Evaluating Transitional Justice in South Africa From a Victim's PerspectiveSkip other details (including permanent urls, DOI, citation information)
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In 1995, South Africa established the Truth and Reconciliation Commission (TRC) to address abuses committed during the apartheid era. The decision itself is hardly novel. By that stage, more than a dozen countries—concentrated in Latin America—had opted for this approach in the wake of transitions from periods of non-democratic rule, war and civil conflict. Over the ensuing years, another 16 commissions were established around the world, including ones that remain ongoing.
Instead, the significance of the TRC lies in the creative efforts to improve upon the results achieved by its predecessors. A key aim was to forestall the claims of injustice that are commonly levied by victims of past violations. From their perspective, the absence of conventional legal accountability for perpetrators of abuses, which is characteristic of transitional justice processes that involve a truth commission, challenges basic notions of fairness. With this in mind, several innovations were implemented to promote a more open, inclusive and transparent process.
One significant enhancement, undertaken by the TRC's Human Rights Violations Committee, was an extensive statement-taking process, whereby individuals had the chance to detail the abuses they or a close family member had experienced. Over 22,000 South Africans—of all races, but predominantly black—ultimately took advantage of this opportunity. These statements were later the basis for declarations of victim status and payments of Urgent Interim Reparations—modest amounts generally in the range of R2000-5000 (approximately $300-800 at the time)—between June 1998 and early 2000, as well as 'final' reparations of R30,000 (currently about $5,000) beginning in November 2003. In addition, roughly 2,000 individuals, or about 10 percent of those who submitted statements, were invited to testify about their experiences in public hearings held in nearly 80 communities around the country.
Another original feature of the TRC was the requirement that perpetrators formally apply for amnesty in respect to specific gross violations of human rights (murder, torture, etc.). The Amnesty Committee also imposed the criteria that applicants must provide the full truth regarding these incidents and demonstrate a political motive to warrant their actions. The final stage consisted of hearings, at which applicants were subjected to examination by TRC authorities and confronted by the victims or their families, if they so desired. This setup contrasts with the shielding of perpetrators by most other truth commissions.
Both the victims' and amnesty hearings were afforded extensive media coverage, including live broadcasts on radio and TV, daily summaries in newspapers, and publication of verbatim transcripts on the TRC website. The implicit assumption is that greater awareness of and engagement in these mechanisms would mitigate the reflex response from a large segment of the population that amnesty for perpetrators—if not the process as a whole—is fundamentally unfair.
Many commentators have lauded the accomplishments of the TRC, which is not to say it has no detractors or has been entirely immune to controversy. A number of the significant debates have played out in the courts, including the 'court' of public opinion.
Soon after Parliament passed the Promotion of National Unity and Recon-ciliation Act (No. 34 of 1995), the families of several political activists who had died under suspicious circumstances, including Steve Biko and Griffiths Mxenge, challenged the amnesty provision in the newly created Constitutional Court. In the ruling upholding the Act, Chief Justice Ismail Mohammed cited the provisions for reparations as a satisfactory substitute for the right of individuals to seek redress in criminal and civil courts (The AZAPO Case). Although the TRC eventually denied a number of prominent amnesty applications—most notably, for the Biko and Chris Hani murders—other successful petitions raised the ire of victims' families and the general public. Even after the TRC concluded, reparations remained an ongoing point of contention. In the face of the government's apparent reluctance to disburse monies it had promised and allocated, two separate consortiums of local organizations filed suit in 2002 seeking compensation from U.S. corporations that had dealings with the apartheid regime.
Each of the major political parties took umbrage at some aspect of the TRC. Ex-State President P.W. Botha defied a subpoena and balked at cooperating with the TRC. The African National Congress (ANC), surprised by the attribution of responsibility for abuses to both the government and the ANC-led opposition, filed suit with the Constitutional Court in an attempt to block the release of the TRC's 'final' report, which was eventually published in October 1998. Mangosuthu Buthelezi, leader of the Inkatha Freedom Party (IFP), later filed suit over statements in a codicil to the final report that blamed the IFP for helping foment violence. The case held up publication for several months before it was settled in January 2003.
At the same time, public opinion surveys indicated a split in whites' and blacks' attitudes towards this process. Reacting to one set of poll results, TRC Chairman Desmond Tutu asserted that whereas the majority of blacks embrace reconciliation, whites are generally far less accommodating.
While causes for concern, such phenomena are hardly unusual; similar controversies have arisen elsewhere. Efforts to hold former leaders, officials and members of the military and security forces accountable are ongoing in many countries, even despite amnesty laws that remain on the books. Argentina and Chile have been most prominent in this regard—recent court decisions may pave the way for the reopening of cases or the reconsideration of transgressions by the leaders of prior regimes. Several such campaigns—including in Argentina, as well as in El Salvador, Guatemala and Uruguay—were previously scuttled under apparent pressure from the military and other conservative forces. The frustrations associated with domestic channels have led some to resort to other avenues such as the Inter-American system and foreign courts. Persistent racial, ethnic, class and ideological divisions also tend to complicate progress toward social unity and reconciliation—Rwanda is an obvious example.
These concerns point to the importance of knowing what exactly transpires as a result of conducting a truth commission. Such information is valuable for the appraisal of completed undertakings, as well as for future deliberations about whether to adopt this approach in other settings.
Analyses of the impact of truth commissions traditionally focus on outcomes such as regime stability, political unrest and violence, and inter-group tolerance and reconciliation. Surprisingly, empirical studies of the responses of victims—whose experiences are, after all, the subject of these processes—are noticeably lacking in the literature.
Consequently, a host of basic questions have yet to be thoroughly evaluated: What do victims think about these commissions? Do they seek to engage the process? Are their interactions positive or negative? Do their impressions change over time? Do their experiences with these processes affect their political outlooks? What factors and circumstances shape these outcomes?
In the South African case, there is also the vital issue of whether the TRC has succeeded in its aims by instituting a more participatory approach. Some measure of discontent is to be expected, but did the novel aspects of the process actually mitigate the extent of dissatisfaction? The public controversies may not be indicative of sentiments present among the community of victims. Or have the amnesty, the failure to disburse on reparations, and other considerations undermined victims' confidence in both the TRC and South Africa's new political dispensation?
Cape Town Study
With funding from various U-M sources (Center for Afroamerican and African Studies, Department of Political Science, Rackham Graduate School, South African Initiatives Office) and the National Science Foundation, as well as assistance from local NGOs (Centre for the Study of Violence and Reconciliation, Khulumani Support Group), I conducted a study in communities around the Cape Town area. The centerpiece was a survey of three cohorts of victims: those who gave a statement to the TRC, those who testified at the local hearings, and those who did neither. For this purpose, I employed a team of nine field workers. They used multi-lingual questionnaires I developed, drawing upon as models the questionnaires that were employed for a parallel collaboration—on which I worked—between CSVR and former U-M faculty member Dr. Jeffrey Sonis in the Johannesburg area and the national surveys by the Institute for Justice and Reconciliation. In addition, I arranged in-depth follow-up interviews with 16 respondents out of the original sample of 228.
My analysis of these quantitative and qualitative data yields several key findings. First, responses are hardly monolithic. Instead, most victims are ambivalent, if not deeply conflicted, and their views fluctuate over time as a function of their exposures to different stages of the TRC process. Despite reservations, many indicate that they were optimistic about what the process could yield, cite benefits from having taken part, and are generally satisfied with their decision to do so.
Few believe, however, that they have received justice as far as the handling of their particular circumstance of victimization. Their misgivings emphasize substantive considerations (punishment, reparation, etc.) more so than procedural dimensions. There are also frequent demands for the alleviation of social, political and economic inequalities. In that sense, the TRC pays the price for the lack of transformation as well as the paltry reparations program. Thus, even if this exercise has been constructive for the nation as a whole, the cohort of victims remains largely unfulfilled.
The bright side is that involvement in the process tends to moderate the extent of disapproval, as theorized, though the effects are inconsistent. Whereas giving a statement generally exerts a positive influence on victims' perceptions of justice, testifying has no marginal impact. Moreover, these views are modulated by evaluations of the process itself. A paradoxical aspect of participation—some victims actually feel a greater sense of injustice by virtue of their exposures to the TRC process—is explained by a cycle of increased expectations leading to greater disappointment. This, in turn, can be traced to poor organization and planning, insufficient capacity and inadequate programs of outreach and follow-up. The implications, therefore, are contingent: truth commissions have an upside if they are executed appropriately, but a downside if they are not.
Yet my study offers no indications that victims' critical responses to the TRC process have prompted them to disengage from politics or undermined their support for the new democratic dispensation. Instead of taking the 'exit' option, many have opted for 'voice' via standard conduits of political participation—voting, membership in civic organizations, etc.
A good example is Khulumani, which originated in CSVR's trauma counseling sessions for victims of apartheid-era abuses. In 1995, this framework was converted into a formal association, in part to represent victims' interests before the TRC. Khulumani has since expanded to all nine provinces and now has more than 20,000 members. In addition to activities at a community level, it assumed an active role in policy debates, spearheading demands for the South African government to deliver upon its promises of reparations. Khulumani's frustrations in the latter regard induced the organization to become a plaintiff in one of the reparations lawsuits. The government has since initiated the payment of final compensation—albeit considerably less than the R17,000-23,000 annual payments over six years recommended by the TRC—to individuals who were officially recognized as victims.
These efforts are emblematic of the complex dynamic processes that manifest in nascent democracies, where previously disenfranchised and oppressed communities struggle for appropriate legal and social recognition. Again, a key variable in the future path of development is whether such individuals maintain a fundamental loyalty to the political system. Khulumani's activities clearly place the government under a certain amount of stress, which presents a potential risk of overload. This organization and others like it have done so, however, largely by resorting to grass-roots activism and making use of available institutional channels for redressing grievances, rather than engaging in retributive violence or employing other means that could seriously threaten the foundations of the new democracy. Thus, even the responses to perceptions of injustice among victims augur well for the country's promising future.
David Backer is a Ph.D. candidate in political science at U-M.
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