Twelve years ago on April 27, millions of South Africans flocked to the polls to take part in the first non-racial democratic election following the end of minority white rule. In the years since, and despite engaging in a truth and reconciliation process, South Africa has struggled with the legacy of the past and faces continued and in some cases widening racial divides. Piers Pigou reflects on the unfinished business of South Africa’s truth and reconciliation process.

A ten-year retrospective symposium on the legacy of the Truth and Reconciliation Commission (TRC) convened in Cape Town last week by the Institute for Justice and Reconciliation (IJR) highlighted a number of uncomfortable issues and concerns, both for those intent on carrying on the work of the Commission, as well as those invested in the ‘business of forgetting’.

The symposium focused on the contentious issue of TRC related prosecutions, which have recently come into the spotlight following the introduction by the National Prosecuting Authority of prosecution ‘guidelines’ for dealing with offences that emanated from conflicts of the past and which were committed before 11 May 1994.

The guidelines allow for the National Director of Public Prosecutions to indemnify perpetrators who make a full disclosure regarding involvement in these crimes, and stipulate other criteria, some of which are strikingly similar to the TRC’s amnesty conditions (relating to issues of proportionality, political motives etc), as well as others (i.e. whether or not the victim desires prosecution) that arguably distort the parameters of prosecutorial discretion.

Critics argue that the guidelines, which were introduced without any public consultation, are not only unconstitutional but clearly send out the wrong message to perpetrators. They were after all given a very generous opportunity to apply for amnesty before the TRC, but chose to eschew this, showing contempt for the process and the new government.

Shifting the justice goalposts once again at the expense of victims’ rights and ongoing needs for accountability have raised a host of significant questions. How do you build respect for a struggling criminal justice system, by further indemnifications of perpetrators of gross human rights violations? How do you rationalize to the general populace the importance of prosecuting liberation movement leaders for contemporaneous (often, white collar) crimes, yet protect those who are responsible for heinous crimes from the pre-94 era? Should, indeed can, this past be so neatly ring-fenced from legal sanction?

There is, according to some critics of the policy, a far simpler and less contentious route to follow – and that is to allow perpetrators to plead guilty and to deal with indemnities through mitigation and sentencing process. Criminal records could be subsequently expunged through Presidential pardons. This approach would at least protect the integrity of the criminal justice system.

A small vocal minority, mainly it appears from within the white community, are cynical about continuing endeavours to secure accountability for past abuses, warning that the process must be ‘even-handed’, inferring that some sort of quantitative egalitarianism is the only acceptable route to follow. Dave Steward, the CEO of the De Klerk Foundation, and former DG of De Klerk’s Presidential office, begrudgingly agreed that there should be little sympathy for those who faced prosecutions, but raised broader concerns from “his constituency” about how these issues were being handled. He pointed to the way that the TRC amnesty process had been developed and implemented, asserting that National Party and Inkatha Freedom Party interests had not been taken into account and that there was a strong perception that the process was not partial.

This justification for hostility towards the TRC is not borne out empirically, as it is possible to demonstrate both strengths and drawbacks in investigations and research regarding all the main protagonists of past conflict. A qualitative and quantitative assessment of exactly what was undertaken has yet to be undertaken, but allegations of bias and its impact on the mythical ‘national reconciliation’ agenda is frequently wheeled out as an excuse for not engaging with the Commission’s work and findings, not to mention its unfinished business.

Of course, the issues under examination were always going to be sites of contested truth and deep-seated emotion. Many of the allegations made against the Commission regarding a partisan agenda are simply unsustainable. This was true, for example, of the IFP’s claims with regards to allegations about failures to investigate the murder of IFP leaders. In spite of the IFP’s failure to respond to appeals for assistance and further information, the TRC did conduct relatively detailed investigations and used these as a basis for making findings against the ANC.

It is perhaps not surprising that all three political parties were selective in the information they chose to disclose, and what they have chosen to refute. There is yet to be a systematic evaluation in this regard, but we should not be shocked that all the parties, with varying degrees, were economical with the truth. The ANC was clearly the most forthright, providing an unprecedented amount of information and detail in its submissions, and setting out its actual and possible responsibility for a multitude of armed actions. Approximately 900 of the 1500 individuals who came before the Amnesty Committee’s public hearings were ANC affiliated, and many came forward voluntarily. This was in stark contrast to the approximately 290 security force members who applied for amnesty, most of the basis that they were facing possible prosecution as a result of the State’s investigations. The IFP actively discouraged its supporters from applying for amnesty, with the result that only 100 of so applicants came forward.

The NP and IFP leadership refused to take responsibility for violations carried out by its supporters. The NP maintained the position that the security forces were an arm of government and would therefore be the only authority that could provide detail on individual acts and incidents. Its blanket denial of responsibility for political killings, assassinations and systematic repression rang hollow for many inside and outside the Commission, especially in light of the rapid fusion between politics and security that characterized much of apartheid governance, and evidence that senior Party representatives in the State Security Council had participated in discussions on the neutralization and elimination of enemy elements.

This culture of denial also characterized the IFP’s interaction with the Commission and, of all the parties, it was most active in its non-cooperation and attempts to vilify the process and TRC personnel. This destructive and distracting non-engagement, however, did not prevent the Commission from making a series of important findings about elements that were responsible for targeting IFP members and supporters, as the IFP had themselves alleged. The Commission finding of the IFP as the primary non-state actor responsible for violence remains contested, as it is widely acknowledged that the 21,000 statements made to the TRC represent an unknown proportion of the total number of violations.

Of course, it is also possible to show that the Commission itself was remiss in a number of ways. Its failure to subject the IFP’s leadership to further questioning, its scant attention to ANC abuses in the camps, and the failure to systematically interrogate the functioning and practices of the National Security Management System, amongst many other issues, is indicative of just how much unfinished business remains. Most of the 21,000 who submitted statements to the Commission did not receive any further details regarding their cases, despite pleas for more truth and understanding. Add to this the fact that tens of thousands of eligible South Africans did not engage the TRC for one reason or another, it is evident that there is much more work to be done if South Africans are to understand what transpired and in so doing come to terms with their past, as opposed to sweeping it under the proverbial carpet.

Prosecution provides but one, albeit important, component of a range of options that can facilitate further enquiry and exposure regarding past violations. Research and inquiry can take on many other forms, with and without official sanctions and powers; a variety of methodologies can be explored that work closely with communities, victims and their families, in an effort to develop understanding not only of what happened, but the limitations associated with developing this understanding.

The TRC has made a major contribution by naming and shaming, by exposing some of the worst aspects of what occurred, and by explicitly holding political leadership responsible for the actions of its membership and supporters. The Commission had limited tolerance for what others might have claimed under the rubric of plausible deniability. Such bold statements and findings, in the circumstances of South Africa’s conflict, were arguably necessary, particularly in a context where victims from all sides of the conflict remained fundamentally disempowered.

This imbalance has not been addressed by government’s lacklustre approach to domestic reparations, and its active opposition to efforts in the American courts to hold corporations to account for their complicity in supporting the repressive actions of the apartheid regime. The South African government has spent just over R500 million on individual reparations, considerably less than what has been spent on golden handshakes for apartheid bureaucrats, or special pensions to liberation movement members. Tutu and others continue to express their disappointment at the lack of generosity the government has shown, reiterating that what the TRC had suggested (a grant of up to R23,000 per annum for six years) was more realistic. In response to those who argue against this, that “we were not in the struggle for monetary gain” (a position articulated by senior ANC government figures), Tutu angrily retorted that “it’s an insult – they should shut up!”

The reactions of South Africa’s political leaders to the TRC’s findings and their selective engagement with ongoing issues of unfinished business tell us more about their own priorities, and clearly demonstrate that there is little or no desire to meaningfully engage with the specific needs of victims, survivors and their families and related opportunities to do so.

While there is currently political consensus about the need to develop and entrench an open and democratic society in South Africa, how this is done in relation to the plethora of unfinished business regarding past conflicts remains unresolved. Understandably, we are preoccupied with contemporary challenges, although it is important, especially for those who are the primary beneficiaries of the democratic dispensation, to appreciate that current realities for many remain profoundly informed by past experience and their continuing legacies, whether social and economic, civil and political. Dealing with one set of issues does not excuse not dealing with the other.

The failure of apartheid era politicians to grasp the opportunity and accept responsibility for the violations carried out by security force members was a major disappointment for many. A few former NP members at least admitted that they could have done more, but chose to turn away. In general, however, because of the example set by their political leadership, most white South Africans did not feel the need to engage with the Commission, or assist it to achieve its objectives. This has contributed significantly to the unfinished business of racial reconciliation in South Africa.

Tutu again raised these issues at the Symposium last week, pointing out that the white community had failed to respond to the enormous generosity of the black community. Not surprisingly, he has been subsequently lambasted and attacked for being a racist by elements within the white community and their representatives in the Democratic Alliance. Once again, many in the white community have chosen not to listen or seek to understand the situation and feelings of fellow South Africans whose continuing pain and needs are palpable. They chose not to acknowledge and accept that these circumstances have a correlation with past discrimination and repression, of which they were the primary beneficiaries.

A national survey conducted by the Institute for Justice and Reconciliation in 2004 found that ten years into the new democracy one in five whites would rather go back to apartheid than live in the new South Africa; and in a similar poll, less than a third of former beneficiaries believed that they benefited from apartheid in the past or continue to benefit from it today. This evasion and denial of past responsibility has played itself out in resistance to any form of redress, whether it is individual reparations, affirmative action or the symbolic renaming of geographic locations. This is shocking and rightly condemned by Tutu and others, especially in a context where clearly more can be done.

The politics of South Africa’s truth and reconciliation process, as with the politics of transition, are characterized by compromise and limitations. The TRC provided an historic window of opportunity to all parties involved in the conflict to explain what had transpired from their various vantage points, in order to seek understanding, to take ownership and responsibility for what had gone wrong, and to understand the conditions and circumstances that allowed for this.

Each political party’s (and their respective constituencies) relationship with the TRC and the issues it was grappling with are inextricably linked to specific party political agendas. Differences of opinion regarding each party’s commitment to the goals of the TRC will continue to manifest, especially as the objectives of truth recovery and reconciliation inevitably extend beyond the time and spatial confines of an official commission. Despite the government’s protestations that it is addressing victims needs through its broader development agenda, other transformation processes and an increasing commitment to related heritage and memorialisation projects, the specific interests and concerns of victims as articulated through groupings such as the Khulumani Support Group continue to be largely ignored – especially with regards to further truth recovery and targeted reparations.

Political parties are keen to draw a veil over this period and further efforts to retrospectively examine the conflict. Little mention, if any is made of the huge volume of unfinished business and its implications for accountability and legitimacy. Instead, platitudes are offered in pursuit of an elite-led reconciliation agenda whose foundations appear to be perilously weak.

* Piers Pigou is Director of the South African History Archives. He was an investigator with the Truth and Reconciliation Commission (TRC).

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