From Rhetoric to Responsibility:
Making reparations to the surviviors of past political violence in South Africa
Chapter 3
Common Guilt or Common Responsibility?
Moral Arguments for Reparations in South Africa
by Michael Lapsley & Karin Chubb
Fr Michael Lapsley, S.S.M., is Director the Institute for Healing of Memories.
Karin Chubb is the former Vice-President of the Black Sash.
The Truth and Reconciliation Commission (TRC) came into being as part of a negotiated settlement to ensure a peaceful transition to democracy in South Africa. It was a moral response to the evil of apartheid. The Promotion of National Unity and Reconciliation Act (hereafter the TRC ACT) of May 1995 gave a mandate to the TRC to, inter alia, make recommendations for reparations to victims of human rights violations. The mandate of the TRC is outlined in Chapter One and Chapter Two of this booklet.
The integrity of the entire TRC and, particularly, its credibility as a moral force, hinges on the reparations issue. The TRC Act itself allows only for restorative justice and prevents other forms of justice once amnesty has been granted. It takes away the individual victims' normal rights to pursue justice through the courts and to achieve compensation or, at least, satisfaction to the degree possible in the criminal justice system. Under the TRC Act, the victims and survivors have to trust that the moral commitment made by the State when it established the TRC will be honoured through the implementation of a comprehensive and effective reparations policy.
It is important, in the light of subsequent events and arguments put forward by the government, to justify any delays on reparations. Government also needs to understand that victims and survivors came forward on an individual basis. The government has spoken against individual reparations on the grounds that many millions of South Africans were victims of apartheid. However, relatives of victims, survivors and perpetrators appeared before the TRC as individuals. To recognise the individuality of a perpetrator by granting him (we do not know of any women who applied for amnesty) amnesty for human rights violations and not to recognise the individuality of victims contradicts the sense of balance that accompanies restorative justice. Relegating victims' legitimate individual claims to a nebulous group identity undermines the law on which the TRC is founded. If these claims are not honoured, there will be tragic consequences in terms of trust in the law.
Why were Victims and Survivors Prepared to Trust the TRC?
In some cases, deep misgivings and hostility were expressed to the TRC. Some families and survivors refused to come forward to testify before the commission. They did not want the perpetrators to have the chance to apply for amnesty and thus escape the legal consequences of their actions.
AZAPO and Others went to the Constitutional Court to argue that the granting of amnesty violated the constitutional right to justice. Although the case was dismissed, Judge Didcott pointed out that:
Reparations are usually payable by States, and there is no reason to doubt that the postscript envisages our own State shouldering the national responsibility for those. It therefore does not contemplate that the State will go scot-free. On the contrary, I believe, an actual commitment on the point is implicit in its terms, a commitment in principle to the assumption by the State of the burden. (Azanian People's Organisation and Others v President of the Republic of South Africa and others (SA) 671, 1996)
However, many more chose to tell their stories before the commission and they thus accepted the possibility that those who were guilty of inflicting gross human rights violations might be granted amnesty in return for nothing more than telling the whole truth and reparations.
Why were people who had already suffered so much then ready to trust the TRC process to such an extent?
One reason is the human need to tell the story and to have the truth acknowledged by wider society. Another is the hope of finally hearing the whole truth in the amnesty proceedings. A further reason lies in the nature of the new State itself. A democratic government that victims had longed for, and in whose cause so many of their loved ones had suffered and died, was in power. They saw the government as able to restore the justice that had been denied to most of the country's people.
Apartheid inverted the moral order
The very essence of apartheid inverted the values and the justice system on which a free society is normally based. Under apartheid, evil was legally enforced and rewarded. Dispossession of property was legalised on a huge scale, murderers and torturers within the police and security forces were acclaimed by cabinet ministers and were promoted in the ranks. Policies were based on denials, deceptions, betrayal and deceit. Young conscripts had to fight and die in a war which, for years, was denied at the highest levels of government. The apartheid government's contempt for all its citizens was clearly expressed in the operation of its webs of secrecy and censorship, and in the entrenchment of mistrust and suspicion that permeated all parts of society.
The highest executive of the apartheid state, its last President, F.W. de Klerk, demonstrated very clearly, in his appearance before the TRC, that he was willing to betray the trust of everyone who had served under him. In the hearing all present were treated to the unedifying spectacle of a chief executive who, having carried ultimate political responsibility for the implementation of policies that led to monstrous human rights violations, could do nothing more statesmanlike than absolve himself personally from all blame - clearly inverting moral order and responsibility.
Allegations of violations of human rights were also made against the ANC in exile. The ANC set up the Skweyiya and Motsuenyane Commissions to investigate these allegations. In its response to both commissions, the ANC took the moral high ground by freely admitting to human rights violations in the pursuit of its just war. It clearly indicated that, while it had fought a just struggle, it had also transgressed its own moral values.
At that stage, the future leadership of the new South African government indicated its commitment to the reconstitution of a just social order and its readiness to accept the supremacy of the law. This must have been a major reason why victims and survivors were prepared to undergo the trauma of testifying before the TRC. They believed that justice would be done to them as individuals under the new government that they had helped to bring about.
Apartheid's Legacy: A Damaged Society
The establishment of the TRC was one important force in the moral reconstruction of a damaged society. It was a major pillar of the "bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights..." (TRC Final Report, Volume 1, Chapter 5, p.103). The apartheid system benefited a few and deprived the majority. It also damaged the moral fibre and integrity of the entire nation. Widespread contempt for the law was the result of decades in which most people in this country experienced the law as hostile to them, working only to the advantage of the few. The levels of crime and corruption experienced today are, surely, a consequence of this.
Privilege gained directly or indirectly through exploitation and suffering, in most cases, became the natural way of life and an accepted 'right' for those of us who were born White. A relatively peaceful transition to democracy has continued to blind many of us to the responsibilities that flow from past violations and inequalities. The lack of general interest in the TRC proceedings, especially on the part of White South Africans, is a case in point.
Arguably the most serious consequence, and the area where reparation and rebuilding are needed most urgently, is in the damage done to the youth: the generation which in any society is the most vulnerable and most in need of care and nurturing. They have been brutalised, traumatised, made cynical, robbed of security, a future and dreams. Testimony given in the Youth Hearings and other Human Rights Violations (HRV) hearings of the TRC provided ample evidence of this.
On both sides of the conflict, raw, untrained and often completely uninformed youths, were used as cannon fodder. It is characteristic of most liberation struggles that very young foot soldiers are used. In South Africa, young recruits were drawn into the conflict and often carried out missions without basic training, or infrastructural backup and security. Frequently, they did not survive. Those who did were often tortured and traumatised to such an extent that their psychological healing is, at best, extremely fragile.
Young children were robbed by violent conflicts around them of the basic rights of family, care and shelter. Many suffered severe psychological trauma as well as physical injury simply by being where they believed they would be protected.
In addition, vast numbers of young people missed out on even minimally adequate schooling through the iniquitous Bantu Education System. In addition, there was a ruinous political strategy, embraced by some, that enrolled schoolchildren into active conflict under the banner of 'liberation before education'. At the hearings of the TRC, a number of young survivors have voiced their demands for reparations in the form of preferential educational bursaries and continuing psychological counselling so that they have chance to rebuild their lives. Our new State, and indeed our whole society, needs to take cognisance of the disillusionment among many of the young people who feel very strongly that political change would not have happened without the sacrifices of the youth.
Through indoctrination, censorship and an authoritarian Christian National Education System, White conscripts were drafted into a war against their fellow citizens in the townships, or in neighbouring countries. Relatively few of these young people had the benefit of a wider vision and the strength and support necessary to resist conscription. They, too, are part of a damaged young generation that has to be healed and for which society as a whole needs to take responsibility. It is interesting to note that in the last few months, young Afrikaners have been posing angry challenges to their elders who were the first generation of Afrikaners to ever send their young into a war that served to preserve their own privileges.
Common Guilt or Common Responsibility?
The TRC dealt with all who came before it on an equal basis. Both perpetrators and victims from all sides of the conflict had the right to appear as individuals. The perpetrators had the benefit of legal counsel to argue their case. The victims had the recognition of being heard and the prospect of reparations. The balance is a crucial one for the moral legitimacy of the TRC and there is a consequent moral responsibility by the State and by the nation as a whole.
The breadth of the hearings in both the HRV committee and the amnesty committees makes it impossible to shift responsibility for all violations onto a few major criminals. While the broader oppression of apartheid was not a focus of the TRC, it became clear through the public hearings that evil was done on a broad scale and no South African can ever, in future, claim not to have not known.
This raises the issue of guilt and acknowledgement. The German philosopher, Karl Jaspers (forthcoming, 2000), defines moral guilt as wide-ranging and including criminal, political and military actions, as well as indifference and passivity. He goes on to suggest that only the acceptance of culpability can provide the opportunities for a new national beginning. In terms of the moral trajectory of the TRC, this shifts the responsibility of acknowledgement to the nation as a whole. Thus, as Jaspers argues, we are required to accept responsibility for the history of which we are a part.
In a surprising application to the TRC's amnesty committee, a group of young black people applied for amnesty for apathy. In their application they argued:
That we as individuals can and should be held accountable by history for our lack of necessary action in times of crisis, that none of us did all of what we could have done to make a difference in the anti-apartheid struggle, that in exercising apathy rather than commitment we allow(ed) others to sacrifice their lives for the sake of our freedom and an increase in the standard of living. (Unpublished application to TRC)
Whether the TRC will make a lasting contribution towards moral reconstruction and renewal in South Africa hinges on two factors. Firstly, the acceptance of responsibility for the past, especially by those who benefited from apartheid, and secondly, the formulation and implementation of an effective reparations policy. According to the laws the government itself has passed, the latter is the responsibility of the State.
One of the failures of the TRC process was that, on the whole, the White community did not engage with it. A clear reparations policy formulated and administered by the State, but involving all sectors of civil society, would open constructive ways in which we all could take responsibility for our history.
What if the State Fails?
It must be stressed that all who testified before the TRC understood that implicit within the TRC was the obligation to recommend reparations. Expectations were raised by TRC commissioners themselves in many of the HRV hearings. Commissioners routinely asked victims what they would like the TRC to do for them. Unfortunately many survivors did not, and do not, realise that the obligation for reparations does not rest with the TRC, but with the State. The TRC has been criticised and even vilified for not achieving something which, from the outset, it was neither empowered nor designed to accomplish.
Those who took their cases before the TRC have been failed three times. First, by the apartheid system, secondly, by the fact that in appearing before the commission they have forfeited their right to the use of the existing justice system and, thirdly, because promises of restitution by this government have, so far, proved hollow. As we fail to keep our promises of gravestones, monuments, heroes' acres, bursaries for victims and their children... As we fail to provide emotional, medical and social support, so we fail the world at large. (Archbishop Njongonkulu Ndungane, Saturday Argus, April 29/30, 2000) |
Clearly, if reparations are inadequate, the question will be asked as to who benefited from the TRC. Apart from the staff of the commission and highly paid lawyers, it is mainly the perpetrators who will have benefited. From the beginning, the amnesty provisions created the suspicion that the TRC would favour perpetrators rather than victims. Already, the treatment of perpetrators has deepened the anger and pain of victims. Many feel that the condition of proportionality has not been taken into account sufficiently, or that the truth as they saw it, or knew it, has not been told. Credible and satisfactory reparations would help to address this anger. If there are no reparations, or if there continue to be only minimal tokens, the judgment of history will indeed be that the TRC was a perpetrator-friendly exercise, a moral tragedy for all South Africans.
In addition, enormous damage would be done, at all levels, to the trust in a new democracy and to any faith in the rule of law. If the State fails to deliver reparations, comparisons will be made between an allocated expense of a proposed 43 billion Rands on defense over the next ten years and an individual reparations budget (for the financial component) estimated at 3 billion over six years. Under apartheid, defense and security spending overrode all other concerns. The victims will ask whether we are heading down that road again?
If the State fails, there will be disastrous longer-term consequences. The TRC will have left not so much a legacy of reconciliation, but a community of embittered and angry people. The inversion of justice and moral order, which we inherited from the apartheid era, will continue.
In concluding, we can do no better than to quote from the moral argument put forward in the TRC's final report:
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. While such measures can never bring back the dead, nor adequately compensate for pain and suffering, they can and must improve the quality of life of the victims of human rights violations and/or their dependants. … Without adequate reparation and rehabilitation measures, there can be no healing and reconciliation. (TRC Final Report, Volume 5, Chapter 5, pp. 174 - 175)
References
Jaspers, K. (forthcoming, 2000). The Question of German Guilt (Perspectives in Continental Philosophy, No. 16). New York, USA: The Dial Press.
TRC Final Report (1998). Truth and Reconciliation Commission Report of South Africa. Cape Town, South Africa: Juta & Co.
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