Decades after the truth and reconciliation process, South Africans are still seeking justice.
Twenty years ago the first public hearing of the Truth and Reconciliation Commission of South Africa was heard and tomorrow marks eighteen years since the handing over of that commission’s findings to President Nelson Mandela. The Truth Commission, which has since been replicated in dozens of other countries, was an integral component of South Africa’s post-apartheid transition to what many hoped would be a more open, freer society. Now, two decades after its founding, a whole generation of young people has grown up in South Africa since this first hearing, and the commission has become a part of the new nation’s founding myth but South African officials rarely stop to ponder its success and limitations. If apartheid is mentioned in speeches today, it merely serves to provide reasons for problems the government has not been able to solve. Preoccupied with the present, with party-political scheming, elections, and scandals like the one surrounding renovations to President Zuma’s private home (financed with taxpayer money), the African National Congress—a former liberation movement and now the incumbent ruling party at the national level—is slowly losing its grip on its electorate.
The apartheid past lingers on in today’s South Africa.
While the Truth and Reconciliation Commission (TRC) was intended to be a powerful tool for restorative justice, the apartheid past lingers on in today’s South Africa. The notion of “the past in the present” suddenly pops up everywhere—a fairly new, but pervasive, feature in public discourse. The recent rise of South African students—from privileged universities like the University of Cape Town to the underfunded University of Limpopo in Polokwane—exemplifies this new cry for justice. Increases in tuition fees sparked student protests across the country last year (inspiring the hashtag, #FeesMustFall); but the protests, still ongoing, are equally directed against the non-transformation of the entire education system, the bias in the curricula, and the financial exclusion of the majority of the so-called “formally disadvantaged” groups. Students have not protested so loudly and decidedly since the 1976 Soweto uprising. Indeed, this and other apartheid-era protests against minority rule are today drawn on as models for current protests.
For the older generation, which was directly affected by apartheid and involved in the struggle against it, the impression that nothing much has changed since the formal ending of apartheid in 1994 is not new. Being disadvantaged, excluded from access to opportunities, land, and employment is a daily experience for many South Africans. Apart from a small group who managed to jump onto opportunities produced through individually targeted measures to correct the past (such as the Black Economic Empowerment program, which introduced a more diverse ownership scheme for large companies), the majority of South Africans have not had the chance to shape or direct their life trajectories. On the contrary, thanks to a neoliberal economic system that uncritically embraces the market economy, many inequalities have become further entrenched. South Africans are faced with a situation where the state (and the international community, for that matter) does not offer much in the way of transformation or upward mobility.
How can those who suffered the most during apartheid, the victims, emancipate themselves from past experiences of violence in this sobering socio-political and economic environment? The past was addressed formally and spectacularly with the internationally acclaimed TRC, but for most victims it turned out to be more of a symbolic exercise than a genuinely transformative endeavour.
How do elderly, injured, and struggle-tested women and men make themselves heard? In terms of the law as a means to address—and possibly resolve—past conflicts and atrocities, the post-TRC story is unfortunately quickly told. The TRC submitted some 500 cases to the government for further investigation and possible prosecution. Up to today, only a handful of cases have been prosecuted. Over the past ten years, only one case (against four former apartheid police officers who abducted, tortured, and killed Nokuthula Simelane, a guerrilla fighter with the armed wing of the ANC) has been argued—and even then, only because her family filed a case before the High Court to force the National Prosecution Authority to do its work.
How can those who suffered the most during apartheid, the victims, emancipate themselves?
In the wake of the country’s Truth and Reconciliation process, victims have been involved in a number of cases as part of the civil society umbrella group, South African Coalition for Transitional Justice. For instance, in 2005, the Ministry of Justice promulgated amendments to its policy concerning prosecutorial discretion. The changes related to the prosecution of cases “emanating from conflicts of the past”—specifically, those committed prior to May 1994 (that is, prior to the general elections that marked the end of apartheid). The amendments suggested that perpetrators could apply to the National Directorate of Public Prosecutions for “indemnity” from prosecution for politically motivated crimes. For President Thabo Mbeki, under whose administration many perpetrator-friendly policies passed, the prosecutorial leniency was a way to “unearth the truth” about the apartheid past. For victims, though, it was merely an indication that their government was willing to risk a re-run of the TRC’s amnesty process, in which convicted perpetrators could seek freedom from civil and criminal prosecution for past abuses. They challenged the newly lenient policy in court and won.
The law also proved ambivalent in relation to more prominent complaints. In 2001, the Khulumani Support Group, the main apartheid victims’ organization in South Africa, filed the so-called apartheid litigation to US courts, alleging that multinational companies aided and abetted the apartheid security forces in the perpetration of gross human rights violations. The case is still pending and has undergone an interesting journey through different courts. However, apart from a single settlement reached with General Motors and some political turbulence at home, nothing has sprung from it for victims.
What do such large class action suits mean for victims in their everyday lives? Does the law help to bring about real social change? These questions are similarly relevant when assessing the legacy of the Truth Commission, which has been criticized by victims’ group for granting testimony to only a fraction of victims—21,000 (for a point of comparison, the Khulumani Support Group holds records for about 105,000 members). Unequal accumulation, distribution, and ownership of wealth are rampant in today’s South Africa, just like under apartheid rule. Certainly, the TRC did not have the mandate to investigate the economic dimension of apartheid; it exclusively focused on gross human rights violations. Hence, apart from the lesson that a narrow mandate of inquiry excludes most experiences of structural violence, South Africa also teaches us that the state needs to be willing (or forced—and internationally supported) to implement the recommendations of a truth commission.
Most of all, parts of South African society but also the sympathizing international community tends to look the wrong way when looking for the seeds of social change. We must trace social change, not in legal victories alone, but in terms of victims’ subjective, everyday experiences of life. And we must be sensitive to the challenges that individuals face when seeking redress for past abuses. To position one’s self as an apartheid victim in a society that wants to move on, for example, presents a stumbling block for many in South Africa, in a country where the danger of “being different” is real and witchcraft accusations are one means of keeping people from breaking rank.
We must pay attention to practices of victims themselves who, in their daily coming together, comfort one another, open up a crèche for the children of the next generation, and draw attention to the intertwined perpetration of criminal and political crimes today. We can call it trauma; but most of all we must listen to those who, with very little support, try to go beyond what had and has been inflicted on them in a systemic and endemic manner: the degradation of their personhood. And in order to be truly transformative, these fragile efforts must be supported by state and local communities.
Looking at the recent student protests, we see parts of South Africa waking up and pursuing a just society—a society for which apartheid victims have always yearned and long demanded. To enable real transformation, however, the western world—particularly business and the governments regulating financial flows and commodity trade—must finally play their part in redeeming rather than cementing inequalities.