Accountability for Apartheid?

The legacy of South Africa's Truth and Reconciliation Commission twenty-one years later.

Desmond Tutu in 1985. He would later become TRC Chairperson after Apartheid. Image credit Yutaka Nagata via UN Photo Flickr (CC).

In the mid-1990s, the international community desperately needed a shining example of post-conflict reconciliation. The transition from Soviet domination in Eastern Europe was a mixed success and included some abject failures, the worst being Yugoslavia which descended into armed conflict and genocide, in which over one hundred thousand civilians died. In 1994, as images of the first concentration camps in Europe since World War II were transmitted on television, came news of the genocide of nearly one million Rwandans, most of them members of the Tutsi minority, in 100 days of violence.

In this context, international observers announced and applauded the “peaceful” transition to democracy in South Africa, overlooking the fact that 14,000 South Africans had died between 1990 and 1994 in political violence, most of which occurred in Gauteng and KwaZulu-Natal between supporters of the African National Congress (ANC) and the apartheid-state sponsored Inkatha Freedom Party (aided by a shadowy police unit).

Out of this turmoil, and as a response to the law that would grant over a thousand perpetrators amnesty for human rights violations, the South African Truth and Reconciliation Commission (TRC) got underway in late 1995. Its sole legal mandate under the 1993 Constitution was to provide a mechanism for granting amnesty, but it also offered popular theater. Its hearings featured prayers for peace, liberation songs, dancing, and, with the television cameras rolling, passionate exhortations to reconcile in a spirit of Christian redemption from its charismatic leader, Archbishop Desmond Tutu.

The hearings were attended by sympathetic scholars from all over the world, but especially the United States, with its own unresolved history of racial oppression. Philosophers, legal scholars, theology students, and political scientists all flocked to take part in the South African miracle. However, few ventured outside the TRC hearings to investigate the effects on individuals’ lives in the sprawling urban townships like Sebokeng, Tembisa, and KwaMakhutha that were most affected by the violence. That was where the real story was happening, where ordinary South Africans were piecing their lives together after the maelstrom of apartheid-era violence.

Only a handful of anthropologists (Fiona Ross, Pamela Reynolds, Richard Wilson), psychologists (Brandon Hamber), and sociologists (Jeremy Seekings) conducted research in the townships concurrently with the TRC. Their findings were sobering and represented a direct challenge to the official TRC motto of “Reconciliation Through Truth” that was emblazoned on banners at public hearings.

In part, this piece is a plea for the value of ethnography and close empirical observation to go beyond the official performances of reconciliation to the complex realities of peoples’ lives. Here, the shortcomings of the TRC’s model came into view. As Mahmood Mamdani observed, the TRC could not address the structural violence of poverty and racial exclusion that was legal under apartheid. Financial reparations for victims were paltry and grossly delayed, as former security police officers were given amnesty and financial golden-parachutes by the state.

The TRC Commissioners expected reconciliation to happen solely through victims’ testimony at hearings and did not bring actual victims and offenders together in dialogue. When a consortium including the Center for the Study of Violence and Reconciliation and the South African Police Service applied for a multi-million Euro grant to the European Union to establish a national program of victim-offender mediation, the Commission refused to lend its support. Further there was no mental health support for victims, many of whom testified at the hearings and then experienced profound psychological trauma and depression afterwards.

Contrary to the national narrative of reconciliation, many victims harbored deep-seated feelings for revenge, and this was manifested in outward behavior. Violence motivated by the prior political antipathies continued under the radar and largely unreported in the townships of the Vaal Triangle in which I conducted fieldwork. For example, in Sharpeville and Sebokeng, simmering political resentments led to several political revenge killings in 1995-96, and I wrote in some detail about the murder of ANC-activist-turned-IFP agent Dennis Moerane in my 2001 book The Politics of Truth and Reconciliation in South Africa.

The discourse of national reconciliation didn’t just neglect victims: the TRC had no mechanisms to assist those lower level perpetrators such as African policemen and IFP supporters who wished to return to their burned-out homes in the townships. They continued to face simmering resentment from their neighbors that sometimes erupted in violence.

The continued rejection by the post-apartheid state of justice as accountability and popular notions of just desserts had important societal level consequences. In Latin America in the 1980s and 1990s, human rights during a transition to democracy meant accountability for perpetrators of human rights violations. Military dictators granted themselves amnesties, and these could not be reversed immediately, but human rights social movements such as the Argentine Madres de Plaza de Mayo and Guatemalan Grupo de Apoyo Mutuo continued to push for investigations of the fate of their loved ones and for an end to impunity.

This led to legal actions against some of the highest-ranking perpetrators-General Augusto Pinochet in Chile, General Rios Montt in Guatemala and Adolfo Scilingo in Argentina who is presently serving a 30-year sentence for throwing political activists out of planes on so-called “death flights”). Even when a conviction did not result in jail time, it established the principle that no one was above the law and that a genuine human rights regime was incompatible with impunity.

To be fair, South Africa’s transition did witness a limited measure of criminal accountability. Attorneys-general such as Jan D’Olivera issued criminal indictments against former security police and military top brass, and these led both to convictions (Eugene De Kock) and acquittals (Magnus Malan), as well as instances where an offender would likely have been convicted if they had not applied for, and received, amnesty instead (Wouter Basson, Jack Cronje, Paul van Vuuren, Jacques Hechter). However, the criminal process was detached from the TRC and the two paths did not reinforce one another, for instance, by sharing investigations and evidence.

For most South Africans exposed to the nightly news, human rights came to signify a lack of accountability for perpetrators. There is no reason that the South African justice system could not have pursued accountability to the same level as seen in Latin America. After all, the rule of law and independence of the judiciary in apartheid South Africa was more pronounced than Chile, Argentina or Guatemala under military dictatorship where the judiciary was cowed and subservient.

As Rick Abel illustrated in Politics by Other Means, many key features of authoritarian rule and grand apartheid were challenged and often struck down in the apartheid courts on constitutional grounds. This is not an argument for “justice at all costs,” and accepts that amnesty may be essential to securing the initial peace. Many subsequent arrangements for legal remedy are possible and may include permitting civil claims by victims against individuals and corporations (including those multinationals that profited under apartheid) to go forward in the courts.

Configuring human rights as compatible with impunity has had a number of negative consequences in the last 20 years. It undermined the Constitution with respect to the right to remedy, and established political compromise, not legal principle, as the order of the day. Any variant of democracy, from neo-liberal conservative to democratic socialist, requires individual human rights and the rule of law as the basic rules of the game, and both are eventually undermined by the corrosive power of impunity.

The question that many will ask, is whether the failures of the TRC led to the South Africa we see today that is characterized by massive inequality, poor health and education outcomes, corruption and harrowing political events such as the Marikana massacre.

Despite my criticisms, it would be mistaken to lay too much responsibility at the door of the TRC. The Commission did not create the massive economic and racial inequality in South African society, either alone, or in conjunction with other factors. But nor did it contribute, in the earliest and most delicately-balanced days of the transition from apartheid, to the setting of basic human rights principles that the new post-apartheid republic could then build upon.

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