The Truth and Reconciliation Commission: A Reflection of the Chasm Between Constitutional Rights and the Lived Experience in South Africa by Rhiain Moses

This article was written by Rhiain Moses and forms part of the South African History Online and the University of York Collaborative Project.

The Truth and Reconciliation Commission: A Reflection of the Chasm Between Constitutional Rights and the Lived Experience in South Africa.

One of the most enduring traits of humanity has been the systematic violence perpetrated against other members of our race. South Africa has experienced a variety of human rights atrocities, and upon emergence from apartheid it launched a new struggle to confront past violations whilst rebuilding the nation. With an acute awareness of the injustices of its non-democratic past, the Truth and Reconciliation Commission was established and a constitution where human rights were given clear prominence was created. Whilst South Africa is widely regarded to have one of the most progressive constitutions in the world, Human Rights Watch states that “the government is struggling to meet demands for economic and social rights” (World Report, 2015: 490). In practice the rights enshrined in the constitution are still unrealisable for a majority of impoverished black citizens (Wilson, 2001). This essay will argue that the rupture between the human rights displayed in the constitution and the lived experience for a majority of South Africans was reflected and foreshadowed in the processes of the Truth and Reconciliation Commission.

Essay

South Africa is widely regarded to have one of the most progressive constitutions in the world, yet the paramount dilemma of human rights within any society is the division between the codified principles of rights (“law in the books”) and the application of law (“law in action) (Hajjar, 2008:595). The case study of South Africa aptly demonstrates the gap between treaty ratification and actual protection. One of the main human rights institutions in transitional South Africa was the Truth and Reconciliation Commission (TRC) which was enabled by the Promotion of National Unity and Reconciliation Act No. 34 of 1995. It resembled a legal body with a mandate to; investigate politically motivated gross human rights violations committed between 1960 and 1994, allow victims the opportunity to tell their story, grant amnesty and draft a reparations policy. The work of the TRC was carried out by three committees; the Human Rights Violations Committee, the Reparation and Rehabilitation Committee and the Amnesty Committee. The Commission was to help smooth the transition towards a future “founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex” (Interim Constitution, 1993:21). This essay does not attempt to evaluate the effectiveness of the commission, nor to allocate blame for current circumstances in South Africa. The socioeconomic path and many social processes of the nation were already set in motion.  However, the TRC was not a linear process and a myriad of forces grappled for space within the liberal outline (Hamber, 2002). This essay will argue that the components which were assimilated or omitted forecast the outcome of the resultant hegemonic project. The problems which occurred throughout the process and the strategic avoidance of certain elements of the past, reflected the trajectory the nation was on, particularly with regards to gender inequality and reconciliation.

Gender Based Violence

Nowhere did the work of the TRC foreshadow the failure of legal rights to be translated into reality more than with issues of gender equality. Pettman argues that in post-revolutionary states where women are proclaimed legally equal, “inattention to or defence of unequal gender relations ensures that national liberation will not mean women’s liberation” (1996:140). The TRC provided the perfect platform to vocalise the suffering of women, yet it was criticised widely for its inability to uncover the truth about women’s experiences and promote gendered justice.

African women maintained the highest attendance at the commission, however when women testified to the TRC they overwhelmingly reported abuses perpetrated towards male relatives (TRC Report, 1998a). Women seemed reluctant to discuss their own human rights violations, particularly with regards to sexual violence. Despite the widespread knowledge of the practice of rape by security forces, liberation movements and opposition political groups, comprehensive understanding did not fully emerge during the TRC hearings, indeed in over 21 000 testimonies only 140 explicitly mentioned rape (TRC Report, 1998a: 298). There are a variety of explanations for this; cultural norms prohibited women from testifying as they feared rejection by family members, loss of status, the hindrance of their prospects for marriage, humiliation for their spouse and many women chose not to testify out of a sense of shame (Ross, 2003). Politically speaking, many high ranking women in government would not admit to being raped for risk of losing stature or jeopardising their career. Clinical Psychologist Walaza states that “if you spoke out you would not only undermine the new government you fought for, but destroy your own possibilities of a future” (Krog, 1999:277).

The silences and the testimonies revealed the prevailing cultural attitude about sexual violence, Ms. Shezi, who was gang raped by the police, testified, “I thought I'd done something that I deserved to be treated like that” (Graybill, 2002:105). Given the supposition many South Africans had about women who experienced sexual violence – that it was warranted and she deserved it – it is not surprising many women chose not to speak out. The TRC therefore faced a large obstacle with regards to its first charge of “establishing as complete a picture as possible” (TRC Report, 1998b:24). Fiona Ross asserts that this silence was a “legitimate discourse of pain” and women were speaking through their silences, therefore it is we who need to learn to listen to the silence (2003, in Graybill, 2002:105). Unfortunately in the post-apartheid era this has not occurred and the issues the TRC faced with regards to women’s silence and the dominant assumptions about sexually abused women have been maintained, if not worsened.

The Founding Provisions of the Constitution endorse South Africa’s resolve to build upon a foundation of equality, democracy and law, and the first founding provision is “non-racialism and non-sexism” (1996). Despite the constitutional and political changes which occurred between 1990-1994, South Africa now possesses higher levels of rape than anywhere else in the world not at war or embroiled in civil conflict (Moffett, 2006) and levels of violence against women remain endemically high. Moffett asserts that within South Africa contemporary sexual violence is driven by justificatory narratives which stem from the conventions of apartheid. The sanctioned violence by the dominant group against the disempowered permeated all aspects of society, including domestic spaces. Consequently, in post-apartheid South Africa, the subordinate status of women is maintained and regulated through rape in a socially endorsed retributive project for preserving patriarchal order (ibid.). Therefore, whilst the constitution and other legislation has been important for enshrining the right to gender equality, interpersonal relations in South Africa are still marked by extreme misogyny and these ‘rights’ remain nothing more than an aspiration. The South African charity Rape Crisis state that many incidents of rape still go unreported and cite the humiliation of being exposed as a rape victim, due to the continuation of myths which claim the victims behaviour caused the rapist to rape her, as a primary reason (2015). The silences which represented the cultural assumptions about sexual assault in the TRC, are still evident today, and clearly society has not learned to listen.

Gender and Socioeconomic Vulnerability

The TRC’s excessively narrow definition of a Gross Violation of Human Rights (GVHR) has been extensively criticised. Four things constituted gross violations of human rights: killing, abduction, torture, or severe ill-treatment (TRC Report, 1998b:29). This definition had severe implications for the TRC’s capabilities in addressing the gendered violence of the past and gender justice in the future (Borer, 2009). The focus on bodily integrity rights omitted the high levels of structural violence women experienced due to the highly developed system of economic segregation. Socioeconomic vulnerability meant that Black women were repressed during apartheid more than anyone else through; forced removals, restricted access to the labour market, inadequate education, disparate income distribution, and oppression through customary and common law. In addition higher mortality rates due to limited access to health care systems and the economic burden of supporting the family, combined to create a system of extreme poverty, particularly in rural areas (Borer, 2009). Prioritising particular forms of violence in the public record of the TRC, rendered certain types of suffering more visible whilst supplanting other forms of experience and its expression (Ross, 2003). Thus by only sanctioning the articulation of a specific kind of pain, the commission failed to grasp a more comprehensive understanding of apartheid and its systemic consequences for women.

The TRC acknowledged that the definition of GVHR “resulted in a blindness to the types of abuses predominantly experienced by women” (TRC Report, 1998a:318). Despite this being recognised, black women in South Africa are still experiencing the ‘triple oppression’ of class, gender and race today. While there has been increased visibility for women in politics, business and other sectors, poor black women’s access to resources, opportunities and education, as well as their access to growth and wealth of the country is severely limited (Kehler, 2001). The Constitution pledges the delivery of socio-economic rights, including access to adequate housing, health care, sufficient food and water and social security (ibid, 2001), however black women are still bearing the brunt of the existing poverty and struggling to reap the fruits of democracy. Rural women in particular are still disadvantaged due to inaccessibility of education and skills training, and many still suffer under apartheid bequeathed geographies and the institutionalised practices of traditional authorities through customary law.  Successive white governments redefined the institution of the chieftainship to benefit not only a white but a patriarchal hegemony. The chief’s ability to allocate land combined with a deeply masculinist ethos and practice ingrains feminine inferiority and is legitimised through discourses of ‘tradition’, ‘custom’ and ‘African culture’ (Walker, 2004:347). The Constitution and other legislation predicates a commitment to gender rights which is incompatible with the formal recognition of ‘tradition’ and the unelected traditional authorities. Walker asserts that the gap between formal declarations and political practice persists due to the African National Congress’ (ANC) circumscribed accommodation of traditional leaders (1994). The gender inequity in land reform signifies a politics of accommodation and evasion which strengthens gender biases in rural development (Rangan and Gilmartin, 2008). The structural violence and social and economic rights which resided outside the purview of the TRC are still not being addressed or delivered in post-apartheid South Africa.

Amnesty and Forgiveness

The central focus of the TRC was to “promote national unity and reconciliation in a spirit of understanding which transcends the conflicts and divisions of the past” (TRC Report, 1998b: 130). Consequently, the TRC allowed perpetrators to be granted amnesty providing full individual disclosure was volunteered and they could demonstrate political motivation. The commission eschewed notions of retributive justice and instead focused on non-racial, inter-communal and religious understandings of reconciliation (Hamber, 2002). Archbishop Desmond Tutu, chairperson of the commission, articulated this understanding; “We will be engaging in what should be a corporate nationwide process of healing through contrition, confession and forgiveness” (TRC Press Statement, 1995). Nevertheless, the pursuit of a particular type of reconciliation within the TRC is reflected in the nature of the reconciliation achieved presently.

The commission’s propensity to conflate forgiveness with reconciliation unintentionally burdened the victim with undertaking a unilateral act of forgiveness, regardless of reciprocal acknowledgment. Wilson argues that within South Africa, retributive understandings of justice were far more salient than notions of reconciliation as forgiveness. Thus, the commission struggled to encourage victims to assume behaviours consistent with unconditional forgiveness. Amnesty was justified upon the premise that the bearing of truth, by both victim and perpetrator, would lead to catharsis and reconciliation. However, the information garnered from the applications fell short of expectations and few perpetrators grasped the olive branch of full disclosure. All three major political parties were reluctant to cooperate and often their response was “to hedge and obfuscate” (TRC Report, 1998b). This was to be expected from the NP and IFP, but the resistance by the ANC, signalled that the beneficiary of the transition was also unwilling to accept criticism (Merwe and Chapman, 2008). That the begetter of the TRC went to court to prevent the TRC from publishing certain findings, does not demonstrate a commitment to continuing the search for truth and justice (Hamber, 2002).

In fairness, the concept of amnesty was borne out of a political negotiation, but in a recent studySonis et al found thatamnesty had a negative impact on forgiveness (Merwe and Chapman, 2008). Similarly, in his field work Wilson found that a strong desire for revenge still persists, he argues that the TRC did little for “the lives of those living in townships wracked by revenge killings” (2001:187). Amnestyinadvertently associated human rights with the language of pragmatic political compromise (Hamber, 2002:76), not engaging with popular understandings of justice has inhibited the legitimacy and entrenchment of a human rights culture.

The ANC’s reluctance to reveal information during the TRC is also apparent in the lack of political accountability today. Section 32 of the Constitution provides for the right to access information (1996), yet there is a distinct lack of transparency within funding in South Africa. Embezzlement of school funds, hidden private funding to political parties, and the misuse of public funds demonstrates a major gap in South Africa’s anti-corruption framework. Powerful figures act with brazen impunity (Transparency International, 2014), for example President Zuma has recently generated outrage by using illegally and unethically procured public funds to refurbish his private residence. The antipathy displayed by the ANC during the commission is mirrored by their respect for accountability and transparency today.

Race and Equality

The Commission was unable to address these existing manifestations of racial conflict due to its denial of the politicisation of race. The TRC was too brief a process and too restricted in its latitude to adequately address the legacy of racial oppression, however it was strikingly silent on the issue of race. Party politics was the lens of inquiry utilised and race was only acknowledged as an explanatory factor in circumstances where the perpetrator was affiliated to a political party which sanctioned racial violence for political objectives. The TRC not only ignored the internalised values of racial hierarchy but appeared to actively avoid it. Valji argues that during hearings, commissioners noticeably directed perpetrators and victims away from the discussion of race and onto ‘safer’ territory. Consequently, Valji states that the TRC suppressed dialogue on the perpetuation of racism in post-apartheid South Africa (2004:5). Thus, the failure of the TRC to address the intrinsic racialisation of politics and explore broader structural issues, forecasts a future whereby past inequalities and their racial elements would still be apparent.

The absence of a collective memory of the past and the avoidance of racial discourse has allowed racial inequalities to persist today in new guises. Whilst Section 9 (2) of The Constitution of South Africa states; “equality includes the full and equal enjoyment of all rights and freedoms,” (1996) racial discrimination permeates everyday life. A number of black men interviewed in 2007 discussed how wary they were when patronising previous white bars and restaurants in Durban. They employed various strategies to assess and avoid potential racism such as; visiting in large groups, scanning for other black patrons, avoiding sports bars (particularly if rugby was being shown) and finding out from friends which bars were ‘relaxed’ (which the interviewee stated was a code word for ‘racially safe’) (Brown et al, 2011:35). This demonstrates that whilst the evidence of the formalised apartheid system has been removed, racism continues to manifest in South African society. The South African Reconciliation Barometer found that just under half (43.5%) of South Africans rarely or never speak to someone of another race, and a further quarter (25.9%) only do so sometimes (2012). Additionally, Merwe and Chapman found that 36% of blacks and 51% of whites affirmed the statement that despite the abuses, apartheid ideas were good ones (2008: 253).

Furthermore, ethnically motivated hate crime is still extremely prevalent (Simpson, 2005), yet Vilji argues each incident of racial violence causes surprise, “as though there is a genuine belief that come 1994 the country merely stepped across a threshold into unity and solidarity” (2004:7). The evasion of unpleasant but essential dialogue witnessed during the TRC continues today and therefore racially-motivated occurrences are responded to as anomalous extremes. However, if assessed in context they allude to a wider spectrum of antagonistic associations. For example, when a black man was assaulted by three white men on the steps of a hotel in the town centre of Kuruman in the Northern Cape, the violence was not only shocking in itself but it ignited latent tensions within the community. A local councillor recalled a dramatic increase in gun sales, as whites feared a “black uprising” and the police separated along racial lines (Vilji, 2004). Thus discriminatory social attitudes remain entrenched and patterns of violent crime are physically and emotionally ingraining these divisions (Simpson, 2005).

The narrow definition of GVHR ignored the institutional violence of apartheid and individualised responsibility, obscuring the experiences of the majority and concealing the connection between perpetrator and beneficiary (Mamdami, 2002). It could be argued that by fixating selectively on the tragedies of the past, the TRC’s hearings paradoxically detracted from a comprehensive examination of that history (Hamber, 2002: 69).The gap in the TRC’s engagement with privilege and powerlessness in South Africa, has been mirrored in the inadequate scrutiny of ongoing processes of marginalisation. Many structures of past privilege endure and initiatives such as Black Economic Empowerment benefit few, only advancing a black elite who usually exploit influence and networks within the ruling party to further their private businesses (SAHRC, 2006: 200).

In conclusion, the advent of democracy and a society constructed upon a bedrock of human rights is a noteworthy achievement for all South Africans. The TRC was part of this liberalising process, and played a significant role in dividing past and present. For the purposes of this essay I have focused on criticisms of the TRC, nonetheless, the Commission successfully unveiled many atrocities of apartheid, gave victims the acknowledgement previously denied to them, educated the population on how apartheid was a crime against humanity and made several instructive future recommendations. It would have been unrealistic however to expect the TRC to accomplish all of the objectives allocated to it (Merwe and Chapman, 2008). The Commission was a product of and subjected to political tensions and its nature and remit was impacted by external and internal forces. It signified the already disputed nature of South Africa’s broader process, and as a result mirrored the trajectory the nation was on. South Africa has yet to “improve the quality of life of all citizens and free the potential of all persons” (Preamble, Act 108 of 1996). The silences of women, the narrow definition of GVHR, evasion of full disclosure and the omission of race, portend a certain lack of transformation in the ‘new’ South Africa. Thus the problems, omissions and silences experienced during the Commission, reflect the crevasse between constitutional rights and the lived experience in South Africa today.

 


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Last updated : 10-Jun-2015

This article was produced for South African History Online on 10-Jun-2015