From Rhetoric to Responsibility:
Making reparations to the surviviors of past political violence in South Africa
Chapter 2
The TRC's Recommendations on Rehabilitation and Reparation
by Mpho Leseka
Mpho Leseka is a former Researcher in the Transition and Reconciliation Unit at the Centre for the Study of Violence and Reconciliation.
The least publicised of the three Truth and Reconciliation Commission (TRC) committees is the Reparations and Rehabilitations (R&R) Committee. Unlike the Amnesty Committee and the Human Rights Violations Committee, this committee did not hold public hearings for either perpetrators or victims. The R&R Committee was a working committee. Based on the findings of the other two committees, it was given the mandate to develop policy on how best to assist those found to be victims.
The R&R Committee was obligated to make recommendations on offering reparations to victims for the damages they had undergone in the conflicts of the past. To this end, and according to the Promotion of National Unity and Reconciliation Act (hereafter the TRC Act), the TRC had to make recommendations to the President on:
the policy which should be followed or measures which should be taken with regard to the granting of reparations to victims or the taking of other measures aimed at rehabilitating and restoring the human and civil dignity of victims. (TRC Act, Section 40-f)
The R&R Committee made such recommendations in the final report of the TRC that was handed over to President Mandela on 29 October 1998. According to the TRC Act the policy could recommend reparation measures in the form of compensation, ex gratia payment, restitution, rehabilitation or recognition. The TRC final report makes a number of suggestions that utilised most of these measures. The President and Parliament have to decide how, or whether, the policy will be implemented.
The situation in Zimbabwe shows what could happen if the processes of reparation are not carried out properly... Western governments and corporations must acknowledge their culpability in the development and defense of what came to be called apartheid. It is in this way that western governments are liable for reparations. (Archbishop Njongonkulu Ndungane, Citizen, May 11, 2000) |
Why Reparations?
The violence generated by the political conflict in South Africa (SA) resulted in the wide-scale abuse of human rights. The TRC sees that there is a need to adequately compensate the victims of this violence if reconciliation and healing are to be achieved. In addition, to counterbalance the amnesty granted to the perpetrators, the TRC considers it vital to provide victims with acceptable forms of reparations since the granting of amnesty to perpetrators of violence precludes the right to start civil claims against them. According to the TRC Act it is the government that must accept the full responsibility for granting reparations.
In formulating the reparations and rehabilitation policy, the TRC based its recommendations upon the testimonies and information from victims, non-governmental organisations, academic institutions and church groups. In addition, when drafting the policy, the work of the domestic Skweyiya and Motsuenyane Commissions, as well as the Chilean Truth Commission was taken into account.
Legalities of Reparations
The TRC Act requires the R&R Committee of the TRC to undertake specific measures to ensure reparations to victims of human rights violations. The TRC Act was further entrenched by the "AZAPO and Others v The President of South Africa and Others" case in which the former charged that certain parts of the Act were unconstitutional, especially section 20(7) which states that a person who has been granted amnesty shall not be criminally or civilly liable. AZAPO and Others lost the case because the judge reasoned that the State is the primary grantor of reparations and there is "no reason to doubt" that the State, and not civilian entities, will assume the burden of providing reparations. Thus, the State is, in many senses, legally bound to provide some form of reparations. This is dealt with in more detail in Chapter Five.
International Legal Framework
The South African government has signed and ratified a number of international treaties that advocate the payment of compensation to victims of human rights abuse. According to the TRC final report these international agreements obligate the government to grant victims of political violence fair and satisfactory compensation for their suffering. Hence the R&R Committee recommends, based on international obligations and specifically Article 8 of the Universal Declaration of Human Rights, that the South African government provide "significant" reparations or "effective remedy".
Moral Argument for Reparations
The TRC final report argues that the South African political conflict resulted in numerous innocent victims, who were not only tortured, maimed and ill-treated but who also witnessed the destruction of whole families and communities. Thus, the TRC states that if, "we are to transcend the past and build national unity and reconciliation, we must ensure that those whose rights have been violated are acknowledged through access to reparation and rehabilitation". The TRC acknowledges that although the reparations can never fully compensate for the suffering, they can, "improve the quality of lives of the victims". The TRC final report states that if there are no reparations there can never be healing or reconciliation. The moral arguments in favour of the granting of reparations are expanded in Chapter Three.
Summary of the Rehabilitation and Reparation Policy
The TRC's reparations and rehabilitation policy considers that there are five aspects to offering substantial reparations. These are:
urgent interim reparations, which involves small financial awards - granted on a sliding scale - to victims in need of emergency assistance to cover, for instance, medical or educational requirements;
individual reparation grants - calculated according to the extent of suffering, the need for access to services and daily living subsidies - which include financial payments to victims of violations of human rights, or the dependants of a deceased victim for a six-year period;
symbolic reparation, which encompasses the erection of memorials, monuments and tombstones, the declaration of a national day of remembrance, the obliteration of criminal records of those wrongly charged in the past, the granting of death certificates, and the renaming of public places;
community rehabilitation programmes, which comprise community-based social activities for "healing and recovery", the resettlement of displaced people, and the building of local treatment centres, amongst other things;
institutional reform includes the adoption of administrative, legal and institutional steps to ensure that the perpetration of human rights violations is not repeated.
The TRC recommends that UIR and individual reparations be granted to victims of gross violation of human rights, i.e. those people who have been designated 'victims' by the Commission as well as the relatives and dependants of victims (see Chapter One for an explanation of this). The TRC's latter three recommendations are aimed at communities in general.
According to the TRC Act, the TRC was given the responsibility of recommending to the President the most feasible measures to be adopted to facilitate the granting of reparations and the institution of rehabilitative procedures which will "restore" the human dignity of the victims of political violence. In addition, the TRC Act endorses the granting of Urgent Interim Reparations (UIR). This part of the recommendations had largely been fulfilled at the time of going to print. Payments of between R2 000 to R3 500 per victim were made to about 12 000 victims. About R36 000 000 has been used to a make these payments.
Moreover, for the reparations to be disbursed, the TRC Act recommends that the President establish the President's Fund, which will co-ordinate and provide the reparations payments. The President's Fund is supposed to accumulate its finances from international donors, the national budget and the interest earned from these funds. In October 2000, there was about R340 million in the President's Fund. About 10% of this had been used for UIR.
Conclusion
As has been shown, the TRC's recommendations stretch much wider than financial grants alone. The symbolic, community and institutional focus of reparations was considered vital by the TRC. These are integrally linked to healing and restoration.
In terms of the financial grant component of the TRC's proposals, the TRC had a difficult time deciding whether it should recommend money or "service packages". In the case of monetary grants, another difficulty was deciding on the amounts to be paid. In the end, the TRC decided on a "well-structured monetary grant" instead of a service package, given that most victims indicated that they preferred monetary assistance to other forms of compensation. The grants are supposed to encourage access to essential basic services and give rise to opportunities, which would facilitate achievement of a better standard of living.
An implementing body is necessary in order to address all the measures proposed by the TRC. The debate on reparations should be far-reaching and engage the entire nation, and be viewed as a process which can enhance transformation rather than undermine it. Granting reparations should be seen as an opportunity to restore the moral and social balance of SA, rather than as a threat.
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