Newspaper headline on a Johannesburg street refers to a government plan in 1982 to cede territory and people to Swaziland. The people in question were not consulted in the matter.
Credit: UN
It is now more than 10 years since South Africa's Truth and Reconciliation Commission (TRC) began gathering testimonies about gross human rights abuses committed during apartheid.

Over the course of two years, the TRC took statements from more than 21,000 survivors. In its seven-volume final report, the commission ultimately pointed the finger at apartheid-era political leaders and security operatives; particularly citing the National Party government - its State Security Council.

The TRC, headed by Archbishop Desmond Tutu, was a process aimed at uncovering the truth of apartheid-era violence by offering individuals amnesty, in exchange for public disclosure of crimes committed. It continues to be cited as one of the best examples of transitional justice in the world, but for many people in South Africa trying to confront the horrors of the past, it did not deliver the healing it promised.

Many who worked closely with the TRC are increasingly critical of the government's follow-through. Critics point out that reparations to survivors were far short of TRC recommendations, and that the government has not yet allocated the proper resources to investigate and prosecute apartheid's most horrendous crimes. As a result, observers say, reconciliation is far from finished

"The tendency has been to give the international community a picture of a reconciled nation," said Oupa Makhalemele, a researcher in the transitional justice programme at the Centre for the Study of Violence and Reconciliation in Johannesburg. "As much as a bloodier situation was prevented in terms of racial conflict, we still have a long way to go to address the legacy of racial segregation."

The individual outcomes of South Africa's project – namely, monetary reparations and limited criminal prosecutions – will raise important questions about a nation's ability to pursue a meaningful reconciliation.

Birth of the TRC

Under apartheid, government secrecy about state-sponsored violence meant countless numbers of South Africans – particularly among the nation's black majority – were detained, mistreated, abused, tortured and killed. Censorship laws at the time distorted and obscured the government's increasing preoccupation with security, which included military and police engagement within and outside South Africa's borders.

South Africa's TRC was first established in 1995 to shine a light on this obscured past. The court-like body was to be a crucial part of the transition to a fully democratic South Africa; a nation whose constitution stressed a need for "understanding but not for vengeance; a need for reparation but not for retaliation".

To this end, the TRC process offered amnesty to perpetrators who testified before the Commission, on the condition that their crimes were politically motivated, and that they disclosed the whole truth of their actions. The TRC’s Amnesty Committee eventually granted amnesty to 849 perpetrators, but rejected 5,392 applications.

It also encouraged victims of gross human rights abuses to testify about their experiences before the Commission’s Human Rights Violations (HRV) Committee. More than 21,000 shared their stories, though advocates maintain this is only a fraction of those who experienced major human rights violations during the years of the TRC’s mandate - 1960 to 1994.

"We estimate that throughout South Africa there are about 110,000 survivors of gross human rights violations nationwide," said Dr Marjorie Jobson, acting director of Khulumani, a support group for survivors of apartheid-era violence. Jobson said the organisation currently has more than 48,000 members who have documented their stories with supporting evidence, affidavits and police records.

Survivors frustrated after process

Most survivors called to testify before the HRV committee got a single reparations payment of R30,000 (roughly US $3,700 at the time), financial compensation that was to be symbolic as well as practical. Yet this figure is well short of the TRC's recommendation of a multi-year payment totalling nearly US $17,000.

In recent weeks, Archbishop Tutu has made numerous public statements criticising the relatively small payment to survivors.

The government has pointed to its development strategy, which includes educational and housing initiatives, which it claims will benefit all previously disadvantaged citizens, including apartheid-era survivors.

But some survivors are frustrated and say they feel forgotten. "I’m not happy, because what the government promised us, they didn’t do," said Jacob Mzumkhulo Ramokonopi, who was shot in politically-motivated revenge violence in Katlehong township in South Africa’s East Rand in 1992.

"They promised that they would find out what happened to you," said Ramokonopi, 36. "The government was also told by the TRC to give us money for six years, but we just got the one-time payment."

Though he received his reparations grant in 2004, he said it lasted only three months. Most of the money went to food for his extended family, and to renovating a cluster of outbuildings where he still lives with his siblings and their many children. He remains unemployed, and dependent on his younger brother, who is the family’s breadwinner.

Throughout the country, thousands of other survivors are also disappointed that they never had a chance to testify to the TRC before its hearings closed in 1998.

In November 1990, Florina Mkwena’s husband was murdered in political violence in their neighbourhood of Zonkizizwe, in the East Rand. “It is still a pain in my heart even today,” she told IRIN. “I still want to get the truth about what happened. I want to know what the government is doing to investigate, and what it will do about the situation.”

Holding the well-worn file where she has kept the paperwork related to her husband’s death, Makwena said she lamented that she never had the chance to add her story to the public record, nor receive the reparation money that other survivors did. "When I went to the TRC, I found it was already closed," she said.

Limited investigations and prosecutions

In the years after the TRC process, justice has been mitigated by the slow pace of investigations and prosecutions of apartheid-era crimes.

Piers Pigou, a former TRC investigator and consultant for other international restorative justice projects, said only a handful among the thousands of instances cited by survivors and perpetrators during the TRC were fully investigated.

“Almost all – definitely the vast majority – of those who came to the TRC’s HRV Committee didn’t receive anything back that they didn’t already know,” said Pigou, who now heads the South African History Archives.

So while the TRC’s seven-volume final report contributes to the nation’s “big-picture” story of what happened, Pigou said, most South Africans have never seen it.

“The Commission’s output is in general an alien thing to most people,” Pigou added.

Pigou said that the TRC was unable to fulfill its mandate of investigating the cases due to a massive lack of resources and an unrealistic timeframe. “The TRC laid a foundation for ongoing work,” Pigou said. “It is not an end, but only the beginning of a process. But the work never continued.”

The government body charged with continuing the work, the National Prosecuting Authority (NPA), has made little progress.

Mourners at a funeral ceremony for those killed by South African police on 1985’s International Day for the Elimination of Racial Discrimination, at Langa Township in Uitenge.
Credit: IRIN

The South African press reported in early 2006 that the NPA is completing a handful of investigations against apartheid-era criminals, including a number of security policemen and liberation-movement leader, Letlapa Mphahlele, the former commander of the Azanian People's Liberation Army.

But barring a small number of cases, the NPA failed to pursue criminal prosecutions of the more than 5,000 perpetrators who applied for – but were not granted – amnesty.

“In a sense, the last 10 years has seen really no commitment to prosecuting those who didn’t meet the conditions [for amnesty],” said Graeme Simpson, director of country programmes at the International Centre for Transitional Justice in New York.

Nor has the NPA pursued cases of those who chose not to participate in the TRC process altogether. Notably, prominent apartheid-era leaders and known criminals who shunned the process have largely escaped trial, and have in many instances faded into obscurity.

“It’s clear that the big fish are still out there,” said Advocate Howard Varney, a human rights lawyer based in Johannesburg.

Varney said that while some efforts had been made to prosecute apartheid figures such as Wouter Basson, former head of South Africa’s secret chemical and biological warfare project, they were merely “middle management”.

“Survivors are expecting the planners and decision makers of apartheid to be prosecuted, and they are also expecting political leaders to come forward and take full responsibility for the actions of the security forces,” Varney said.

Redefining criminal justice

In January 2006, the government unveiled policy amendments regarding the prosecution of some apartheid-era political crimes. The new rules grant the National Directorate of Public Prosecutions (NDPP) the discretion to choose whether to prosecute select crimes, including murder.

The International Bar Association later expressed “deep concern” about the amendments, arguing that they undermine the human rights of victims by giving the government power to effectively grant immunity.

“In many respects, it’s simply a rerun of the former amnesty process under the guise of prosecutorial discretion,” Varney said.

Varney said the government’s amendments have international implications, because they promote impunity, flying in the face of South Africa's international law obligations.

“Other considerations, not necessarily on an international scale, are that it completely undermines the constitutional design of the TRC process and the compromises victims had to make because of the amnesty factor,” Varney said.

“Amnesty was never intended to be an ongoing process,” he added.

Current government leadership includes those who took up arms during South Africa’s liberation struggle, and critics have speculated that the new policies have been implemented in part to protect those in power.

“The government is not advocating an ongoing process for its own people, and I think it’s because it doesn’t want the light shone back on them,” Pigou said.

"The failure to deal with these things more comprehensively – not just through prosecutions but in communities – undermines our ability to build faith and trust in the creation of a new and legitimate criminal justice system,” he added.

Towards a true reconciliation

Finally, some observers called for new reconciliation processes that focus on the more subtle ways in which all South Africans were affected by – and sometimes benefited from – the apartheid regime.

“The white community largely escaped any introspection into their role and response as beneficiaries of apartheid,” Pigou said.

Looking forward, Makhalemele said civil society and government must “thoroughly and sufficiently” address ongoing racial imbalances if South Africa to live up to its international reputation as a reconciled nation. He said future efforts must include a significant engagement by white South Africans, who largely remain in positions of power and influence.

“And as long as a majority of white South Africans refuse to acknowledge that they benefited from apartheid, it’s hard for them to play a meaningful role in addressing the imbalances of the past.”

Those imbalances are ongoing in most South African communities today, observers say, rendering the existing effects of the TRC process mostly symbolic.

“Despite all of its flowery language around reconciliation, it really had very limited impact in terms of providing healing and justice for survivors and providing reintegration into communities for perpetrators,” said Hugo van der Merwe, project manager with the Centre for the Study of Violence and Reconciliation.

“Those dynamics are ones which stay with society and that require further engagement by government and civil society."
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