No closure to a hurtful past

South Africa’s democratic settlement remains tenuously balanced between promiscuous peace and victors’ justice, twin dangers often associated with political transitions.

Our much-vaunted “middle road” sought to avoid a peace that would be built on cover-ups and cosy elite deals that locked the majority out. By the same token, it also steered away from large-scale purges, prosecutions and holier-than-thou crusades against those perceived to be perpetrators, collaborators and beneficiaries of the previous regime.

For this approach the country won international acclaim. The Truth and Reconciliation Commission (TRC), arguably more so than any other transitional institution, embodied this careful balancing act. Far from perfect, the TRC helped South Africa cross a “historic bridge” from a divided past to a place where the country’s most pressing concerns – those of poverty, inequality and racism – could be addressed in a concerted and effective manner.

That this had not happened to the extent that we had hoped for cannot be blamed on the TRC. The integrity of this process, which was firmly established in 1998, is under threat, largely because of the government’s lack of enthusiasm to honour its side of the bargain.

In 1998, the TRC presented then president Nelson Mandela with 45 pages of recommendations to guide the reparation process for the 21000 victims of gross human rights violations that it had identified. For years no response, other than statements that it awaited the conclusion of the amnesty process to conclude, emanated from the government.

Then, five years later – on Human Rights Day in 2003, the TRC handed the final two installments of its report to then president Thabo Mbeki in Parliament. The volumes addressed many challenges that had arisen after 1998 when the TRC ceased to operate except for some outstanding amnesty-related cases that dragged on for another five years.

When Mbeki’s response came in April 2003, about a month after the final report had been received, the victim community responded with profound disappointment. Mbeki indicated that individuals would receive only once-off payments of R30000 for each individual, instead of the TRC’s recommendation of a pension for six years, premised on the minimum wage at the time. This would have been an amount approximately six to seven times more than what the government was offering.

To those who had lost the ability to work, sacrificed a breadwinner or loved one, or who continued to suffer psychological trauma, R30000 was more an insult than a relief.

Timeous and generous reparations would have been the right thing to do. It would have kept our promise to those who paid the highest price for our freedom. We have failed that test. Not only does this jeopardise the legacy of one of the world’s most potent political achievements, but it leaves a gaping hole in our nation-building project.

Archbishop Emeritus Desmond Tutu, at an event of the Institute for Justice and Reconciliation (IJR) some time ago, remarked that Mbeki “hated the TRC”, hence the lukewarm response from his government. Today most of the TRC recommendations, including the 300 names that it handed over for prosecution, have virtually been forgotten.

Ten years after Mbeki’s announcement, and 15 years after victims made their statements to the TRC, 16397 beneficiaries had finally been paid, with 44 cases still remaining.

In the interim, the Justice Department, where the government located its TRC unit, also oversaw a limited number of exhumations of the remains of activists which were returned to the families for a proper burial and, hopefully, closure.

The Justice Department is awaiting feedback from its counterparts in the Health and Education departments to finalise regulations for assistance to victims. Infrastructural assistance (probably some form of housing grants) and broader community rehabilitation (repair of health clinics, community recreation and conflict-resolution centres, schools, as well as electricity and water supply) are also still being considered for communities identified by the TRC as those who bore the brunt of apartheid’s excesses.

Such a comprehensive approach is to be welcomed but may amount to too little, too late.

The passage of time has seen a steady increase of victims coming forwarded, due to what Khulumani Support Group describes as inadequate outreach by the TRC. For this reason, it argues, the government ought to find ways to include those who, for whatever reason, could or did not participate in the original process. After all, it was willing to afford perpetrators a second go at amnesty. The government, in turn, has refused to entertain the demand and there is little hope for it to do so now. The response opens the door to a fresh round of challenges and unhappiness, once final reparations are paid.

Reparations are meant to bring closure to a hurtful past. In our case, it seems to have achieved the opposite.

On Human Rights Day it is worth remembering that reparations are an established international human right, enforceable by international law and building a steady international case-load as more and more countries embark on reparation programmes. Only recently the International Criminal Court made its first ruling on the right to reparations for victims of international crimes.

International law, furthermore, holds individual states primarily responsible for reparations of genocide, war crimes and crimes against humanity. This means that the ANC’s reluctance to pay for apartheid-era abuses is not excusable. The South African state enjoyed legal continuity throughout the political transition. Regardless of who occupies the Union Buildings, the South African state owes reparations to those who suffered under its hands before 1994, and its administrators should find the means to do so, not least in a relatively wealthy country such as ours. After all, we regularly find billions to host international sporting events.

South African citizens are concerned about police brutality, excessive levels of violence against women and children, organised crime, a struggling economy and a generation of young people being denied adequate education. In such a context, you can see how apartheid-era reparations can seem like a quaint non-priority, and how politicians today, can dismiss this agenda as largely irrelevant in the bigger scheme of the national development agenda.

But they would be dead wrong to do so.

South Africans, more than most, know how potent a force political symbolism can be. Apartheid symbolism destroyed our collective confidence. Mandela’s symbolism pulled us from the abyss and set us on a different course. Apart from the concrete material assistance, reparations carry massive symbolism. It is the symbol of restoring the dignity of those most helpless under a previous order, of saying never again, and of a human-centred democracy.

This part, at least, we seemed to have gotten wrong. It would perhaps be an overstatement to say this was fatal to national reconciliation, but this omission did compromise what could have been a far more meaningful process. Although it is too late to undo all the damage, a comprehensive and well-run reparations programme, even as late as this, could be a powerful antidote to the unravelling of our hard-won peace.

Fanie du Toit is the executive director of the Institute for Justice and Reconciliation. A version of this article first appeared in The Star here.

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