PSPD in English Archive 2001-04-03   1440

Report on Truth & Reconciliation

Report on Truth & Reconciliation


I regard myself as very fortunate to have lived as a South African in the second half of the 20th-century.

Where else could one have experienced all the basic human frailties and strength on such a grand scale?

For every Verwoerd we had a Luthuli. For every Vorster we had a Sisulu.

For every Botha we had a Tambo. And as a bonus the Creator gave us a Tutu and a Mandela.

But these men were merely the symbols of what we were doing as ordinary South Africans. The story of South Africa is not the story of Verwoerd and Luthuli, of Botha, Tambo or Mandela. The story of South Africa is a story of ordinary people, of villains and heroes who did not walk on international stages.

Never before in modern history have a people told their stories so fully and movingly as with the Truth and Reconciliation Commission. There have been many other truth commissions: Chile, Argentina, Uganda and elsewhere. Those commissions in my humble opinion were about the result, the final report. Our truth commission was not above the final report, but about the telling of the story. Relentlessly, day after day we heard the stories of our mothers and fathers and sisters and brothers and widows and survivors. For so many years their pain was denied; now it was not only recognized, but also honored. Their stories became part of our lives, of our subconscious even of those who desperately did not want to hear. It changed all of us forever.

Chief Justice Mohammed, the first black chief justice in South Africa, drawing on the post preamble to the interim constitution reminded us that the Commission was but one initiative in a bridge building exercise. It was designed to take the country from a deeply divided past characterized by strife, conflict, suffering and injustice to a future founded on the recognition of human rights, democracy and peaceful coexistence of Chief Justice Mohammed spoke of the agonizing balancing act between the need to provide justice to victims and the need for national reconciliation.

The mandate of the commission required that in providing as complete a picture as possible of the events under its mandate it should at the same time reflect on the motives and perspectives of all concerned. Indeed to the extent that the motives and perspectives of the worst offenders are analyzed and an attempt is made to understand them, to that extent is a nation better equipped to work towards ensuring that similar atrocities do not occur in the future.

Struggle for human rights and the TRC

In taking stock of what happened in the 50 years since the Declaration of Human Rights in 1948, the Rome statute in its preamble states:
one common bond binds humanity but expressed concern that the delicate mosaic binding a common global culture and shared heritage may be shattered at any time;
that literally millions of children, women and men became victims of unimaginable atrocities that shocked the conscience of humanity; recognizes that such crimes threaten peace, security and well-being of the world;


affirmed that serious crime should not go unpunished and that prosecution at national level must be assisted by international cooperation;
signifying the determination of the world to put an end to impunity for perpetrators and thus contribute to the prevention of such crimes.

The Historical Context, Legal Origins and Philosophical Foundation of the South African Truth and Reconciliation

Commission

In an attempt to simplify matters I shall refer to the following two models:

(a) the justice model which deals with the question of prosecution and punishment the elements of retributive justice and accountability forming the central tenets of this approach.

(b) and the reconciliation model with the elements of truth and reconciliation forming its central tenets.

For almost 350 years the majority of some Africans were excluded from participating in the political and economic life of the nation. Successive constitutions in 1910 and 1961 and then 1983 were used as instruments to consolidate White hegemony excluding the vast majority of the population by virtue of the color of their skins.

The system of apartheid, declared a crime against humanity by the international community consisted of millions of acts and omissions performed daily, consciously and unconsciously that were woven into a system which not only ensured privilege fro a few, but also attempted to criminalize from the cradle to the grave those excluded from such privilege. South Africa is thus a country in the midst of a complex and painful transition from a pariah white minority dictatorship to a democratic, constitutional state; a country divided into two distinct nations one rich, privileged and mainly white; one poor, marginalized and mainly black; from a stagnating economy into a world player holding its own among developing countries.

While the commission is a product of our countrys unique history and the nature of our particular transition, we share many similarities with other transitions especially in South American and Eastern Europe, which necessitated compromises that place certain limitations on the final scope of the operation. I mention but a few of such issues:

A stalemate was reached with neither side an outright victor


– a negotiated settlement ensued not a revolutionary take over;

– the gradual shift from a dictatorship to democratic majority rule;

– a fragile democracy and a precarious national unity;

– the capacity of the outgoing regime, including the military and security forces to delay or derail the process or at the very least support and promote resistance to change;

The legacy of oppression and serious human rights violations;

– a commitment to the attainment of a culture of democracy and human rights and respect for the rule of law;

A determination to avoid a recurrence of human rights violations;

the Establishment of a constitutional state, marking a shift from Parliament sovereignty to constitutional sovereignty;

a constitutional commitment to reconciliation and nation building; and

a constitutional obligation placed on the new democratic Parliament to provide for a process of amnesty for acts committed with a political motive, arising from the conflicts of the past.

Our Constitution, therefore provided a historic bridge between the past of a deeply divided society characterized by strife, conflicts, untold suffering and injustice and a future founded on the recognition of human rights, democracy peaceful coexistence and development opportunities for all South Africans irrespective of color, race, class, creed or sex.

The pursuit of national unity, the well-being of all South Africans citizens and peace require reconciliation between the people of South Africa and the reconstruction of society. The adoption of this constitution lays the foundation for the people South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.

These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu and not for victimization.

The objectives of the commission were to address the legacy of the past by promoting national unity and reconciliation and contribute to the healing of the nation. It had to do so firstly by developing a complete picture of the possible bauses, nature and extent of the gross violations of human rights committed from 1st March 1960 to the tenth of May 1994. It had to facilitate the granting of amnesty to persons who made a full disclosure of all the facts relating to acts associated with a political objective. The commission was required to establish and make known the whereabouts of victims, restore the human and civil dignity of survivors by giving them an opportunity to relate all accounts of violations suffered and recommend reparation measures. The commission was obliged to write a report detailing its activities and findings and recommend measures to prevent future abuses.

While the focus of the commission was on seeking the truth in order to restore the moral order, serious delays in the improvement of quality of life threaten any attempts at reconciliation. If we do not deliver on economic justice then no matter how reconciliatory we are, or whether we know the complete truth about our past or not, the whole South African liberation project could be put in jeopardy with social and political upheaval. Revealing the complete truth of our shameful past without achieving economic justice or conversely attaining economic justice without revealing the complete truth spells failure and even disaster.

The commission is but one mechanism we have pursued to enable us to address moral issues of our past and in particular, various forms of physical violence we unleashed on each other. It is important to stress that reconciliation, reconstruction and development are a process. The Commission is not meant to equal reconciliation.

Same Species different animal: How South Africa compares

to truth commissions worldwide

Many refer to the South African Commission as a model. They probably have several aspects of the commission in mind and in their view this commission has reached beyond most other commission by developing:

-a public process of disclosure by perpetrators and public hearings for victims;

-an amnesty process that reviewed individual applications and avoided and blanket amnesty; and

-a process that was intensely focused on national healing and reconciliation with the intent of moving the country from its repressive past to a peaceful future where former opponents could work side by side.

How the South African Truth Commission Differs:

Powers granting of amnesty, the subpoena power, search and seizure, investigations, staff size and budget, and a mechanism to have its power and operations challenged in court;

Process very public, special hearings on different sectors, the involvement of the non-governmental sector, press conferences;

Crafting of terms done by Parliament and not by the President; full

cooperation was received by all of the political parties; involvement of the non-governmental sector;

Reconciliation framing the work and reconciliation, religious nature of reconciliation and the influence of religious leaders on the Commission.

Objectives and Functions as described in the Act

The objectives of the commission shall be to promote national unity and reconciliation in a spirit of understanding which transcends the conflicts and divisions of the past by;

Establishing as complete a picture as possible of the causes, nature and extent of the gross violations of human rights which did occur during the period from 1st March 1960 to the cut-off date including the antecedents, circumstances, factors and context of such violations, as well as the perspectives of the victims and the motives and perspectives of the persons responsible for the commission of the violations, by conducting investigations and holding hearings;

Facilitate the granting of amnesty to persons who make full disclosure of all relevant facts relating to acts associated with a political objective;

Establishing and making known the fate of victims and by restoring the human and civil dignity of such victims by granting them an opportunity to relate in there own words the nature of the violations which occurred to the victims and then by recommend the reparation measures in respect of them;

Compiling a report providing as comprehensive as possible the nature of the violations and findings of the commission. The report must contain recommendations of measures to prevent future of violations of human rights.

Briefly stated the Commission was given for major tasks in order to achieve the oral objectives of promoting national unity and reconciliation. These were:

(a) analyzing and describing the causes, nature and extent of gross violations of human rights that occurred between one March 1960 and 10 May 1994, including the identification of the individuals and organizations responsible for such violations;

(b) making recommendations to the President on measures to prevent future violations of human rights;

(c) the restoration of the human and civil dignity of victims of gross human rights violations through testimony and recommendations to the President concerning reparations for victims; and

(d) granting amnesty to persons who made full disclosure of relevant facts relating to acts associated with a political objective

the face presented by authority, in general, was of a war against people who were disenfranchised and human dignity was the main casualty.

The mandate of the commission was to focus on what might be termed bodily integrity rights, rights that are enshrining in the new South African constitution and under international law. These include the right to life, the right to be free from torture, the right to be free from cruel, inhuman and degrading treatment or punishment and the right to freedom and security of the person, including freedom from abduction and arbitrary and prolonged detention.

The South African Path to Reconciliation

No commission can transform a society as twisted as the one in South African was and the truth commission is the best effort the world has seen and South Africa is the better for it.

Effecting reconciliation is a process which requires confronting the truth and thereafter aiming at bridging differences, healing and under standing.

A conspicuous achievement of the Commissions open policy of hearing evidence was that a large number of victims and their families were able to come forward and tell their stories. Often these stories do not fall into a part of any nquiry or trial, or if they did, were heard by very few. Much of the testimony has consisted of profoundly moving descriptions of human suffering which would have otherwise gone unacknowledged and unknown on a broader basis by the rest of society. The message has been a clear portrayal of the tragic face of South Africa.

One of the most strikingly successful aspects of the amnesty systems is that it has encouraged people to testify and resulted in the hearing of evidence which would otherwise never seen the light of day.

There are people who will argue that the commission has made none or very little contribution to reconciliation. The commission never claimed to be able to reconcile a country-reconciliation is a process that has to be achieved by the entire South African community. For us reconciliation in essence started when the Ex-President Mr. De Klerk declared the legalization of all political parties and the release of Nelson Mandela. Mr. Mandela himself then sat the pace by giving a message of unity from the time of his release and thus contributing significantly to the process of healing and reconciliation. In examining the period since 1990, one appreciates that reconciliation is a process that is extraordinarily difficult.

Professor J. Gerwel who served as the director-general of President Mandela, has this to say on reconciliation;

South Africa, not withstanding the complex divisions and differences of various sorts, the levels and intensity that may exist within it, is decidedly not an unreconciled nation, in the sense of being threatened by imminent disintegration and conflict. On the contrary, on the scale of world affairs it serves as a singularly successful example of a country with racial and ethnic diversity, histories of strife and strongly competing interests, that has resolved its potentially destructive conflicts, consensually and has demonstrated within itself the political will and institutional means to cohere.

President Mbeki has made a significant contribution to this debate by asking this question:

Whether society indeed is making progress in the creation of a non-racial and non-sexist society; whether we are healing the divisions of the past in order to achieve the peaceful coexistence of all our people. His major stress is on the eed to create opportunities for all South Africans, irrespective of color, race, class, believe or sex, and to improve the quality of life of all our citizens. He herefore explicitly defines reconciliation as the creation of a non-racial and non-sexist society, the healing of the divisions of the past, and the improvement of the qualify of life of all citizens.

In his inaugural speech on the 16th of June 1999, President Mbeki returned to the same theme:

Because we are one anothers keepers, we surely must be haunted by the humiliating suffering which continues to afflict millions of our people. Our nights cannot but be nights of nightmares while millions of people live in conditions of degrading poverty. Sleep cannot come easily when children become permanently disabled, physically and mentally, because of lack of food. No night can be restful when millions have no jobs and some are forced to beg, rob and murder to ensure they and their own do not perish from hunger. ur days and our nights will remain forever blemished as long as our people are torn apart and fractured into contending factions by reason of the racial and gender inequalities, which continue to characterized our society. Neither can peace attend our souls as long as corruption continues to rob the poor of what is theirs and to corrode the value systems which sets humanity apart from the rest of the animal world. The full meaning of liberation will not be realized until our people are freed from oppression and the dehumanizing legacy of deprivation we inherited from our past.

A particularly strong recommendation by the commission on economic justice was;

Government accelerate the closing of the intolerable gap between the advantaged and the disadvantaged in our society by, among other things, giving even more urgent attention to the transformation of education, the provision of shelter, access to clean water and health services and the creation of job opportunities. The recognition and protection of socio-economic rights are crucial to the development and the sustaining of a culture of respect for human rights.

Filipino poet J. Cabazares reminds us of the difficulties of reconciliation in his poem;

Talk to us above reconciliation

only if you first experience

the danger of dying.

Talk to us of reconciliation

if your living is not the cause

of our dying.

Talk to us above reconciliation

only if your words are not products of your devious schemes

to silence our struggle for freedom.

Talk to us above reconciliation

only if you intention is not to entrenched yourself

more on your throne.

Talk to us about reconciliation

only if you cease to appropriate all the symbols

and meaning of our struggle.

A former prisoner of the Communist regime in his native Poland speaks eloquently and thoughtfully about transformed attitudes;

The image of the enemy is a moral and political burden because you are negotiating with someone whom only yesterday you called an oppressor, a murderer or a terrorist. You promised your followers that this person would be severely punished as a reward for the oppression that they had lived through. Your followers, meanwhile, are telling you justice requires punishment. They ask how can you negotiate and talk to a person who is responsible for all the disasters of our people?

His reply is Im negotiating because I have chosen the logic of peace and not the logic of war. This means my enemy of yesterday must become my partner in a common state. He may still be my opponent but he is an opponent within peace, not within war.

I believe the commission contributed to a national process of acknowledgement, accountability, and responsibility, which has unlocked the greater possibility of a measure of reconciliation, not only for individuals, but also for the nation.

The South African Truth & Reconciliation Commission

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