Twenty Years Since Democracy in South Africa: Reconsidering the Contributions of the Truth and Reconciliation Commission.

• Date: 01 January 2015
• Author: Rose, Evelyn

The brief history of transitional justice has seen the rise of truth commissions as an increasingly popular approach to addressing mass violations of human rights (Balint 2012). The South African Truth and Reconciliation Commission (TRC) (2) is the best known, and most revered and reviled institution of this kind, with scholarly debate about it continuing years after completion of its work (Teeger 2014). This article seeks to contribute to this discussion, first by presenting a brief discussion of transitional justice and the role that truth commissions can play in this process, before outlining the TRC's theoretical foundations, mandate and processes. Subsequently, I will critically engage with some key critiques of the Commission and its report, arguing that these inadequately consider the inherent constraints and limitations within which the TRC operated. I argue that these critiques reveal a misreading of the purported or actual intentions of the Commission, and that they fail to acknowledge the important contributions it did make. In my own analysis of specific language employed by TRC representatives and in the post-hearing report, I suggest that the construction of a therapeutic discourse around the country and its history was designed to cultivate a collective national identity and a unified purpose amongst South Africans. I also argue that the public expression of private pain through victim testimony promoted a sense of compassion and community, which had enduring positive effects. In the final section of the article, I explore the TRC's legacy within the context of contemporary challenges facing South Africa, highlighting the need for concerted attention to the structural inequalities that underlie these problems.

Transitional justice and the TRC

In the relatively young field of transitional justice, it is acknowledged that societies emerging from conflict or repression need some established way of dealing with the aftermath of trauma, enabling them to move towards a peaceful future (Mani 2002). Transitional justice measures generally refer to 'a diverse set of practices aimed at making the development of democratic governance possible' (Stauffer 2013: 30). Simplistic understandings of transitional justice often create a falsely dichotomous relationship between the purportedly conflictual demands of peace and justice, where peace is represented by amnesty-based approaches, and justice, by formal trials (Huyse 1995). Truth commissions, however, offer a more complex and fluid understanding of justice, as well as recognition of the limitations of traditional jurisprudence (Cole 2010). As quasi-judicial, state-based institutions, they possess the necessary status to produce official and authoritative findings, yet are not bound by the narrow confines of law (Balint 2008; 2012). Unlike courts, they are able to focus on the process of information-gathering, and use the diverse information they collect to create a broad interpretation of the past with which to inform the future (Boraine 2000a; Miller 2008). In particularly volatile contexts, they can also represent an effective and less destabilising alternative to prosecutions (Moon 2008) whilst still offering some degree of accountability for crimes committed. They can be seen to offer at least the potential for an effective 'compromise justice' (Bakiner 2014).

In the South African context, the TRC was established in 1995 as part of the negotiated political settlement to end apartheid rule. Its task was to promote national unity and reconciliation through investigation into gross violations of human rights perpetrated between 1960 and 1994 (TRC 1998). The enacting statute of the TRC limited its remit to cases of severe physical mistreatment; a very narrow scope for enquiry that was pursued in the interests of political stability (Mamdani 2000a). This particular configuration of the truth commission model emerged as a creative attempt to not only reconcile peoples and a society, but to reconcile the very concepts of justice and peace, which are frequently regarded as mutually exclusive (Wilson 2000). Offering amnesty was a political concession designed to promote a stable transition (Cobban 2007), although some limited accountability was sought by making individual amnesties conditional upon appearing before the Commission and testifying to involvement in crimes (Chapman and van der Merwe 2008; Sriram 2004). It was decided that this approach would best reveal the truth about the past (TRC 1998), without too vigorously pursuing those responsible for the abuses, and thus not jeopardising the fragile new democracy (Campbell 2000). Although the TRC conducted institutional hearings that considered the role of various sectors in the apartheid order (Chapman and van der Merwe 2008), its main role was as a forum in which victim testimonies and amnesty applications were heard. The processes demonstrated a commitment to a victim and narrative-centered approach to truth-finding (Cobban 2007; Moon 2008; van der Merwe and Chapman 2008), and it revolutionised the truth commission form towards one that relied heavily on personal testimony and public performance (Stauffer 2013).

The TRC was hailed as an exemplar of restorative justice, which was juxtaposed against retributive justice and promoted as a morally-superior approach (Moon 2008; Tutu on ABC 1998; van der Merwe 2008). Since the impact of pursuing a retributive approach to past harms would have been extremely destabilising, it could be argued that the decision to embark on restorative justice was in fact made on the basis of pragmatism rather than morality. Based upon the premise that crime is a violation of one person by another, restorative justice aims to repair harm by involving victims, offenders and communities in the justice process (Johnstone 2002). Perpetrators are generally required to provide material or symbolic restitution to victims as a contribution towards rectifying the harm they have caused, an important restorative justice precept that was neglected by the TRC. Although spontaneous gestures of atonement were offered in some cases, there was no restitutive requirement of perpetrators. The TRC recognised this problem, but unfortunately did not seriously acknowledge or address it (van der Merwe 2008). The disaster of the state-funded reparations scheme, which offered meagre payments, some of which remained unpaid a decade later, also did little to adequately fulfill the reparative aspect of the restorative approach (Bharucha 2001; Clark 2012; Moon 2008; Stauffer 2013).

The TRC's work also reflected a broad ideology of reconciliation (Teeger 2014). Reconciliation is widely accepted as a crucial prerequisite for the consolidation of democracy in post-conflict settings (Huyse 1995), yet the concept remains contested. It often conjures images of a religious or spiritual reconciliation, where spontaneous acts of contrition and forgiveness suggest an element of divine inspiration (Laplante 2008). Deborah Matshoba, for example, a victim of apartheid violence who testified before the TRC, describes reconciliation as being 'like when Jesus Christ was the on cross and said: "Forgive them, for they know not what they do"' (cited in Krog 2003: 157-8). But reconciliation can be problematic when presented as a 'mysterious Judaeo-Christian process' (Krog 1999 in Bharucha 2001: 3771), where forgiveness is an obligation and a presumed precursor to reconciliation. Pressure upon victims to forgive perpetrators can be inappropriate (Clark 2010), as personal experiences of trauma may make this impossible or unhelpful. It is thus important to distinguish between reconciliation as interpersonal forgiveness, and reconciliation as a broader discourse that emphasises the value of transcending past divisions and creating a more peaceful and tolerant coexistence (Moon 2008). Following Arendt, Bakiner (2014) suggests that reconciliation can be more about reconciling with reality rather than with other people. Since the term 'reconciliation' implies a return to a previously-experienced and more positive state of existence, its viability can also be questioned in the South African context. As there was never a former period of peace, racial equality and freedom, what was envisaged for the future was something entirely new (Christie 2000; Mamdani 2000a).

The TRC's work was also underpinned by a therapeutic ethos which can be identified in the extensive use of metaphors of sickness and healing to describe South Africa and its history. This framework is expressed when South Africa is referred to as 'a sick society' (Mandela 1999 cited in Gee 2000: 40), 'a traumatised ... people' (Tutu cited in Christie 2000: 91), and in the TRC Report (1998), where racism and apartheid are treated collectively as a 'sickness that has afflicted our beloved motherland' (TRC 1998: Vol 1: 17). Truth is promoted as having an intrinsic cathartic potential (Bakiner 2014; Moon 2008) (3), and, clearly illustrated by the motto printed on banners in the hearing venues, the TRC's work is presented as 'healing our past' (Hoffman and Reid 2000). The Truth Commission's work was clearly intended to construct a sense of rupture between the past and present, allowing for new beginnings and the creation of a different collective future (Teeger 2014).

Metaphors of sickness and healing can also be seen to have a specific political function. Referring to South Africa and its history as having suffered from a 'sickness', in effect pathologises the country, its history and the apartheid system, creating an effective method of externalising and depersonalising the problematic past, presenting it not as something for which anyone can or should take responsibility, but as a horrifying and uncontrollable outside force that inflicted the nation. As Klein (2013) and Gloor and Meier (2013) argue in the context of broader narratives around violence against...