Centre for the Study of Violence and Reconciliation

Rebuilding Fractured Societies:
Reconstruction, reconciliation
and the changing nature of violence -
Some self-critical insights from post-apartheid South Africa

by Graeme Simpson

Paper commissioned by the United Nations Development Programme (UNDP), 2000.

Graeme Simpson is a founder and former Executive Director of the Centre for the Study of Violence and Reconciliation.

Acknowledgements

This paper is based upon the work of the Centre for the Study of Violence and Reconciliation. The author is deeply indebted to colleagues at the Centre. In particular, thanks must go to Mzi Memeza who's excellent work as research assistant on this project added great value.

Introduction

Based primarily on the South African experience, this discussion paper will attempt to offer a broad analysis of some of the key challenges faced by societies emerging from intense conflict, or making the often painful transition from autocratic rule to democracy. In so doing, it will reflect self-critically on some of the challenges of transformation, reconciliation, democratisation and - in particular - on the changing character of conflict and violence in a society such as South Africa in the post-apartheid era. This will be undertaken from the explicit premises that: 1. By its very nature, this cannot be an exhaustive exercise - and is therefore designed to stimulate debate rather than simply resolve these complex issues; and 2. That whilst the South African experience may offer some useful comparisons with other African cases, it remains a unique experience which - more often than not - limits the applicability of its successes and failures as lessons in other African contexts. This latter point is particularly important in view of the extent to which the South African negotiated transition has been romanticised or mystified by those who view it from afar, as well as the extent to which some South African experts and consultants happily market the South African experience as if it is an appropriate model for transition and reconciliation in other societies emerging from intense civil conflict.

It is in fact critical to recognise the limited applicability of much which is offered by the South African experience of negotiated political settlement, when considered in the context of other African disputes. Unique political dilemmas offer no easy, obvious or uniform reconciliation strategies. This is generally arguable in respect of what Hutchful (1999:3) describes as "uncivil" wars in Africa - which generally present those concerned with mediating such conflicts or seeking to build reconciliation, with the uncomfortable prospect of having to court groups responsible for atrocities, thereby affording them formal recognition. Whilst such compromises may have been possible in South Africa, this ought not to be romanticised as a necessary or appropriate vehicle for resolving all such civil conflicts elsewhere in Africa. In this context, what follows should appropriately be viewed as an example rather than as a model.

A further reason why it is important to take what is offered from the South African situation with some caution, is due to the fact that marked differences exist across these different countries in Africa as regards the manner in which the state relates to civil society. In particular, South Africa was not a classical military regime as characterises much of Africa, nor did South Africa experience the same preponderance or overwhelming presence of the military in civil society. Furthermore, due to the historically central place which the South African struggle against apartheid occupied within the international community, there was a unique and extensive investment in the development of organs of civil society in South Africa, in lieu of any substantial government-to-government engagement with the internationally isolated apartheid regime. This resulted in the extraordinary development of organised civic activism and organs of civil society in South Africa - a legacy and a unique asset base which has significant sustained influence in the transformation possibilities in the post-apartheid era - which is not typical of many other African societies.

Yet, despite these variations, there are still important lessons to be learned and similarities to be revealed. Because of the frequent obsession with the dominant role of the military in Africa, demilitarisation of the state (rather than of society) is frequently regarded as being of the highest priority. This manifests itself in important strategic goals which exclusively target the demobilisation of former combatants; the proliferation of light weapons; conventional arms transfers; unstable civil-military relations; disproportionate military spending; and the role of mercenary outfits such as Executive Outcomes. Yet, as Nathan argues, these efforts in isolation will not yield significant results, because they focus on the symptoms rather than the causes of intra-state crises. (Nathan:1998a) The root causes and the structural problems that generate such crises in the first place, must be tackled. At least this fundamental factor is equally evident in the South African case.

As Nathan (1998b) points out, the process of demilitarising the South African state flowed in the first instance from the demise of the Cold War and then escalated with the advent of democracy. The salient factor was that the post-apartheid government was no longer at war with its own people and neighbouring states in the sub-region. However, civil society in South Africa has remained highly militarised, chiefly manifesting in the form of violent crime and private justice and security, simply because, in the final analysis, gross poverty and inequity - the structural underpinnings of marginalisation and violence in South Africa - have not yet been ameliorated. Therefore, despite any preceding general cautionary notes, this discussion document will attempt to draw on some valuable practical and conceptual lessons gleaned from the South African experience, in order to merely hold them up for reflection and scrutiny in respect of their relevance and usefulness in other African contexts.

Perhaps the most useful aspect of this discussion document will be the extent to which it exposes some of the ill-conceived assumptions of completed transformation - as well as some of the well-hidden liabilities - associated with the very nature of South Africa's negotiated settlement. Many of these masked legacies of the South African negotiated settlement will be dealt with in detail below, but perhaps the most obvious of them with which to begin, is the erroneous assumption that South Africa - as a consequence of the formal enfranchisement of black South Africans who were previously denied political rights - is a "post conflict" society. Whilst many foreign observers, governments and aid agencies see South Africa's first democratic election under its negotiated constitution as the key moment representing the end point of transformation and transition to democracy, it is argued here that this represents the early beginnings, rather than the end of this process. (See Simpson: 1998a) A cursory examination of the sustained and even increasing levels of violence in South Africa - both during and after the negotiation process - equally demonstrates the error of assuming that this moment of the negotiated political settlement represents the transformation of South Africa to a "post-conflict" society. It is the key argument of this discussion document that in the re-building of such fractured societies, attempts at reconstruction and reconciliation have to come to terms with the changing nature of conflict and violence, rather than the simple end to such conflict. In particular, this paper will focus on the extent to which - amidst all the dramatic change that takes place - certain sustained features of marginalisation, impoverishment and relative deprivation, remain at the root of ongoing criminal violence in South African society in the post-apartheid era. The extent to which this violence transmutes itself, belying any notion of a clear or rigid dividing line between political, criminal and social violence, presents a primary challenge to sustainable reconstruction and reconciliation in societies emerging from autocratic rule or from intense civil warfare.

At the heart of this analysis is the requirement that we must move beyond any narrowly construed paradigm of conflict resolution or politically centralised and diplomatically mediated end to such conflict. This is necessary because such a paradigm risks the development of ill-conceived strategies for reconciliation if they are framed around the simple elimination, through management or resolution, of existing conflict - rather than strategies which are framed by reference to the changing nature of violence in transitional societies. A more challenging and realistic approach, demands that we engage with the shifting locus of violence in such societies, coupled with an understanding of ongoing conflict as inevitable, but with measurable and more or less predictable trajectories. Such narrowly construed negotiation or mediation approaches tend to frame short term diplomatic solutions by unconscious reference to the myth that conflict can simply be ended or negotiated out of existence. By contrast, it is argued here that there is no such thing as a "post conflict" society … and our primary challenge is rather to understand, monitor and predict the changing nature of conflict and violence in such societies. This in turn must be fundamentally linked to the re-building of the social fabric which has been decimated by enduring violence and political autocracy.

If the foregoing presents a challenge to narrowly construed conflict resolution or diplomatic peace-making models by reference to the developmental - or more appropriately under-developmental - underpinnings of sustained conflict, then there is an equally strident challenge which must be made to any naive proponents of economic development and growth as automatic vehicles for the resolution of such violent conflicts. Indeed, for many policy makers and analysts, economic development is presented as the obvious strategy for resolving many of these problems and for eliminating social conflict and violence in post-apartheid South Africa, as well as in Africa more generally. There can be little doubt that in building reconciliation in South Africa, much will depend on the effective redress of the legacy of economic disadvantage and exploitation of black South Africans which characterised apartheid - and this is obviously a long term process. However, whilst no-one would dispute the critical importance of such developmental strategies, there are several basic assumptions built into such 'hard developmental' models which must be dispelled. (Simpson: 1998b)

The first is the obvious point is that such economic growth, particularly within a neo-liberal economic policy framework, does not automatically translate itself into trickle down benefits to the most impoverished and marginalised in society. The second - and more relevant concern here - is the simple contention that the injection of developmental resources into impoverished communities which were historically divided and frequently at war over access to such scarce resources, frequently escalates rather than merely resolving such entrenched conflicts. Far from automatically eliminating the root causes of conflict and violence in transitional societies, economic developmental processes therefore generate new forms of conflict, or social and criminal violence, and often re-ignite residual conflicts within these communities. The close management of such developmental processes and associated emerging conflict - based upon the development of strategies for violence prevention and for rebuilding the social fabric - therefore remains critical to sustainable peace and reconciliation through economic development. Unless such economic development is tightly associated with approaches to "human development" which engage with the issues of governance and identity, it may well feed new conflicts in society and service the shifting trajectory of violence in the process.

Eboe Hutchful goes considerably further in asserting that certain economic developmental approaches are even more aggressively counter-productive. He argues that the impact and pervasive influence of neo-liberal economic policy - which, he suggests, is premised upon the retreat from redistributive economic strategies (perhaps symbolised in South Africa by the abandonment of the Reconstruction and Development Programme in favour of "GEAR") - has served to erode the gains of economic citizenship in Africa. This, Hutchful argues, has generated marginalisation as a substitute for the economic inclusion that is so critical to supra-ethnic identity and the legitimisation of psychological investment in the roles and responsibilities of the state itself. Thus Hutchful concludes:

African states are forced to search for new modes of social incorporation as the old paradigm has been eroded. In this sense, structural adjustment has promoted social destabilisation without growth.(1999:2)

Whether Hutchful's specific perspective is accepted or not, the strength of his argument resides in its complex understanding of the relationship between such economic growth models and issues of identity, social psychology and the potential for exacerbated rather than ameliorated situations of conflict. The motivation here, therefore, is for such an integrated approach … which is premised upon a recognition of the fact that economic reconstruction or the redress of past economic inequities, is inextricably linked with political and human empowerment in the violence prevention enterprise. Whether violent conflict is framed as being politically, ethnically or class-based, social reconstruction and reconciliation strategies must be premised on the intimate relationship between social, political and economic interests. To seek conflict resolution strategies in a manner which detaches these inter-linked interests from each other, is merely to create a recipe for sustained conflict and violence. In the absence of such an integrated approach, the re-building of economic infrastructure will always be vulnerable to destruction through the re-emergence of social, criminal or political upheaval. By the same token, the rebuilding of the social fabric or the negotiation of political settlements, will always be vulnerable if we fail to engage with popular economic needs and the redress of structurally entrenched economic inequity. (Simpson: 1998b)

It is suggested here that all of these lessons are creatively illustrated in the negotiated South African transition (and the hidden liabilities within it) and the powerful image which it offers of a slide from politically-defined to criminally-defined violence though the transition. The sections of this paper which follow, attempt to focus attention on some key aspects of this dynamic:

Politics, Violence and Crime: The Challenges of Transforming Inherited Criminal Justice Institutions

One of the primary concerns in the processes of reconstruction and reconciliation in post-apartheid South Africa, has clearly resided in the sustained levels and shifting nature of violence which has continued to dominate during this period and which has framed the central challenges for embryonic democratic governance in this transitional society. This is of particular relevance to the alternative approach to conflict management offered by Nathan - who argues that conflict management should be an essential component of the business of governance, rather than a crisis management intervention. In terms of this perspective, the challenge to societies in the transition from authoritarian rule to democracy, therefore revolves - at least in part - around their effective transformation of governance and their ability to establish effective and legitimate state infrastructure.

… conflict as a social phenomena cannot be avoided or eliminated in any general sense. Rather, the challenge is to manage it in a constructive fashion … . Conflict management is the essential, on-going business of governance. It is the formal responsibility, in different ways, of parliament, the executive, provincial and local authorities, the judiciary and the police … . Where these institutions lack the capacity to regulate competition and resolve disputes and grievances, individuals and groups may fulfil the functions through violence. In the absence of an effective policing and judicial system, the violence goes unchecked and criminal activity may flourish. Somalia and Liberia are often cited as typical examples of this problem in Africa, but they are better seen as extreme cases on a continuum of weak states throughout the continent. (Nathan:1998c, 35)

This raises some important questions about the nature of the South African negotiated settlement. Far from resulting in an immediate or automatic decrease in the levels of violence, the shift from the politics of confrontation to negotiation politics in South Africa was actually accompanied by an increase rather than a decrease in the levels of political and social violence. A temporary increase in the levels of political violence was, in some respects, understandable. (See: Simpson and Rauch: 1991; and Simpson, Mokwena and Segal: 1992) Firstly, this was related to the fact that negotiations over the future constitution of the new South Africa, actually raised the stakes for many of the political interest groups. Secondly, the shift to the politics of democratic representation presented new challenges to political parties who had never previously proven their popularity at the ballot box. Some of these political parties - in seeking to establish support bases in new areas of the country - resorted to coercive measures to either extend their support or protect their traditional power bases. This included the establishment "no-go areas" and violence associated with attempts to penetrate these zones of political exclusion, as well as heralding a new manipulation of ethnic identity as a defensive organising tool of political ideology. Added to this was the continued operation of a "third force", with interests rooted in the apartheid past, and which was determined to spurn internecine violence in order to destabilise the very processes of negotiation and democratisation. In short, far from being incompatible with the process of negotiated political settlement, violence was often functional to political interests in the negotiations - as political parties sought to manipulate the very process of negotiation through either entering, destabilising or withdrawing from the process on the basis of new acts of violence.

More striking than this sustained political violence during the negotiations phase, is the suggestion that the relative decrease in political violence after the 1994 election (which heralded the end of the negotiations phase), was ostensibly associated with an equally dramatic increase in the levels of criminal violence - and this reflects importantly on the questions of effective governance and the capacity of the post-apartheid government to transform its criminal justice institutions. However, it is arguable that this analysis of a simple shift from political to criminal violence ought not to be taken too literally. A key legacy of apartheid's political exclusion of the majority of black South Africans, was the extent to which this effectively criminalized ordinary political and social activity, thus blurring the dividing line between political and criminal violence. This, combined with the illegitimacy of apartheid's criminal justice institutions, rendered it noble to be on the wrong side of the law in pre-democratic South Africa. The flip-side of this coin, was that the political context also provided a shield of legitimacy for many activities which would in any other circumstances simply be framed as criminal involvement.

Indeed, the circumstances of civil war in apartheid South Africa - not surprisingly - breathed life into a resilient violence-based sub-economy rooted in the trade in arms, assassination and protection … and in which there were extensive vested material - rather than merely political - interests. It would in fact be surprising were such a sub-economy to simply evaporate with the processes of formal democratisation. In view of this, it is arguable that far from representing a dramatic shift in the nature of violence in South Africa, the post-election period simply witnessed a selective "re-labelling" of violence which was in fact testimony more to continuity than to any dramatic process of change. It may be suggested that considering the rather fine line which separated political from criminal violence under apartheid - and considering the popular rhetoric associated with the "miraculous" negotiated settlement which brought apartheid to an end - South Africans were rather pre-disposed to interpreting most of the violence which occurred before the election as political, whilst selectively re-framing such violence in the post-election phase as criminal in nature.

Returning to the key issue of governance, the above analysis serves to frame one of the most vital disguised liabilities embedded in the compromises necessary to achieving South Africa's negotiated peace. This was the fact that a new "Government of National Unity" inherited its criminal justice institutions, practices and a substantial part of its personnel - lock, stock and barrel - from its anti-democratic predecessor. Quite apart from the amnesty agreements for perpetrators of human rights abuses which lay at the heart of the negotiations process (and which will be dealt with in more detail below), this also went hand in glove with another fundamental political compromise manifested in a "sunset clause" negotiated between the ANC and the former Nationalist Party government, as a backdrop to the interim constitution. This "sunset clause" provided that civil servants from the apartheid regime could not be evicted by the new democratic government, for at least the following five years. In combination with the amnesty agreement, this meant that the new democratic government effectively inherited - largely intact and with their existing personnel - institutions of state from the former regime … and with them a legacy of popular mistrust and a crisis of legitimacy in respect of these critical criminal justice institutions.

This presented a fundamental challenge during the first years of the democratic "Government of National Unity". The process of negotiations had effectively dismantled old illegitimate sources of repressive authority, but had been considerably less efficient in re-building new, legitimate and consensus-based alternatives. This had created a vacuum in which there was substantial potential and space for criminal activity to flourish. The challenge therefore was how to transform these inherited governmental institutions which had been the primary violators of human rights under the old government, yet were now tasked as the guardians of a new constitution and bill of rights and as the primary guarantors of safety and security - in the context of sustained levels of violent crime. This presented a further challenge to organs of civil society over whether or not to even engage within governmental institutions such as the military or the police - precisely in order to transform them - considering the apartheid history in which these very institutions of state were considered to be "the enemy".

The importance of these compromises, which were rooted in the very nature of the politically negotiated peace process - as well as the problems of legitimacy which the new government consequently inherited - cannot be underestimated in their enduring impact on both the pace of transformation in South Africa after apartheid and the enduring impact of burgeoning levels of violent crime. Nor can the magnitude of the challenge to overcome this legacy be minimised. It has entailed far more than just achieving institutional reform and culture change within these government agencies (itself a massive undertaking), but has also involved the establishment of rules, sanctions and practices that are consistent with a new Bill of Rights and constitutional practice. The critical example of welfare institutions illustrates that this transformation agenda also entailed reorganising government departmental budgets which were previously designed to service the exclusive needs of a small minority of white South Africans, so that they became functional to servicing over forty million South Africans of all races. All this was also to be achieved within the boundaries of fiscal constraint and creeping economic recession - which generally determined that these new service objectives would have to be undertaken within the same budgetary limits as before.

The key challenges of criminal justice transformation as they affected the South African Police, therefore entailed1: the need to de-politicise the police and develop mechanisms for increased community accountability; the reform of the entire police training system; the restructuring of the force to incorporate the nine former "bantustan" forces; to render policing practice subject to the constraints of a constitutional dispensation and bill of rights; and to fundamentally re-focus policing priorities from political to criminal activities. The dominant concern in the early period of the new government (and even during the negotiation phase which preceded the 1994 election), was therefore essentially to win legitimacy and rebuild popular respect for these criminal justice institutions by making a clean and definite break with the past, on one hand, and to secure the loyalty of inherited police membership to the new political leadership, on the other. Part of this enterprise was symbolic, such as the change in police uniforms and the change from the previous military ranks to a rank system based on the British model. However, the critical issues of change in the demographic representativeness and the racial and gender profile of the police, reached well beyond the merely symbolic. Ultimately this was not just about introducing more black police into the service, as even under apartheid 64% of the force was black. It was, however, about changing the limited extent to which blacks and women enjoyed representation within the upper echelons of the rank structure. And in reality, only a limited amount has been achieved in this regard. In 1994 women made up 18% of the total police strength and only 11% of the officer ranks, despite the fact that they made up in excess of 53% of the population. Today, five years later, women still only make up 20% of the service and a mere 16% of the officer ranks. Similar trends apply to black representation within the senior ranks. In 1998, the rank of Director (equivalent to that of the old Brigadier) was still made up of 78% white and only 12% black Directors. When compared with the 1995 figures, which revealed that 80% of these Directors were white, it can be seen that not much has fundamentally changed. (Rauch: 1998, 8)

One of the potential mechanisms to drive the transformation process within inherited policing institutions, was through an agreement reached during the negotiation process to incorporate members of the former liberation armies into the new South African security forces. However, whilst this was a key strategy regarding the future and transformation of the military, for a number of reasons it was far less significant as a mechanism for transforming the police. Firstly, whilst the liberation movements did have trained soldiers and intelligence operatives that could be deployed in the military, they had not trained any exiled members in police work - and integration as a key to transformation was therefore less possible in this specialised sphere. Secondly, the main political concern of the liberation movements was with the possibility of a right-wing coup from within the military - and thus with the transformation of the defence force rather than the police. Finally, the historical alienation of the police from the black majority (as the primary vehicle of apartheid's repression) made the prospect of working in the police a far less attractive one for proponents of change than working in, say, the army or the intelligence services, which was more likely to attract some senior officers from the former liberation movements.

In spite of these factors, a number of ANC intelligence personnel were eventually posted to the Crime Intelligence Department of the new South African Police Service (SAPS) - the notorious (and ostensibly reformed) Security Branch. This Department, along with the police intelligence component responsible for "Internal Security", had both been placed under the command of ANC appointees. The entry of trusted ANC personnel went some way to re-establishing public credibility for these hated units. However, the departure of most of the apartheid-era security police agents (who feared victimisation or a lack of career prospects under ANC leadership) meant that the effective crime intelligence capacity of the SAPS was seriously denuded, with the inevitable resultant negative impact on criminal investigation and prosecution capacity.

Another possible route to facilitate the transformation of inherited policing institutions and practices, was via the lateral entry introduction of civilians into middle level and senior posts within the SAPS. However, lateral entry was not fully exploited by the new government as an opportunity to change the composition of the SAPS senior ranks. This was partly due to the resistance of police managers to the notion of civilian lateral entry, and partly to the objective lack of policing expertise in South Africa outside of the ranks of the apartheid police agencies. The relatively low salaries offered by the SAPS, combined with the unpleasant image of the SAPS, meant that the ANC government was unable to recruit high-calibre civilians into influential managerial positions in its new police service.

However, the ultimate challenge in the early post-apartheid period, was to demonstrate that policing had become more accountable. This was primarily taken on as an exercise in building popular legitimacy through a relationship-building approach to the black community, premised upon a model of community policing, a formal accountability to the constitution and to elected civilian government. However, if the imperatives of the early transition period were to build accountability premised upon newly established legitimacy of the police, then the changing needs of a slowly maturing democracy - particularly one dominated by sustained or increasing levels of violent crime - were to determine that five years later, such popular accountability would be based not so much on questions of legitimacy, as upon the quality of services provided to the public - particularly in respect of burgeoning violent crime. On these grounds - five years later - the SAPS still confront a major crisis of public confidence: now based upon the simple perspective that transformation has failed to deliver expected standards of service. Recent surveys conducted in South Africa's major cities found that attitudes towards the police and satisfaction with police performance, remain very negative. No longer seen as a threat to freedom and to the rights of black citizens, the police are now facing an equally serious crisis in public confidence in their ability to deal with crime.

This is entirely understandable considering the fact that levels of reported crime rose significantly during the 1990-94 period. Reported rates of assault rose by 18%, rape by 42%, and vehicle theft by 34%. This trend continued, but began to level off, in the post-election period: from 1994-1996, reported rates for serious crimes increased by 10% and rape by 19%; but the rates for most property crimes decreased. (Shaw and Louw: 1997). Despite the "levelling-off" in many categories of crime, the actual volumes of crime continue to place an enormous burden on the police: in 1997, there were over 150 000 reported rapes (a rate of 120 per 100 000 of the population), nearly 25 000 murders (57 per 100 000 of population) and 250 000 residential burglaries (576 per 100 000 population).

However, the crux of the matter does not reside in the magnitude of the statistical increase in crime rates - itself a contested terrain - but rather in the fact that as reported crime rates were increasing, so conviction rates through criminal trials dropped dramatically. One influential study published in 1995 claimed that in only 4% of cases did the perpetrators of serious crimes actually serve a prison sentence. (Nedcor: 1995) Although this figure is not dramatically different to comparable international rates, it exacerbated the crisis of confidence in the criminal justice system which was becoming entrenched. This was compounded by a steady stream of media reports focussed upon the prevalence of ongoing police corruption. Tales of bribery to ensure that investigation dockets were "lost" (resulting in prosecutions being withdrawn) were verified in a series of investigative reports in national newspapers. In a tacit acknowledgment of the problem of prisoners paying their way out of holding cells, the police set themselves a target of permitting only 600 escapes from custody in 1997, as compared with the 800 escapes which had taken place in 1996. (SAPS: 1997)

Feeling the effects of what was experienced and publicised by the media as a devastating post-transition crime wave, the South African public began to demand tougher action against criminals; and the Bill of Rights - and with it, a vulnerable, embryonic human rights culture - became a popular scapegoat for police inadequacy. Even the rhetoric of former human-rights advocates in the Cabinet began to harden, and the political language of "war on crime" began to pervade South African discourses around crime in the later 1990's. This popular discourse was also reflected in a worrying inclination on the part of government to retreat from its commitment to vision-based policy in respect of long term crime prevention programmes, in favour of more aggressive law enforcement approaches.

Government's failure to translate its crime prevention programme in to effective practice, partly as a consequence of this retreat, is particularly significant because of what it says about the nature of governance and accountability in relation to violence prevention and conflict management in a newly established democracy. In the final analysis, governance must reach beyond the simple aspiration to legitimacy and - to be effective - must translate into meaningful and functional implementation and service delivery. It is indeed a core problem of government in transition in South Africa, that it has suffered from a severe inability to match its unique vision-based policy making capacity, with the technical capacity to implement and deliver. This is particularly true of the National Crime Prevention Strategy (NCPS), passed by Cabinet in May 1996.2

There are two key components to this fundamental problem, both of which are perfectly illustrated by the fortunes of the NCPS. On one hand, since its incumbency, the ANC government - in large part drawing on its traditional intellectual power-base within the NGOs, the trade unions and the universities - recruited into the ranks of government a uniquely powerful intellectual capacity for creative and innovative policy making. Government thus developed a remarkable ability to generate visionary policy pertaining to virtually every dimension of its operations and political concerns - and the NCPS is an excellent example of such creative analysis and vision. On the other hand, government's capacity to implement these policy visions has been entirely dependent on either inexperienced new recruits into government departments - who have frequently proved to have little capacity to drive and operate state bureaucracies - or inherited officials from the old order, who themselves have often been either passively or actively resistant to implementing the policies of a new political leadership - or simply incapable of making such a policy shift. Added to this are the sustained budgetary constraints which demand a difficult process of prioritisation (both at the policy-making level, as well as in implementation strategies) if the massive task of redressing historical inequities at the social, political and economic level are to be undertaken.

The tension between the ambitious nature of the NCPS as a policy, and the limits on the government's capacity to deliver, has had important implications. Firstly, the gap between government's capacity to generate sophisticated policy visions and its capacity to implement such policy, has undoubtedly contributed to frustrated popular expectations. Secondly, this gap between expectations and delivery, arguably also reflects a fundamental problem with government's approach to policy-making. Such policy development, although visionary, may be undermined because of its failure to adequately prioritise short term, deliverable objectives which resonate closely enough with grass-roots needs and which are realistically operable within tight budgetary constraints. Finally, in some instances these tensions reflect a growing gulf between voters and their public representatives in a new democracy - and therefore, an inability to influence or effect elected representatives or government officials who do not perform. The danger inherent in this latter perspective is that it limits the role of the organs of civil society to a rather indirect lobbying and advocacy function, which in turn accommodates the spectre, at worst, of growing unchecked corruption and mismanagement within government administration, or at best, of decreasing accountability and increased failure to perform. (This also may have implications for the "partnership" approach to crime prevention which is so important to the NCPS.)

Precisely because it is over-ambitious, the NCPS ultimately represents the kind of policy making which a government in transition will struggle to implement effectively. In demanding the establishment of programmes and policies which cut across various government departments (and which therefore demand a degree of horizontal accountability between these departments), this approach ignores the extent to which the new political leadership is actually struggling to assert vertical lines of accountability and control within individual departments and bureaucracies which were inherited from the former government. Furthermore, budgetary constraints also foster intense competition between various departments over finances and budgetary allocations - and this often motivates against such cross-departmental cooperation. Finally, whilst an integrated approach dependent on cross-departmental coordination was ostensibly designed to enhance government's crime prevention capabilities, the very tasks of coordination simply further taxed already inadequate capacity within the various criminal justice departments.

These factors, combined with the NCPS' failure to offer effective short-term implementation strategies which built public confidence in the longer term crime prevention objectives, resulted in growing public pressure on government in respect of violent crime. Adding fuel to the fire was government's failure to either translate the NCPS into local level delivery programmes, or even to communicate its vision and strategy effectively in this regard. Whilst the NCPS was specifically designed as a victim-centred crime prevention programme, government's failure to translate this policy approach into effective service delivery, has contributed to public frustration and has indirectly fuelled popular perceptions that human rights provisions simply service perpetrators rather than victims in the criminal justice context.

In all these respects, the National Crime Prevention Strategy reflects some of the intense difficulties faced by an embryonic democracy in achieving the transformation of inherited state institutions which is in turn necessary to establishing a quality of governance required to engage effectively with the shifting patterns of conflict and violence. In the process, sustained violence and burgeoning criminality have replaced political turmoil as the major threats to democracy, human rights and reconciliation in post-apartheid South Africa.

Popular Culture and Civil Society3

Despite the above focus on the imperatives of democratic governance and transformation of state institutions in managing conflict in newly democratising societies such as South Africa, it is nonetheless important not to mystify the extent to which change at the level of the state and in governance can - on its own - resolve both new and residual violence in society. On the contrary, it is argued here that change at the level of the state cannot be effective if it isn't matched by the strengthening - and creative intervention - of organs of civil society. Indeed, considering the fact that the establishment of democratic governance is essentially about restructuring the relationship between the state and society, then - for this to be functional to engaging with and preventing violence in society - it must tackle the roots of such changing violence both in the state and in civil society.

It is therefore the very nature of conflict in society - and the extent to which it is entrenched and embedded within the fundamental issues of identity and interest within civil society - that demands that we reach beyond the limitations of change at the level of the state (or of formal processes of democratisation) which are constitutionally expressed. This point also relates to how we understand the impact and extent of change wrought through a politically negotiated settlement. Power-based diplomacy which forges agreement at the national political level, simply does not automatically "trickle down" as an effective conflict management tool at the local or grassroots level in civil society. In other words, such processes of formal political change do not inherently resolve or overcome the issues of popular culture which house entrenched residual racial, ethnic or gender prejudices - as these are simply not reducible to disciplined party political or ideological affiliations. To fully engage with these dynamics in society, demands an active engagement with the psycho-social dynamics of conflict and violence, including a particular sensitivity to the shifting manifestations of such conflict in society. In South Africa, this is essentially about a process of rebuilding the social fabric decimated by apartheid (and bastardised by decades - or longer - of entrenched conflict, rooted as much in fundamental access to resources, as in race-based political deprivation) and cultivating alternative and benevolent popular cultures to substitute for long entrenched cultures of violence, which are deeply embedded in popular identity.

The harsh reality of the South African situation is that, despite the romance associated with the negotiation of a new constitution by the main political parties, this constitutional dispensation did not inherently resolve many of the key tensions which existed in South African society and in its social institutions. Indeed, it is still argued by many that the beneficiaries of apartheid are still enjoying their tradition of power and privilege in South African society - and that whatever the achievements of national reconciliation processes, there is little evidence of its trickle down to the institutional level in society. Constitutional democracy certainly did not automatically guarantee any economic transfer of power or the redress of historically entrenched inequity in South African society and culture. It could not guarantee an end to racism, gender bias, political intolerance or the sustained marginalisation of vulnerable groupings such as youth, women and victims in society. Socio-economic rights enshrined within the Constitution, did not guarantee that such rights could in fact be claimed from - or delivered by - the state. Furthermore, a constitutional dispensation still relies heavily on the development of a popular culture of human rights necessary to sustain the rights contained within the constitution - and to matching them with a reciprocal set of obligations - and this is not developed overnight within a society which boasts such a lengthy history of dehumanisation.

Therefore, politically negotiated settlement and the resultant constitutionalisation of South African politics, symbolised in the first democratic election in April 1994, represents only the beginning of the process of transformation to full democracy, rather than the end point. Nor does formal democratisation necessarily entail sustainable reconciliation. Therefore, whilst South Africa is often presented as a model of change and reconciliation, the reality is that amidst all the change, much has also stayed the same. Indeed, it is argued that in the very shift from the politics of confrontation to the politics of negotiation, certain groups - such as the militant youth - were further marginalised. This all raises important issues pertaining to the crucial role of non-governmental organisations (NGOs) and other organs of civil society, in building sustainable reconciliation and violence prevention strategies. For, although formal democracy heralds representation and legitimacy in government, it may also substitute this representation for direct participation or civic activism. It is ironic that formal political representative democracy may at the same time destroy a great deal of the opportunities, traditions and desires for more direct systems of participatory democracy through civic and community activism. In this context, and in the context of sustained marginalisation (and its link to potential violence) there is a vital role for NGOs in both representing the voices of the most marginalised, in building a culture of human rights at a popular level, as well as in consolidating democracy - rather than presuming its achievements to be irreversible. The role and creative intervention of agencies and organs of civil society are therefore critical to managing and engaging with the constantly and subtly shifting roots of conflict and violence in societies in transition.

This environment, combined with the dynamic discussed in the preceding pages and which relates to government's difficulties in translating its policy vision into effective implementation, offers a set of dynamic "dangerous opportunities" for organisations of civil society. On one hand, NGOs that had previously been locked into a hostile opposition relationship with the apartheid government, suddenly encountered the potential to engage in joint partnerships with a democratic government, or even to act as service providers through whom government could out-source its delivery. Similarly, the opportunities and space for creative lobbying and advocacy work with the new government were also opened up. However, at the same time, this environment also created potential tensions for NGOs which remained critical of government. This was particularly the case due to the gaps between government's policy and its capacity to deliver effective development and service provision, which exacerbated the frustration of legitimate popular expectations of change associated with political liberation. To the extent that NGOs remained closely linked to grassroots community groups, they also experienced considerable (and appropriate) pressure to continue representing these frustrated popular aspirations. This further complicated the relationship between a new democratic government and the NGO sector - especially where some NGOs were strategically seeking to work for transformation within government departments as well as within the wider community. This can casually be described as a kind of "institutional schizophrenia" which came to characterise many organs of civil society during the post-apartheid period - both working with government, and attempting to retain a critical independence.

It has already been noted that South Africa boasted an unusually vibrant and extensive tradition of civic activism and non-governmental organisation, which was a legacy of the anti-apartheid struggle. However, such direct civic activism ought not be romanticised and - in the context of an easy slide between political and criminal action - could take on both benevolent and extremely sinister forms in the transition to democracy during the immediate post-apartheid period. This is perfectly demonstrated by the community policing partnership between government and civil society. The most notable danger in this context, has been the growth in sinister forms of "private justice" which generate cycles of violence through under-regulated patterns of retribution and revenge - and which are often rationalised as being in the name of dealing with the scourge of violent crime.

The resort to various forms of "private justice" has an equally rich tradition and history in South Africa. It has always primarily been the consequence of absent public confidence in state criminal justice institutions under apartheid. It has also tended to reflect diverse forms of civic activism which have spanned the divisions of race and class in South Africa: as the wealthy have invested in the private security industry and the poor in "people's courts" and community-based self-defence units. Indeed, the sustained lack of confidence in policing service delivery in the post-apartheid era, precisely reflects the tendency for such popular activism to manifest itself in both benevolent or extremely sinister forms. The community policing partnership approach presumes well regulated systems of accountability associated with community involvement in "crime fighting" measures and reflects the most benevolent forms of such direct community involvement. By contrast, the growing spectre of organised vigilantism is illustrative of the problems associated with cyclical patterns of violence linked to the disintegration of government's ability to project itself as the guarantor of security. The grave risk of this latter development, is that it tends to sustain the violence-based sub-economy rooted in the apartheid era and which feeds itself through precipitating rivalries amongst "warlords" with vested interests. Nor is this situation unique to South Africa. As Hutchful notes, the dangers of the retreat of the state from its responsibility to guarantee safety presents precisely such criminal opportunities:

This development has two important consequences: first, 'security' has been converted into a commodity, available at a price to those who can afford it … and no longer a right conferred by citizenship and membership in a political community. Secondly, it poses serious problems of control and accountability in the use of force. This is an issue that human rights organisations cannot afford not to engage. (Hutchful:11)

The significance of this scenario, is that it provides a powerful example of the shifting nature of conflict in South African society, which - at least in part - can be traced through the subtle slide from political to criminal violence. There are in fact numerous examples of the transformation of self-defence or self-protection units - which were originally forged as political militias operating at the community level to provide alternative protection services to marginalised black communities under apartheid - into criminal gangs which simply terrorise the very communities which they were initially established to protect.

In the light of the above, it is clear that NGOs have a critical ongoing role to play in consolidating democracy in South Africa - and an equally vital function in ensuring the constructive and regulated content of civic activism in the fight against crime and in the prevention of cyclical patterns of violence. Far from being an irreversible process, the democratisation of South African society also remains vulnerable to future governmental abuse of power, and NGOs have a vital role to play in ensuring that government does not retreat from its human rights commitments in the name of dealing with criminality. In particular, human rights organisations have a crucial role - not only in protecting human rights from governmental intrusion, but in building the popular culture necessary to underpin the "paper" rights which were constitutionally enshrined through the negotiation process. The negotiated settlement, the interim constitution to which it gave rise, and the election which followed, all represented the beginning rather than the end of the process of transformation in South Africa. Whilst the outcomes of these initial processes were largely predictable at the political level, the long term prognosis for South African society was less clear cut. In particular, the prospects of sustainable reconciliation at a grass roots level were not clear. The extent to which violence would remain a dominant feature of society was not easily resolved, and nor was the prospect of redress of historically entrenched, race-based inequality. Ultimately, it is the responsibility of organisations of civil society to play an ongoing role in building sustainable reconciliation strategies and sustainable civil society institutions during the years ahead, as it is only these vehicles that can truly secure democracy and good governance in South Africa. The institutionally complex relationship between government and NGOs (in which NGOs such as the CSVR are sometimes critics and watchdogs of government, whilst at other times act as partners to government, and in still other instances as service providers which substitute for absent governmental delivery) means that government's commitment to the NGO sector is likely to be increasingly tenuous in the coming years. It is therefore critical that the capacity of these organs of civil society be built in the years ahead.

Indeed, this statement of NGO obligations is even more important considering the danger which currently faces South African NGOs - as international agencies now begin to withdraw their funding support from many of these civil society structures - on the basis that the transition is formally complete. As the South African NGO sector faces more financial pressure, so the risk grows that many of these organisations will become financially-driven consultancies, increasingly detached from their grassroots origins and less inclined to play an active solidarity role in the struggles of other peoples for democracy in the rest of Africa and elsewhere around the world.

Cyclical Patterns of Violence - The Examples of Victim Empowerment and Youth Marginalisation

The assertion contained in the preceding pages, that interventions at the level of civil society are essential to curbing the reproduction of violence in democratising societies, represents a further warning against the traditions of politically engineered peace agreements or diplomatic intercessions which seek instant solutions to deep-rooted civil conflict. This can be taken even further, however, by suggesting that failure to appreciate the fact that such conflicts generate their own histories and residual memories - and are therefore rooted at the level of popular identities, may actually result in such "quick fix" solutions exacerbating or complicating rather than resolving such deep-rooted identity conflict. This has been argued powerfully by Deng (1997:28-9) in relation to the Sudanese civil war.

However, in the South African example, this fundamental point is best illustrated by reference to two key social constituencies: victims of violence and marginalised youth. Each of these groups will be very briefly considered below, in order to more tangibly illustrate some of the perspectives being outlined in this discussion document.

A perfect consequence of this dynamic (the quick fix which in fact exacerbates rather than resolving conflict), is manifested in the frequent failure to engage directly with the needs, experiences and historical traumas of victims of such conflicts, ignoring the dramatic potential for the resultant unresolved trauma to play itself out - in sometimes transmuted forms - over generations and even over centuries. Instead, victim empowerment interventions tend to be undervalued and treated as merely remedial measures (frequently merely complicating the prospect of negotiated settlement), rather than pro-active interventions in cyclical patterns of conflict and violence. In contrast, it is argued here that the South African example demonstrates very powerfully the potential of victim empowerment interventions in preventing the cyclical and transmuted manifestations of new forms of violence. So too does the Bosnian case, which powerfully illustrates the long term impact of residual memory of victimisation as a key factor in the initiation and escalation of new violent conflicts - over periods of hundreds of years. Needless to say, this perspective presents huge potential challenges in respect of such conflicts as manifested in the Rwandan genocide. The need to understand such violent civil conflicts as social phenomena which have a range and complexity of causes, dynamics and psychological impacts, clearly precludes short term or quick fix prevention measures, rooted in politically or diplomatically negotiated "resolution".

It is this author's view that unresolved issues of victimisation and trauma at a massive level in society, constitutes a "sustained crisis" (in Nathan's terms) which, over time, takes on a structural character - especially when associated with historical roots in past racial or ethnic conflict. Such enduring crisis may merely be masked by formal political or diplomatic settlements and peace agreements. As a result, latent conflict may not immediately present as violent, but will inevitably manifest itself in patterns of violence which are cyclical in nature, frequently displaced, and which may well eventually play themselves out along different lines of social cleavage from the original political conflict. A critical component here (which will be addressed again below) is the sustained impact of unresolved issues of insecurity, fear and the culture of impunity for perpetrators who are never brought to book.

In the South African context, both the Truth and Reconciliation Commission and the Victim Empowerment Programme of the National Crime Prevention Strategy, suggest a substantial concern to deal with the needs and experiences of victims of both ongoing criminal violence and past human rights abuses. However, neither of these approaches alters the fact that a substantial vacuum exists in South African society in respect of victim aid and empowerment services and policies. Whilst government and TRC rhetoric speaks loudly regarding the interests of survivors of human rights abuses or victims of violent crime, this simply has not translated itself into any capacity or expertise to practically empower such victims, particularly in respect of the most vulnerable and voiceless members of South African society - women and children. In particular, the lethargy and spectacular non-delivery of any meaningful services to victims by government's Victim Empowerment Programme (VEP) - as well as the virtual non-existence of any reparation mechanisms for those who have testified before the TRC, simply cannot be ignored or excused any longer. In the shifting locus of accountability in an embryonic democracy, there is no substitute for effective service delivery. This applies as powerfully to the areas of victim empowerment as any other - and we need to reflect very critically on the failures of the state in this regard, both at the level of VEP as a crime prevention mechanism, as well as at the level of failed reparative measures as a product of the TRC.

The critical point here is that such victim-centred interventions must not be viewed as merely remedial, but must also be viewed as critical pro-active interventions in cyclical patterns of violence in South Africa which have by no means run their full course. In many respects this has already been powerfully illustrated by the spectre of vigilantism, which - it may be argued - is as much the product of communities feeling under attack and unprotected (due to the absence of any effective victim empowerment services), as it is a manifestation of their loss of confidence in criminal justice institutions more generally. Victim empowerment interventions, as well as curbing cyclical patterns of violent crime, are also a key mechanism for intervention in the transformation process regarding criminal justice institutions. This is clear from the simple prevalence of preventable "repeat victimisation" which is a dominant crime phenomenon in South Africa - particularly as regards violence against women and domestic crime. Furthermore, victim empowerment approaches also force a change process within the criminal justice environment through demanding the overhaul of systems of justice which have the alienating effect of secondary victimisation for those who take up their cases in the criminal courts. However, the central assertion here is that unresolved trauma associated with victimisation - whether political or criminal - if untreated, may well result in today's victim becoming tomorrow's perpetrator. This is by no means an automatic process - which would be to condemn all survivors to the fate of becoming perpetrators of violence. However, whether manifested in generational patterns of cyclical violence, or more constrained loops of revenge and retribution, failure to engage effectively with the experiences and identity associated with victimisation, is a naive path to sustained and unpredictably changing patterns of violence.

An even more powerful illustration of sustained yet changing patterns of violence is offered by an examination of the trajectory of youth politics in South Africa. This is partly due to the fact that this strategically vital social constituency statistically represents both the primary perpetrators and the primary victims of violence in South Africa. Indeed, it is arguable that violence has symbolically become inextricably intertwined with youth identity in this country. (Segal et al: 1999)

Historically, young black South Africans were the barometer of marginalisation under apartheid. They were systematically driven onto the margins of society and were rejected entirely by the dominant culture. They were rendered politically voiceless by a system of legislated discrimination based upon race. They were educationally dis-empowered by the system of "Bantu Education" which was deliberately utilised as a means of colonial control, designed only to create "hewers of wood and drawers of water" to service the exploitative labour needs of affluent white-owned industry. They were economically powerless due to recession and inevitable joblessness. Furthermore, apartheid had decimated the alternative sources of social cohesion and places of belonging for these young people: the family (both nuclear and extended family forms) was destroyed as a source of social authority and belonging; the school was transformed into a highly politicised site of struggle, as was the case in the workplace for those who were fortunate enough to get off the streets.

Yet, throughout the oppressive days of the 1970s and 1980s, these young people proved themselves to be incredibly resilient in the face of such systematic marginalisation. They forged alternative places of belonging and identity - largely through political organisations and through the violent politics of resistance. As the shock-troops of liberation, fighting guns with stones, young black South African men established an alternative sub-culture and place of social cohesion, which simultaneously placed them back on the front pages of the daily newspapers - centre stage within the very society which had so rejected them. Indeed, political organisation clothed them in a new uniform represented by the colours and the banners of the political party. It had its own language in the songs of liberation and the toyi toyi. It represented a truly cohesive alternative sub-culture which gave young men a key stake in society … largely premised on their direct involvement in violence, which was socially approved in the name of liberation.

There is a striking irony that in the shift which took place in South Africa from the politics of confrontation to the politics of negotiation, this very youth constituency was once again marginalised as "the struggle" moved from the streets to the boardroom, from the hands of these young foot-soldiers, to those of a largely grey-haired or balding, male, exile-based community. On the very eve of liberation - which so strongly symbolised their victories - these youngsters, who had grown up on the streets, were told to go back to school … at a time when the snails-pace nature of transformation meant that very little had actually changed in the schoolroom.

The youngsters of 1994 were not the same people as the youth of the Soweto uprising 1976, but notionally they confronted a strikingly similar experience - except that formal democratisation had removed much of the attraction from the politics of resistance. It ought to come as no surprise, however, that the youth of the mid-nineties displayed exactly the same resilience in response to their marginalisation. It should also come as no surprise that in lieu of the political movement, the youth of the 1990 found an alternative place of belonging and social cohesion within the criminal youth gangs. Like the political party before it, the gang offered a cohesive alternative sub-culture to the dominant culture which had rejected these kids. The gang too boasted its own uniform, its own language and, through criminal activity, it also filled a void through offering alternative forms of wealth creation.

However, what is perhaps most significant here is the fact that the gang also entrenched violence as a key means of acquiring status and graduating within its hierarchical structures. For example, the gender-specific nature of this predatory violence, meant that it became the mark of masculinity in these social conflicts, with women disproportionately suffering as the victims. Youth identity has thus remained fundamentally enmeshed with violence as a means of acquiring power and status. (Segal et al) However, whist the marginalisation of young people during the apartheid era gave rise to violence which was categorised as socially functional - due to it being in the name of liberation - the same experiences of marginalisation now give rise to violence which is deemed to be anti-social and criminal in nature.

In truth, what this example offers, is a graphic illustration of how continuity in the experiences of marginalisation of young people in South Africa, has resided at the root of much of the violence which has dominated this society. However, the shift from the politics of confrontation to the politics of negotiation associated with the formal democratisation of South African society, has been matched - not by an end to such violence - but to the subtle slide from political to criminal violence as a direct response to these same experiences of marginalisation.

Reconciling Political and Criminal Violence': Debates Around Amnesty, Impunity and Reconciliation in The Truth and Reconciliation Commission4

Despite the continued levels of violence associated with the negotiation phase in South Africa, amnesty and indemnification of those responsible for past atrocities was a foundation stone of the whole negotiation process. This was a pre-condition in the negotiation process and it is argued by some that - were it not for the political compromises on the question of amnesty - there may have been no negotiated settlement and no democratic election in South Africa. However, for a new government, eager to establish its commitment to human rights and responsible for producing a creative and visionary bill of rights, the resultant impunity for violators of basic human rights was a bitter pill to have to swallow. This is so, despite the fact that this was not a blanket or unconditional amnesty as was the case in Chile (it was an amnesty available to perpetrators only in exchange for full disclosure). Indeed, the greatest consequence of this was arguably the damage it threatened to do to the integrity of the process designed to restore the rule of law and a culture of human rights to South Africa after apartheid. It is difficult to expect the chicken or bicycle thief in post-apartheid South Africa to respect the law, if the political assassin literally gets away with murder - especially where it has historically been approved for those excluded from political power, to be on the wrong side of the law.

After the 1994 elections, one of the first acts of the new Minister of Justice, Dullah Omar, was to signal his intention to establish a Truth and Reconciliation Commission (TRC). Omar was aware of the binding nature of the Post-amble to the Constitution - which included the negotiated agreement on the provision of amnesty to perpetrators of past human rights abuses - and accepted responsibility for enacting legislation which would provide mechanisms and criteria for the granting of amnesty. But Omar, along with a strong, vocal and well organized non-governmental human rights sector, was also concerned that an amnesty process was essentially geared towards the interests of perpetrators and that if South Africa were ever to come to terms with its past, build national reconciliation and establish a society based on the respect of human rights, then it would primarily have to cater for the needs of victims and survivors.

The argument here was that, despite the noble motivations for national reconciliation, any amnesty arrangement without a parallel obligation to disclose the systemic nature of the crimes perpetrated, in fact has potentially grave implications for the long-term prospects of sustainable democracy. In particular, for the victims of these abuses of power - on whichever side of the political spectrum they may reside - the implication would be that they would never have access to the information essential to their rehabilitation, let alone any prospect of redress at civil or criminal law. One possible consequence of this is that, in the absence of any public acknowledgment, coupled to the impossibility of restitution through the courts, widespread resentment could well manifest itself in informal retribution at both an individual and a collective level, resulting in escalating rather than de-escalating violence under the new democratic dispensation.

The TRC arguably represented a creative response to this very concern. It was therefore decided to combine the process of granting amnesty to perpetrators, with the processes of officially establishing the truth about past human rights abuse, providing victims with some form of reparation and making recommendations to the President as to measures the government should take to prevent any future recurrence of systematic violations of human rights. By attempting to foreground the needs and interests of victims, the TRC can be viewed as an attempt to restore the moral balance to an amnesty agreement, borne of negotiated political compromise, and which would otherwise engender a reconciliation-building enterprise in South Africa which exclusively ministered to the needs of former perpetrators. This fusion of an amnesty process with a truth recovery and reparative process, is without precedent among similar initiatives internationally. It also demands that any evaluation of the TRC must be undertaken in its own terms, that is, as a process designed to prioritize the needs and interests of victims of past gross human rights abuses.

However, the processes of negotiated transition in South Africa entailed more than just a political compromise on the question of amnesty. As noted above, the delicate historical process of negotiated transition in the period after February 1990, also resulted in the new government of national unity inheriting a dependence on many of the former regime's civil service institutions and personnel. Of particular significance here, are the agencies of state security - including the policing and military institutions, as well as those of criminal justice - which were central to sustaining the apartheid system deemed illegal at international law. Many of these institutions and personnel were directly involved in the clandestine torture, extra-judicial executions and enforced disappearances of those involved in resistance to the system (or in sustaining the legal framework which allowed such abuses to occur), yet the nature of the transition means that they also continue to be depended upon to sustain "law and order", within a society confronting a potential upward spiral of criminal violence. In addition, many of those who came to power within the new Government of National Unity, were themselves actively involved in the armed resistance to apartheid which, it is claimed, also entailed the violation of human rights within the country and beyond its borders.

The restorative enterprise of building of reconciliation, therefore, is not simply about whether prosecutions do or do not take place, but rather - as has been noted above - what measures are possible to transform and rebuild public confidence in state institutions and personnel (as well as in the rule of law) which have been inherited through a negotiation process? This is clearly a wider agenda which reaches well beyond the limited scope of the TRC's mandate. Nonetheless, it is arguable that the central test which must be applied in evaluating the TRC's contribution to reconciliation in South Africa, revolves around its "forward-looking" contribution to the transformation of such institutions of state, rather than its "backward-looking" exercise in historical evaluation. Indeed, this process is equally essential to the long term consolidation of hard-won democracy in South Africa. These perspectives were broadly hinted at by the Parliamentary Committee of the General Council of the Bar of South Africa, which argued that the general concern with political reconciliation must

… be balanced … by a concern for the administration of justice … It is apparent that a blurred pursuit of 'reconciliation and peaceful solutions' without adequate regard for its impact on policing, the courts, and the control of crime, will do more to threaten social stability. (Bar Council: 1992, 1-2)

Once again, the TRC arguably offers a potential (although perhaps imperfect) solution to the problem posed by this negotiated compromise. In the absence of full disclosure or a truth recovery process, these inherited institutions of the new government could well retain unchallenged their organizational culture of clandestine, unaccountable and covert activity. This institutional culture has historically been fostered by the myriad of legislative measures which have actively preserved secrecy and governmental privilege in the name of state security and which have thus contributed to widespread corruption and abuse of power. The TRC enterprise is therefore as much about recovering the truth about systematic human rights abuse within state institutions (as part of an enterprise to transform these institutions), as it is about investigating individual victims' cases so as to facilitate their personal healing. It is a mechanism pregnant with the potential to begin the process of building transparency into governance and entrenching a human rights culture in South African society and within the institutions of state. As such, it has the potential to serve not only a backward-looking remedial role, but a pro-active role in consolidating democracy as well. In part, any evaluation of the TRC must be about whether it in fact lives up to these expectations.

In this and in other respects, evaluating the successes and the failures of the South African TRC is an infinitely complex task, precisely because the TRC ought essentially to be as much a forward-looking as a backward-looking process. The long term achievements and/or failures of the TRC in contributing to the building of a human rights culture, as well as to the re-establishment of the rule of law and the re-building of popular confidence in credible institutions of state in post-apartheid South Africa, will only be properly evaluated in the years to come. These are goals which, by definition, currently remain intangible and difficult to measure - although it is arguable that in its "tip-toe" approach to building reconciliation, the TRC did not do enough to force these institutions and practices into the scrutiny of the TRC's spotlight.

Furthermore, to the extent that the TRC is viewed as an exercise in restorative justice based on an elaborate objective of building national reconciliation, it is all the more imperative that we do not judge the TRC enterprise in isolation from either the constraints imposed by the very nature of a negotiated settlement in South Africa, or from the full range of vehicles designed to service this objective of reconciliation. To judge the TRC outside of this context would inherently be to set it up to fail. In the final analysis, the TRC is just one of several mechanisms for retrospective justice and reconciliation in post-apartheid South Africa. More than anything else, reconciliation resides in the substantial redress of past inequities under apartheid - in social and economic justice which reaches well beyond the limited reach of legally-based punitive justice. The ambit of the TRC was limited to dealing with only a small percentage of (the most serious) human rights abuses. Full social justice is, therefore, as much dependent on the establishment and functioning of the Human Rights Commission (to engage with and redress the full spectrum of human rights denials), the Gender Commission (to deal with the legacy of gender inequality in South Africa), the Land Claims Court (to deal with the history of dispossession), the Youth Commission (to deal with the sustained marginalisation of the youth sector), etc., as it is about the TRC. Few of apartheid's evils can be undone, nor can all of them even be engaged with by a TRC process which is only concerned with the most gross of human rights violations. In this context, perhaps the greatest moment in redressing systematic human rights abuses of the apartheid era, was the very process of democratization itself - a process effectively guaranteed by the agreement which lay at the root of the formation of the TRC and by the harsh political realities of a negotiated amnesty based on full disclosure of the gross violations of human rights for which amnesty is sought. However, it remains possible and is fundamentally important, to critically evaluate the TRC in terms of some of its own stated objectives - and particularly to scrutinize its operations and assess its processes, through the eyes of victims and survivors themselves. This is all the more essential considering the extent to which the South African TRC is being widely and often uncritically marketed as a model for other countries in transition. Yet the TRC represents a brand of "reconciliation" which demands some scrutiny in is applicability to other societies emerging from civil conflict.

Because of its delicate political task to examine human rights violations on all sides of the South African conflict, the TRC proved to be subject to substantial pressure to constantly demonstrate its even-handedness. It is arguable that - in some instances - this has resulted in an overly tentative process and approach to building reconciliation, in which the Commission proved reluctant to fully utilize its substantial powers of search, seizure and subpoena. The domination of right wing opposition to the TRC and its extensive attempts to secure the support of right wing political parties, meant that the TRC resisted any "assertive" opportunities to acquire information, but instead sought to delicately win over voluntary right wing support for the Commission as a social enterprise in building reconciliation. Unfortunately, as a result, few perpetrators voluntarily came forward to seek amnesty during the early period of the TRC's operations (with the exception of many who had already been convicted or jailed for their past activities), putting considerable pressure on the TRC's amnesty process. Indeed, it is arguable that the flood of applications for amnesty which did occur towards the end of 1996, was less the result of a looming cut-off date for amnesty applications (this date was originally scheduled for 15 December 1996, but was extended by the State President in response to a request from the TRC), than it was the result of the successful prosecution of Eugene De Kock - a notorious apartheid assassin who, during his trial, provided extensive information about other senior state operatives who were involved in gross human rights abuses. In some respects, this is illustrative of the fact that far from being totally incompatible with it, the threat of successful prosecution in fact remains directly functional to the successful process of truth recovery linked to a conditional amnesty option.

However, whilst the TRC's Amnesty Committee was plagued by controversy and popular misunderstanding, its Human Rights Violations Committee remained largely immune from such politically-rooted problems. Consequently, the great strength of the TRC resided in the operations of this Committee - which needed to make no moral or political distinctions between the experiences of victims from all sides of the conflict. The result was a uniquely powerful process whereby a full spectrum of those who suffered gross violations of their human rights within the conflicts of the past, testified before the Committee and before the South African public. The social impact of this process of public testimony has been the greatest achievement of the TRC - and will undoubtedly have a pervasive influence on South African society in the years to come.

Yet whether the TRC actually lived up to its billing as an exercise in restorative justice for victims must be scrutinized. Certainly it is arguable that in ignoring the precedents set by international public interest law, and holding the amnesty provisions of the National Unity and Reconciliation Act (the TRC Act) to be constitutional, the South African Constitutional Court did a grave disservice to the long term credibility of the institutions of criminal justice and the rule of law in South Africa. Equally important, it has been suggested in some quarters that the TRC's "discourse of forgiveness" - by placing unrealistic pressure on survivors of human rights to forgive the perpetrators - did more to render silent the very survivors in whose name the TRC was ostensibly motivated. This was further compounded by the fact that the TRC only had powers of recommendation in respect of reparation measures for survivors - recommendations which government has been apparently reluctant to act on (in part due to the massive financial implications). The result is, that having sacrificed their claims to criminal prosecutions or civil actions, most survivors stand to receive very little by way of reparative compensation. Built into this recognition ought also to be an acknowledgement that the simple process of testifying or of telling their stories, does not inherently entail psychological healing or reconciliation. Unresolved trauma through such a process can equally lead to very destructive responses, rendering all the more important the delivery of psychological service as an integral component of the truth recovery process.

Conclusion: The Changing Nature of Violence in "Post-Conflict" South Africa

In the final analysis, it remains difficult to draw any linear conclusions about whether the South African TRC has made quite the contribution to reconciliation that is often marketed by its most ardent supporters and assumed by international audiences from a distance. Certainly, it would be a grave mistake to judge the TRC by the obvious shortcomings of its final report - which simply cannot hope (and does not pretend) to reflect the full complexity of thirty five years of history. The great value of the TRC must be recognized as process rather than as a hard-copy end product. Yet by the same token, one would be wise to heed the warning against a report or a process which simply offers a 'sanitized public transcript' of reconciliation which suggests the absence of sustained anger, emotions of vengeance, or ongoing levels of violent conflict in post-apartheid South African society.

Indeed, there is a grave risk that through the testimony and confessions of a few, a truth is constructed which disguises the sustained levels of marginalisation and exclusion which continue to reflect the systematic oppression and exploitation of black South Africans under apartheid. This view represents a romantic notion of a post-conflict South Africa in the wake of the TRC and denies the extent to which the fundamentals of social and economic justice have not been undertaken by the TRC through its much narrower mandate. Despite the fact that this was not the TRC's mandate, some of the strongest criticisms of the South African TRC process nonetheless revolve around it's failure to do full social and economic justice. Hamber notes this and - citing Mamdani (1996) - centres his analysis on the 'atomised' manner in which the TRC dealt with victims. Thus Hamber argues that:

When victims are too narrowly defined, the notions of direct perpetrators and victims can be weighted too heavily. The result is an over-emphasis on direct perpetrators of gross violations and insufficient focus on the indirect beneficiaries of the apartheid system … . With the benefit of hindsight, it is now apparent that it was a mistaken and simplistic assumption that truth-telling, public testimony and confession would guarantee reconciliation. From the outset, the TRC should have been saying that truth alone does not equate with reconciliation and transformation, and that truth is just one of the components of the process. (1999:2-3)

Hamber concludes that:

Reconciliation has been a smoke screen to obscure the fact that, given the government's acceptance of a range of compromises, and their seeming commitment to neo-liberal economics, transformation will at best be gradual. (1999:6)

Yet in the continuity of marginalisation and exclusion which the TRC did not hope to fully redress, resides the simple truth that far from overcoming conflict and violence in South Africa, the roots of such violent confrontations have essentially remained the same. In the slide from political to criminal violence, we should detect that it is simply the forms and expression of violent conflict which has shifted in nature.

It ought not to come as a great surprise - considering the historical criminalization of ordinary political activity under apartheid - that the post-apartheid era demonstrates a high level of violent crime which is frequently popularly rationalised in political terms. It must be acknowledged that there is a grave risk that a sense of impunity based on the granting of amnesty to confessed killers, may actually compound the problems of non-existent popular confidence in the rule of law or in 'politically polluted' institutions of criminal justice in South Africa. The result is sustained or growing levels of violent crime - or anti-social violence - which presents as if it is a new phenomenon associated with the transition to democracy, but which is in fact rooted in the very same experiences of social marginalisation, political exclusion and economic exploitation which are slow to change in the transition to democracy and which previously gave rise to the more socially functional violence of resistance politics. The criminalization of politics and the politicisation of crime are really flip sides of the same coin.

The implication of this analysis is that it sets a rather more stringent test by which we must measure the achievements of the TRC in its stated objective of ensuring that such violations of human rights do not occur again in South Africa. Rather than presuming that the risk is of such social conflict merely playing itself out along the same lines of political and racial cleavage as in the past, the real challenge resides in a recognition that this social conflict expresses itself through new forms of violence. Indeed, the risk is that the TRC may even have contributed to a sense of impunity which compounds the problem of burgeoning violent crime. (Simpson: 1998d) Nor is this a phenomenon which is unique to South Africa. In fact, in this simple formulation lie some of the most fundamental potential lessons about the nature of societies in transition from autocracy to democracy.5

In fact, it is in the context of violent crime that the gravest threat currently presents itself to an embryonic human rights culture in South Africa. Understandable popular hysteria and moral panic over the levels of violence has begun to generate a backlash against human rights which are perceived as only servicing the perpetrators of violence - at the expense of the victims. The implications for freezing processes of institutional culture change within criminal justice institutions is best reflected by the sustained levels of police brutality and ongoing concerns about police torture and deaths in police custody - forms of violence which reflect much of the continuity amidst all the changes taking place in South Africa.6

There are undoubtedly times when all countries may have to sacrifice legal principles in the name of political pragmatism - in order to end wars or to achieve peace. However, so long as this is done with scant regard for its impact on the credibility of the criminal justice system and of criminal justice processes, we breathe life into the culture of impunity which is a foundation stone of criminal behaviour in any society. At some point when amnesties are granted, someone has to bear the moral responsibility - not only for the political violence of the past - but also for the violent crime that has emerged in many countries after transition to democracy and within newly deregulated and emerging economies, once the so-called political violence has decreased. Ultimately, in South African society, the practical translation of the rhetoric of reconciliation into reality, depends upon whether reconciliation initiatives reach beyond the limits of formal political and constitutional change, to tackle those deep rooted social imbalances, which - at the most fundamental structural level - underpin the culture of violence.

Notes:

1 Much of what is set out in the following pages is drawn extensively from the work of Rauch (1998).

2 Much of the following section is drawn from Simpson and Rauch (1997).

3 This section of the discussion document draws extensively upon Simpson (1998a).

4 This section is primarily based upon the extensive evaluation of the South African Truth and Reconciliation Commission undertaken by staff and the Centre for the Study of Violence and Reconciliation. In particular, see Simpson (1998c).

5 In a comparative context which considers Latin America and South Africa, see Hamber (1998b) and Mazure (1998).

6 There were 737 reported deaths in police custody or as a result of police action during the twelve month period from April 1997 to March 1998. 429 such deaths were reported in the six months from January to June 1998. Bruce, Liebenberg and Atkins (1998).

References:

Bar Council of South Africa, (1992), "Memorandum by the Parliamentary Committee of the General Council of the Bar of South Africa".

Bruce D, (1998), "Towards a Strategy for Prevention: The Occurrence of Deaths in Police Custody or as a Result of Police Action", Report Compiled for the Independent Complaints Directorate (ICD), Centre for the Study of Violence and Reconciliation, Johannesburg.

Deng F, (1997), "Preventive Diplomacy: The Case of Sudan", Preventive Diplomacy Series, No.1, ACCORD, Durban.

Hamber B, (1998a), "Thoughts on the Relationship Between Reconciliation and Transformation in Post-Apartheid South Africa", Extract from a Public Lecture at the Annual General Meeting of the Catholic Institute for International Relations, London Voluntary Sector Resource Centre, London.

Hamber B, (1998b), "Living with the Legacy of Impunity: Lessons for South Africa about Truth, Justice and Crime in Brazil", Latin American Report, Volume 13 (2), July-December, pp. 4-16. Centre for Latin American Studies: University of South Africa.

Hutchful E, (1999), "Human Rights, Good Governance and Conflicts in Africa: An Overview", Paper delivered at the Commonwealth Human Rights Initiative Conference, Conference on: ‘Pan-commonwealth Advocacy for Human Rights, Peace and Good Governance in Africa', Harare.

Mamdani M, (1996), "Reconciliation Without Justice", South African Review of Books, No.46.

Mazure L, (1998), "Truth Commissions, Human Rights and Impunity: Contemporary Views of Chile, Argentina and South Africa", Centre for the Study of Violence and Reconciliation, Occasional Paper, Johannesburg.

Nathan L, (1998a), "The Challenge of Demilitarisation in Africa", Paper Presented at the International Conference on Leadership Challenges of Demilitarisation in Africa, Arias Foundation for Peace and Human Progress, Africa Leadership Forum and UNDP, Arusha.

Nathan L, (1998b), "Crisis Resolution and Conflict Management in Africa", Paper Presented at the Consultation of the Nexus Between Economic Management and the Restoration of Social Capital in Southern Africa, World Bank and Centre for Conflict Resolution, Cape Town.

Nathan L, (1998c), "Early Warning and Action in Respect of Intra-State Crises", Centre for Conflict Resolution, Cape Town.

NEDCOR Report, (1995), "Crime and Violence in South Africa", Johannesburg.

Rauch J, (1998), "Police Reform and South Africa's Transition", Northern Ireland Programme, Kennedy School of Government, Harvard University, Boston.

Segal L, Pelo J and Rampa P, (1999), "'Asicamtheni Magents - Let's Talk Magents': Youth Attitudes Towards Crime", Crime and Conflict, No.15.

Simpson G, Mokwena S and Segal L, (1992), "Political Violence in 1990", in Robertson M and Rycroft A (Eds.), Human Rights and Labour Law Yearbook 1991, Vol.2, Oxford University Press, Cape Town.

Simpson G, (1998a), "'From Reform to Transformation' - Non-Governmental Organisations and the Negotiated Transition to Democracy in South Africa: The Truth and Reconciliation Commission as a Case Study", International Consultation Supporting Democracy in Indonesia, International NGO Forum on Indonesian Development (INFID), Jakarta.

Simpson G, (1998b), "Reconstruction and Reconciliation: Emerging from Transition", Development in Practice, Vol.7, No.4.

Simpson G, (1998c), "A Brief Evaluation of South Africa's Truth and Reconciliation Commission: Some Lessons for Societies in Transition", Centre for the Study of Violence and Reconciliation, Johannesburg.

Simpson G and Rauch J, (1993), "Political Violence in 1991", in Boister N and Ferguson-Brown K (Eds.), Human Rights Yearbook 1992, Oxford University Press, Cape Town.

Simpson G and Rauch J, (1997), "Reflections on the First Year of the National Crime Prevention Strategy for South Africa", Centre for the Study of Violence and Reconciliation, Johannesburg.

South African Police Service (SAPS), (1998), "Priorities an Objectives", Internal Document, Pretoria.

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