On 11 May 2011, the Department of Justice and Constitutional Development gazetted regulations for the payment of educational assistance and health benefits exclusively to victims identified by the TRC. The regulations were gazetted after only a very superficial consultation process with victims and other stakeholders and do not address the key concerns expressed by these stakeholders.
The South African Coalition for Transitional Justice submits the following comments regarding the May 11, 2010 General Notice 282 published in the Government Gazette. The SACTJ consists of the Khulumani Support Group, Centre for the Study of Violence & Reconciliation, Institute for Justice and Reconciliation, Human Rights Media Centre, South African History Archives, International Center for Transitional Justice, Freedom of Expression Institute and the Trauma Centre for Victims of Violence and Torture.
Executive Summary of the Submission
The Coalition objects to the Notice 282 regulations on procedural, constitutional, and international law grounds. The Coalition's first main objection is the failure of the Department of Justice and Constitutional Development (DoJ) to meaningfully involve victims in the conceptualisation and drafting process. All victims have the right to public participation, and despite their substantial efforts to engage with government over the past twelve years, they have consistently been denied any meaningful opportunities to participate and partner with government.
The Coalition's second main objection is the failure of the DoJ to extend these educational and medical benefits to all victims of gross human rights violations, as contemplated in the Promotion of National Unity and Reconciliation Act of 1995 (the TRC Act or the Act)—the enabling law behind these regulations. This closed list policy is inconsistent with the plain and just interpretation of the Act. The Act contains no provisions that support a closed list of victims eligible for reparations; it only stipulates the type of harm that a person must have suffered in order to be considered a victim. Furthermore, the closed list policy conflicts with the purpose of the Act, which seeks to rehabilitate and restore the human and civil dignity of victims.
Moreover, our Constitution promotes social, economic and community rights. This closed list policy is contrary to the Constitution preamble, which commits to healing the divisions of the past and establishing a society based on social justice. It is also contrary to the Constitution section 1 values of accountability, responsiveness, and openness. A closed list policy is offensive to victims' constitutional right to equal protection under the law. The DoJ's differentiation between victims bears no rational connection to any legitimate government purpose. It moreover amounts to unfair discrimination since it impairs the fundamental human dignity of thousands of victims who are not on the closed list.
Further, the failure to extend reparations to all victims of apartheid violates South Africa's obligations under international law, reflected in a number of human rights instruments that South Africa has ratified. The Universal Declaration of Human Rights as well as the International Covenant on Civil and Political Rights provides that every person who has been a victim of gross human rights violations is entitled to an effective remedy. South Africa lags behind countries such as Brazil, Peru, Guatemala, and Sierra Leone, which have established ongoing victim registration procedures. Other countries such as Argentina and Chile have repeatedly extended or reopened victim registration procedures.
The Coalition is also concerned that the many unnecessarily complicated administrative procedures contained in the Notice 282 regulations will potentially render the proposed assistance inaccessible to many.
Therefore, the Coalition respectfully submits the following comments and recommendations, including: that the DoJ undertake an open and transparent process of consultation and dialogue with civil society to revise the Notice 282 regulations so as to be more responsive to victims' needs; that the DoJ allow all those who are victims of gross human rights violations under the criteria specified in the Promotion of National Unity and Reconciliation Act to access these educational and medical benefits; that the DoJ establish ongoing victim registration procedures and take affirmative steps to register all victims of gross human rights violations.
The South African Coalition for Transitional Justice
The SACTJ is an umbrella body of organizations working to advance the rights of victims of past conflicts and to hold the South African government accountable to its obligations. The member organisations are committed to helping secure the rights of victims of apartheid-era human rights violations, raising awareness about these rights and holding government accountable to its obligations. The Coalition focuses on issues that impact the rights of victims of apartheid-era abuses including pardons, prosecutions, reparations and disappearances.
South Africa's experience confronting the legacies of apartheid has played a ground breaking role in the development of the field of transitional justice. However, South Africa has to date failed to provide accountability in many deserving cases or to deliver adequate reparations to victims who sacrificed so much for the liberation of the country. While the promulgation of these regulations does reflect at long last an acknowledgment on the part of government that action is needed on the question of reparations, these proposals are seriously defective in many respects.