Reconciliation in a human rights framework

JODY KOLLAPEN asks whether reconciliation has ever truly become a national project.

At the time of South Africa’s transition to democracy, the idea of reconciliation, which incorporated the concepts of forgiveness and amnesty, bringing together victims and offenders, and extinguishing civil and criminal liability on the basis of full disclosure of crimes committed under apartheid, was met with considerable resistance from human rights activists.

Opponents argued that adherence to human rights principles, particularly in the context of the brutal and systematic nature of apartheid, required nothing less than accountability and justice. Many held that these imperatives of accountability and justice were fundamentally compromised in the model of reconciliation agreed upon by the National Party (NP) and the African National Congress (ANC).

Although reconciliation was generally understood to have a wide remit that extended beyond the limited parameters of the law, it was predictable that its scope would by and large be shaped by the law. Many found comfort in locating reconciliation purely within this narrow and technical framework.

And so, fifteen years into democracy, when we are confronted by the polarised public reaction following University of the Free State Vice-Chancellor Jonathan Jansen’s announcement of the withdrawal of charges against the students responsible for the racist ‘Reitz Hostel’ video, some ask – ‘Is reconciliation dead?’

Perhaps the more appropriate question is, ‘Did reconciliation ever become a national project?’ An honest answer might well be, ‘Yes, it became a well-worn slogan, but was hardly understood or internalised.’

While South Africa’s model of national reconciliation was being developed in the early 1990s, the human rights framework also began to evolve, culminating in what has been described as a progressive and courageous constitution, which incorporates a Bill of Rights among the best in world, spanning the full spectrum of civil, political, social and economic rights.

This human rights framework was very much a part of a constitutional dispensation seen as transformative, and aimed at building and consolidating a new social order committed to social justice – and was required to be interpreted in that fashion. Advancing reconciliation and reconstruction were key features of the transformation process, and the Bill of Rights was intended to serve as a mechanism to advance those political and social imperatives.

An unintended risk, however, was the possibility that the Bill of Rights would be seen simply as a means to entrench existing rights, and in doing so, provide the basis indeed to resist the transformational and reconciliatory objectives of the constitution. While poised to become a significant tool of national transformation, the Bill of Rights could also be used as a significant weapon in the armoury of those who sought to retain the status quo.

Despite these risks, one of the areas in which we are able to claim great successes has been in promoting and achieving greater equality. Our rights framework has enabled South Africans to confront and deal with prejudices about ‘the other’ – women, gays and lesbians, foreigners, and those of different cultural, religious and linguistic groups. Legislation, including amendments to recognise same-sex marriage, the advocacy work of the ‘Chapter Nine’ bodies, and the rulings of our courts – including the Constitutional and Equality Courts – has seen stereotypes and assumptions about worth and excellence challenged, and has advanced the concept of a common humanity quite significantly.

However, our legal and policy strides have not necessarily translated into changes in social attitudes. Racial tensions and violence, attacks on non-nationals, and the ongoing persecution of gays and lesbians, provide compelling and disturbing evidence that we have yet to internalise the value of equality, beyond its utility as a legal concept.

In particular, there has been little recognition of the idea that to the extent that certain languages, cultures and religions were privileged during apartheid, true reconciliation would require deliberate and disproportionate attention to those that were neglected. Perhaps even some displacement is necessary. Instead of witnessing magnanimity and generosity of spirit from whose who enjoyed the privilege of being white for so long, we have encountered bitter resistance to the changing of names, the adoption of new and inclusive language policies, affirmative action, land redistribution, and anything that appears to question or threaten the continuation of past privilege.

In respect of socio-economic transformation, a recent report by the University of Cape Town has found that South Africa consistently remains the most unequal society in the world. The phenomenon of ‘permanent’ service delivery protests suggests that we have failed to give substantive effect to both the transformative and reconciliatory objectives of our new constitutional order.

In reality, and from a public resource perspective, South Africa is able to ensure a ‘better life for all’. Buoyed by a strong Constitution, we should have bridged the gaps and divides that existed prior to 1994. Instead, these have increased, and in the process a severe blow has been dealt to prospects for social integration.

Encountering separate and unequal systems of delivery of social goods remains commonplace. Two healthcare systems exist: one that over-services the rich and another that under-services the poor. Our two education systems produce widely different outcomes in developing the potential of our children. These and other examples confirm that the idea of a nation ‘united in diversity’ remains a hollow slogan that means very little in the lives of ordinary people.

It is becoming increasingly evident that South Africans are unwilling to measure the extent and impact of democracy through the adequacy of electoral processes, or the comprehensiveness of our human rights instruments. More and more, citizens are legitimately demanding improvements in their lives. And more and more, these demands fall on deaf ears within the state, and among those who enjoy ‘the better life’ and are unable to see that social exclusion and the failure of the rights discourse to deliver are the greatest threats to our fragile democracy.

After 15 years of democracy, we may have been seduced by the notions of a ‘rainbow nation’, and the ‘miracle of the transition’. However, what is evident is that we are an ordinary nation, though one that has in the past demonstrated the capacity to do extraordinary things.

We now require a new commitment from all South Africans to develop the will and capacity to once again do the extraordinary. Now, our task is relatively straightforward – it requires recognition that if we seek to build a sound and stable social order, the starting point must be acknowledging that our futures are intertwined, that our abundant national resources are more than sufficient for our collective needs, and that the generosity that accompanied our transition is now necessary to bridge a deeply divided society.

If South Africans can achieve this, we may yet succeed in ensuring that true reconciliation indeed becomes a national project, rather than prematurely pronouncing on the death of something that hardly ever existed.

Jody Kollapen served as deputy chairperson of the South African Human Rights Commission from 1996 to 2002, and chairperson from 2002 to 2009.

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