, whether amnesty applicants displayed remorse or not, disclosure means, at the very least, acknowledging the truth about what happened.

A second criticism about amnesty was that no moral distinction was made between the acts of the government and those of the liberation movement. The A&C fought a just war against an illegitimate regime. The UN had declared apartheid a crime against humanity. Yet all violations on both sides had to be confessed. To compare the limited accesses of the A&C, a liberation movement fighting for its freedom to the colossal atrocities of an illegitimate government in an effort to shore up white rule, is tantamount to ignoring the distinction between the size of a flee and an elephant, says Michael Lapsyl, an Episcopal A&C priest, whose arms were blown off by a security bomb sent to him. This is the reason that the A&C condemned the final report, arguing that the TRC had criminalized a just struggle.

Thirdly, amnesty was not applied evenhandedly. Killers of Steve Biko, the most famous leader of the black consciousness movement, did not receive amnesty. The amnesty committee claimed his killing was not political. The decision led one editorialist to write, “extraordinary, how much more political can you get?” Likewise, the killers of Chris Hani, the popular communist party leader, did not receive amnesty. His assassination was not considered a political act although he was second in popularity to Mandela and his most likely successor. But the murderers of worshipers in St. James’s church apparently passed the political and proportionality test. Many wondered how the indiscriminate massacre of worshipers, in a multiracial church at that, met any notion of political motivation or prop. And the murderer of Amy Beahl, who happened to be at the wrong place at the wrong time, and was brutally stabbed to death by aply youth, were granted amnesty. The leaders of their political organization denied giving an order to kill the girl, so how was this deemed political?

The amnesty committee apparently relied on the implied authority of political speakers, whose slogan “one settler, one bullet,” perhaps led their followers to believe that this killing was sanctioned. And proportionality of the deed to the object seems to have been ignored.

Finally, despite the threat to prosecute those who did not apply for amnesty, this has not happened. It is doubtful whether there will be any prosecutions, despite the fact that the TRC handed over a hundred names with recommendations that the government prosecute. Even Bishop Tutu recently admitted it would be too expensive to pros everyone.

My second criticism has to do with who is deemed a victim. To qualify, one had to be an object of gross human rights abuses. That is, one had to be abducted, tortured, killed or severely ill-treated. Being detained was not enough, being kicked around, removed under group areas, made to carry a pass, and being doomed to poverty because of the color of one’s skin were not enough to qualify one as a victim. All blacks were oppressed; reparation should not just go to victims by this strict definition. The TRC claims though that it had a limited mandate to just to focus on gross human rights abuses, but it could have interpreted severe ill-treatment more broadly to include more people.

The third group of criticism has to do with reparations. In many respect the success of the TRC will be judged by reparation to victims. By that criterion it will be judged a failure. President Mbeki announced in April this year that victims will receive a one-time payment of 30,000 rand, which is about US$3800, well below what the TRC recommended. The A&C government says there is not enough money for reparation, that the government can only afford token payments.

Finally, how much healing occurred? Some victims who publicly testified spoke of it as a positive experience. One victim after testifying about being blinded by police bullets recounted, “I feel that what has been making me sick all this time is the fact that I could not tell my story. But now I feel as though I got my site back by coming here and telling my story.” But both the media and the commissioners, perhaps, overemphasized the cathartic nature of testifying. As long as there was crying commissioners said healing is occurring, which led some critics to decry the TRC as the Kleenex commission. Testifying may have helped some victim witnesses in restoring their dignity by being heard by an empathetic audience, but healing is a long-term process. For many victims, after the initial sense of relief, months later they were experiencing trauma and despondency. It’s harmful to ask people to tell their most painful experiences one time, and just leave them to cope with stirred up memories that had been buried. There is a need for continued psychological support, which most victims did not get. There were few psychiatrists in most rural areas of South Africa. Which was hard for the TRC to make referrals.

Also, by constantly harping on the endless capacity of people to forgive, did Tutu make it impossible for victims to express their legitimate rage, which is an important first step in healing memories? Displays of forgiveness, perhaps, had more to do with Tutu’s compelling presence than with a genuine attitude of victims. One woman later confided, “what really makes me angry about the TRC and Tutu is that they are putting pressure on us to forgive. I don’t know if I will ever be able to forgive.”

Overall, how successful was the TRC? One poll indicated that the majority of the population felt the TRC hurt relations between the races? Did this mean that reconciliation did not result from this 2.5 year process of national group therapy? Healing of traumatized people takes time. Tutu points out that the TRC was based on the bill called the Promotion of National Unity and Reconciliation Act, not the Achievement of National Unity and Reconciliation act. Recon is a process, not achievable with a quick fix. The TRC is just one effort in the long-term project. But, in the very least, if not perfect reconciliation, than peaceful coexistence has been achieved by the TRC. It’s no small feat that civil war did not resume nor revenge killings instigated.

I will discuss now the possibility of the use of the TRC as a model for other countries. Is it only applicable where there is not a military victory by one side? Is it just possible for countries that have experienced, like South Africa, a negotiated settlement? It seems that victors will demand justice in courts and trials.

Tutu travels the world over preaching the superiority of forgiveness over punishment. It wasn’t just politically necessary in South Africa, but morally superior, he argues. To the Rwandans after the genocide, he spoke of justice with ashes, to describe their decision to prosecute those responsible for the 1994 genocide. His message fell on deaf ears at the time.
Does the notion of forgiveness and repentance only work in a Christian country? Seventy-seven percent of South Africans identify themselves as Christian. Tutu, the TRC’s chair, and Alex Berainge, were national leaders of their denomination in their countries, and four of the seventeen commissioners were from the faith community. But Christianity is not alone in elevating reconciliation. Most religious traditions place reconciliation above justice. Traditional African thought promotes also the ideal of restoring evildoers to the community rather than punishing them, what Tutu calls Umbunto. Perhaps then this model is not limited to nations with a majority Christian population.

Still, what about places where the churches themselves were implicated in violence. In Rwanda for example the churches played a sorry role in the 1994 genocide, priest urged Tutu parishioners to attack Tutsis in their own parishes. Can the message of the church on reconciliation be taken seriously in those places? Christian insights on forgiveness and reconciliation may not be readily available where churches are so compromised because of their involvement in instigating violence.

Also, does the severity of the crimes limit the model? I’m thinking again of the genocide in Rwanda. Up to a million Tutsis were slaughtered. Does the severity of the crime make forgiveness leading to recon unthinkable? Although there were killings, detentions and tortures in South Africa, there was nothing comparable to the attempt to eliminate an entire people.

Finally, is there something miraculous about South Africa, and not repeatable? It does appear that South Africa has a monopoly on leaders of integrity and high moral standing. The world rarely sees the likes of Tutu or Mandela, two noble peace laureates. I wonder if other countries have this kind of principled leadership. Mandela endured twenty-seven years in prison with no rank or bitterness. His statement, “courageous people do not fear forgiving for the sake of peace,” has not been readily repeated by new regimes. If a successful truth commission depends on the caliber of leadership, does it make the South Africa's truth and reconciliation commission a unique experiment, but ultimately not replicable.

Let me say a bit more about Rwanda’s experience. In the aftermath of the genocide, Rwandans were more interested in justice than in pursuing a truth committee style of reconciliation. The message of forgiveness from Tutu fell on deaf ears. If reconciliation trounced justice in South Africa, the opposite was true for Rwanda, where justice trounced reconciliation.

But if disappointment with the international criminal tribunal for Rwanda set in, interest has turned to a more reconciliatory model. Only 13 prosecutions have been completed in the nine years since the genocide. The delay in dispensing justice there has been disappointing. The hearings too are conducted too in Rusher, Tanzania, not in Rwanda, so local people feel disconnected with what’s going on there. It is viewed locally as international justice for the international community, because it benefits by appeasing its conscious for not intervening to stop the genocide. International justice is seen as suspect, sometimes too lenient. The most severe punishment distributed out by the ICTR is life in prison, so the masterminds of the genocide get off more lightly than the followers who were tried in state courts, where they may get the death penalty, clearly an unfair situation.

To deal with the backlog of genocide suspects, some 100,000 prisoners, Rwanda recently resurrected the traditional method of dispute resolution, called the Gacaca method. Traditionally, Gacaca courts heard minor disputes between people. These courts were in operation in pre-colonial and colonial times, and were operational up to the time of the genocide. The traditional elders called the community to get together to decide on guilt, to hand out appropriate punishment, and decide on proper compensation in an effort to reintegrate the individual back into the community; 260,000 people have been elected to serve as judges in these new Gacaca courts, with 11,000 courts established throughout the country. Gacaca will hear all levels of crime, except category one, planning the genocide or committing sexual torture. It is estimated that 100,000 prisoners will be tried in the Gacaca courts.

There are pragmatic reasons, certainly, to deal with the backlog of genocide cases, but the true believers say it’s the superior method of getting to the truth, reintegrating perpetrators, encouraging apology and forgiveness, and promoting reconciliation. Gacaca seems much more like the reconciliatory aims of the TRC. It aims to restore the order by reintegrating offenders back to their community. There’s less focus on punishment, though appropriate punishment will be handed out, then on restoring harmony. This process has been resurrected to deal with very serious crimes for which it was not originally intended. In the Gacaca courts, sentences will be half for those who come forward with a confession.

Rwandans do expect that offenders will apologize when faced with the community. "When someone tells me he did it, and asks forgiveness, then I can forgive,” one Rwandan explained. Apology, which was part of the traditional Gacaca system, is actually written into the Gacaca law. Compensation is also written into the Gacaca legislation. Compensation will be exacted from individual perpetrators, therefore individual blame, and individual accountability will be apportioned. The guilty persons will pay into a compensation fund, which will aid those individuals who had been hurt. Community service too will make part of the reparations.

However, only the perpetrators of acts committed during the genocide will be tried here. Up to 100,000 casualties committed by the Rwandan Patriotic Front, now the ruling party, in the aftermath of the genocide will not be heard here, so its’ definitely a one sided process unlike the TRC in South Africa. Still, Rwanda’s recent interest in restorative justice through the Gacaca courts confirms the appeal for the reconciliatory over the retributive model of justice in transitional societies, and owes much to the groundbreaking work of the TRC.

Thank You.