20 years after the TRC: Are we any the better?

Author: Thabang Mokgatle
Candidate Attorney, Rushmere Noach Incorporated, Port Elizabeth, South Africa

“We are looking to maintain not retribution but reparation; we are seeking room for humanity rather than revenge”
– Desmond Tutu, First hearing of the TRC in April 1996

15 April 2016 marked the twentieth anniversary since the Truth and Reconciliation Committee (TRC) first commenced in South Africa. In reflecting on the occasion, the words of Desmond Tutu above quoted have unveiled two pertinent questions:  Did post-apartheid South Africa, in 1996, require a moment for justice or for reconciliation? Would the pursuit of the former in the first instance, not have led to the achievement of the latter? There is a growing sense that in prioritising the ‘rainbow nation’, the TRC substantially undermined the realisation of justice (institutional justice through the court system). Victims of apartheid-era crimes have supposedly been short-changed, leaving much to be desired since the TRC first convened.

Truth and reconciliation is a concept neither conceived in nor unique to South Africa. The model first presented itself just over five decades ago in Uganda, and soon gained popularity in Latin America in the 1980s. The model is inherently a project of the State, funded by both government and global role players, with the aim of exposing human rights grossly violated during periods of conflict. As is underscored by its name, TRC is by nature a “social intervention”, a vehicle for transition reinforced by the ideals of peace and cohesion in an already divided nation. The conclusion of a TRC hearing is to be proceeded by detailed reports, the purposes of which are to make recommendations to government and warn against future repetition of atrocities once committed.

In mid- transition South Africa, political negotiations and debates surrounding the provisions of the Indemnity Act of 1990 (and later Further Indemnity Act) prompted the establishment of the TRC. Both Acts were legislated to oversee the status of political prisoners, those in exiles and the prospects of amnesty for those – members of political parties included – who were responsible for human rights violations. The TRC was supported in its mandate, by the establishment of three ancillary committees namely: The Human Rights Violations Committee (HRV) – tasked  with investigating gross human rights violations and tracing the victims to come forward and tell of their experiences;  the Reparation and Rehabilitation Committee (R&R) – which received victims who had testified under the HRV to restore to them and their families a sense of dignity and developing policy frameworks which encouraged healing across the country. Lastly, the Amnesty Committee (AC) which afforded perpetrators of gross human rights violations the opportunity to apply for conditional pardon, requiring full disclosure and the assurance of no future prosecution.

It is the scope and powers of the AC which has distinguished the South African TRC from its counterparts around the world – and which has earned it much criticism at home. As Patricia Campbell indicates, the South African TRC model falls within the camp of the ‘pragmatics’ – a midway approach between those in favour of full out prosecution (maximalists) and those who expressly reject prosecution (minimalists).  According to pragmatics, the pursuit of prosecution as a means of dealing with injustice is dependent on the political climate and the nature of the transition in question. If prosecution presents a threat to the process of peaceful transition, the pragmatic’s response would be to avoid prosecution and promote reconciliation over retributive justice.

And this is precisely what characterised the TRC in the South African context. Democracy was in its infant stages, and the emphasis on restorative justice was seen as a method of preventing the eruption of a hot conflict – a full blown civil war. Amnesty was essentially a safeguard for those guilty of gross violations under Apartheid.  A negotiated exchange of democratic liberty for no prosecution and sustained economic monopoly.

The irony of a model which promotes amnesty, lies in that amnesty requires a departure from the rule of law, asking of the victims “…to respect the law their violators did not”. To this extent, many have argued that the TRC in South Africa was really a project to protect the political elite – achieving the obvious: reminding victims of their past, without affording them due process and consequence for the actions of perpertrators.

Chairperson of the Khulumani Support Group, Tshepo Madlingozi, takes his criticism a step further and argues that the TRC in South Africa employed a ‘top-bottom’ approach –  disempowering victims by making them ‘participants’ in the process instead of active adjudicators of justice. The Khulumani Support Group is a social movement, created to support victims and survivors of apartheid. Madlingozi classifies the TRC as being part of a ‘Transitional Justice’ project, a concept he argues only prioritises political stability over true social transformation.

As part of the legal component of conditional amnesty implemented in the South African TRC, government was required to refer for criminal prosecution all cases where perpetrators had not pleaded for amnesty following the hearings. Around eight hundred cases were passed on for potential prosecution by the TRC. But very few of these have reached the stage of successful prosecution, with government suspending further prosecutions at one stage to develope “guidelines” that would assist the National Department of Public prosecutions to”…balance the sensitivities of national reconciliation” when considering legal action.

To argue that the TRC in South Africa had no impact at all, would go to trivialise the cathartic process the hearings initiated for many of the victims who chose to come forward and tell of their experiences. What begs the question however, is whether the process of ‘telling’ alone was enough. After conducting interviews with victims and survivors, both in South Africa and  contexts like El Salvador where TRC was implemented, results indicate that many victims held high hopes of what participating in TRC proceedings would bring – the right to hear the truth followed suit by a right to exercise justice through the courts. A decision clearly not left to the victims in the South African context.

Returning to the questions posed at the beginning of this article: one must recognise that the right to truth and the right to use the arm of justice are not mutually exclusive as concerns true reconciliation.  In order to have a holistic sense that justice was done and not just seen to be, the option to prosecute should not only be available – but diligently executed as the preferred means of justice. Some may argue that this approach negates from reconciliation and peace – I guess it depends on which side of the fence one stands. In the words of Mpho Tutu on the twenty year anniversary of the TRC in South Africa: “The law can sometimes do more harm than good. But sometimes, the law wakes us up, and reminds us of our duties to discuss as fellow human beings the questions the plaintiffs raise”.

About the Author:
Thabang Mokgatle is a final year Candidate Attorney at Rushmere Noach Incorporated in Port Elizabeth. She obtained her BA in Legal Theory and Political Studies (2013), as well as her LLB (2015) from Rhodes University.  In 2013, she was selected as one of two representatives from her Alma mater’s Law Faculty to participate as a Judge in a Moot simulation of the International Criminal Court – hosted annually by the Kreisau-Initiative in Berlin Germany. She was invited back as a co-trainee for the Judges team in 2014. She is founder and board member of BaRudisi ba Sechaba- a fledgling NGO with a core focus on volunteerism and developing leadership through service. She takes keen interest in Human Rights and International Humanitarian Law issues, amongst others. She is passionate about Justice and development on the African continent.