The Meaning (and Limits) of Transitional Justice

Transitional justice is concerned with questions relating to how an incumbent civilian and democratic regime should deal with conflicts of the past, in terms of attaining justice for victims of gross human rights violations; for apportioning either legal, moral, or criminal accountability for those violations; and restoring trust in a democratic political order that is grounded in respect for human rights. It is worth clarifying this concept of transitional justice because it is not meant to be an alternative to criminal or social justice. It is a provisional form of justice that seeks an answer to deal with heinous crimes constitutive of a former regime to form the foundations of a new order.

Truth commissions form just one model of transitional justice. The other most notable forms include trials like Nuremberg after the defeat of Nazi Germany, the “forgive and forget” approach as seen after Franco’s Spain and in Namibia, or the purging of former administrations as seen in transitions from Communism in Eastern Europe. Hence, comparative literature on transitional justice — as both an academic, and legal and practical field — tends to frame truth commissions within the “truth versus justice” debate on the one hand; or the relative priority that’s given to the interests of different sets of actors, for example perpetrators, victims, beneficiaries, collaborators, or bystanders on the other. In other words, transitional justice is always and everywhere incomplete and partial.

That a truth commission would be unable to effect justice for all South Africans was not something of which Tutu was unaware and, indeed, he did not intend to deceive the masses into believing it would. Evidence for this is printed in the opening passages of the TRC’s final report in which Tutu responds meticulously to the myriad criticisms made of the Commission at the time, most of which are the same criticisms echoing today from his critics. Before we address some of these, it’s important to provide an account of the social context out of which the TRC emerged.

The Commission

The Truth and Reconciliation Commission was borne from a military stalemate. South Africa was forced to ask itself what priority was greater to bring about the least violent transition: through seeking justice, accountability, and retribution; or restoring human and civic dignity to victims (through truth-seeking and truth-telling, reconciliation and redistribution); or identifying which groups unduly benefited from oppressing the majority.

A critical point, however, was that the range of choice was not as wide as what it may seem with hindsight; it was purposefully constrained, something often lost in the current discourse where hindsight and the idea of the miraculous and peaceful transition mean it is easy to forget how unstable the country was in the early 1990s. The TRC was the product of a compromise rather than an unequivocal victory for anti-apartheid forces.

The immediate political context — that of a negotiated settlement — is reflected in South Africa’s Interim Constitution. This settlement precluded the possibility of criminal prosecutions of National Party officials, as had been seen with the Nazi officials following World War II. The Interim Constitution contained an implicit and explicit provision for amnesty; in other words, amnesty for those who committed crimes was the sine qua non for the negotiated settlement.

This suggests that both sides had agreed that amnesty was a prerequisite for the transition, the establishment of the transitional Government of National Unity and eventual plan for democratic elections in 1994. Neither the outgoing National Party negotiators nor the leaders of the ANC saw truth about the past as a priority, in fact both sides actively sought to bury the details about past violence.

Importantly, the amnesty provision in the Postamble to the Interim Constitution contains no mention of, nor specific requirement for the disclosure of truth about the conflicts of the past. There are some seminal formulations related to the need for “peace,” “reconciliation,” “forgiveness,” and “ubuntu,” which were later incorporated into the Preamble of the final Constitution and the Promotion of National Unity and Reconciliation Act, the legislation that comprised the TRC’s mandate. However, there was no commensurate reference to the imperative for truth in the official discourse which narrated the new, democratic South Africa’s course.

The call for truth was instead articulated by human rights groups and civil society in the early 1990s as information became leaked about the covert killings and torture by state functionaries at the now infamous Vlakplaas, a farm that served as the headquarters for the Apartheid regime’s notorious death squad. These stories were leaked in underground publications like the Vrye Weekblad, where killings at Vlakplaas were linked to unresolved cases of political assassinations at the hands of South African Defence Force Special Intelligence units.

At the same time, after anti-apartheid organizations were unbanned in 1990 — including the ANC, the Pan Africanist Congress, and the South African Communist Party (SACP) — numerous allegations arose about the ANC’s violent disciplinary tactics in its training camps located in Tanzania, Angola, and other Southern African countries through the 1980s, as well as reports about “necklace murders” by ANC-aligned political forces by civilians in townships, in which supposed spies were summarily executed by placing a petrol-drenched rubber tire around the victim’s neck and setting it on fire.

This was all taking place within the context of a “dirty war” in South African townships with conflict between the Inkatha Freedom Party (IFP) and the ANC fueled, again, by the “third force” of the apartheid state security agencies. It is often forgotten in the discourse around South Africa’s “peaceful transition,” that the country was on the brink of a major civil war, and between 1985 and 1995 upward of twenty thousand people were killed.

This context and the disclosures in the early ’90s prompted civil society groups and individuals like Tutu to express the distinctive need for, and right to, truth concerning past violence. If a general amnesty alone had been effected, as had been the proposal by the elite pacts, many of these crimes (both the covert crimes of apartheid’s security personnel as well as those committed by the liberation movements) would have been erased from the official historical record. Within this context, the idea that the call for truth was merely a flimsy and elite-led whitewash of the past is historically inaccurate. Rather, a key innovation of the TRC that was fought for by civil society groups — with respect to transitional justice mechanisms — was to make the amnesty conditional on truth-telling.

The draft legislation of the Promotion of National Unity and Reconciliation Act, which set up the TRC, emerged from approximately a hundred fifty hours of public hearings in January 1995, where various civil society groups, NGOs, religious, mental health, and human rights groups made representations. It was in these public hearings that the two somewhat conflicting ideas of amnesty (provided for in the Interim Constitution), and a public truth process became fused in this idea of conditional amnesty: the controversial truth-in-exchange-for-amnesty compromise, provided certain conditions were met.

This was a novel feature in the taxonomy of truth commissions worldwide, and without it, arguably none of the knowledge uncovered by the TRC would be part of official historical memory. Its role was to enumerate and record the patterns of human rights violations committed between 1960 and 1994, to act as a public acknowledgment of those experiences, and to bring about some form of restorative justice as a basis of a democratic South Africa.  Critically, it was something which was fought for by civil society groups and by Tutu himself.

The Post-Apartheid TRC Legacy

This does not mean that we should not engage with and critique the TRC. Indeed, this was something Tutu actively encouraged. As he wrote in the forward to the TRC report:

Others will inevitably critique this perspective — as indeed they must. We hope that many South Africans and friends of South Africa become engaged in the process of helping our nation come to terms with its past…

One of the most salient critiques advanced by Mahmood Mamdani was that the TRC’s narrow conceptualization of victim and of a “gross human rights violation,” which did not include structural violations such as forced removals and bantu education, and that it individualized both victims and perpetrators, proposing individual reparations, when apartheid was a crime that targeted communities and groups and hence, reparations should have been community reparations.

While this is true, the TRC was candid about its limitations and always saw its role as just the beginning of a broader necessary process for social transformation. It explicitly states in Volume 1 of the report, that the provision of reparations to the “(relatively) few victims of gross human rights violations who appeared before the commission cannot be allowed to prejudice apartheid’s many other victims.” It maintained that resources should be allocated, “for essential social upliftment and reconstruction programmes,” where individual reparations were to be seen within the broader social and political context.

Critics of the TRC have revised its history to portray it as the defining act in a type of “rainbowism” which offered reconciliation for the oppressors without justice for the oppressed, combined with the impacts of neoliberal economic policymaking. Significantly, by the time the Commission submitted the report to President Mandela in October 1998, the ANC had already abandoned the economic policy of the Reconstruction and Development Program, which had mandated massive spending on public infrastructure and social welfare as a means to economic and social development, replacing it with the neoliberal Growth, Employment and Redistribution policy.

The reasons for this change within the African National Congress have been a major point of debate within the South African left. These early shifts by the ANC and the possible reasons for it are critical to understanding the limitations of the post-apartheid project to realize meaningful socialist change. However, the point here is that this economic decision-making was happening largely outside the formal transitional justice processes.

This separation was arguably misguided and related to the critique by Mamdani and others about the way in which the evils of apartheid were conceived and the subsequent ramifications for nation-building. However, even within the limited parameters of their position, the TRC and Tutu as chairperson saw it as the state’s prerogative to champion broad-based redistribution and social development.

This is evidenced in the final recommendations (Volume 5) of the TRC’s report in which it recommends state action in relation to socioeconomic redress: “[the government must close the] intolerable gap between the advantaged and disadvantaged in society by, inter alia, giving even more urgent attention to the transformation of education, the provision of shelter, access to clean water and health services and the creation of job opportunities.” The relationship between the realization of human rights and socioeconomic rights is affirmed when the report states explicitly that “the recognition and protection of socio-economic rights are crucial to the development and sustaining of a culture of respect for human rights.”

It was in fact Desmond Tutu who favored a tax on those who benefitted from apartheid, and this was an issue debated during the course of the TRC’s Institutional Hearings on Business. In relation to this proposal, the final report stated it did not wish to prescribe a particular strategy, but urged that “all available resources” be leveraged to combat poverty and inequality. Similarly, as has been pointed out by commentators on Twitter, Tutu himself did not renege on his call for a wealth tax nor was he content to let racialized “white” South Africans forget their role in continued oppression, reminding them of this in public appearances well into democracy.

As noted in Volume 6, Section 6 of the TRC report, the Reparations and Rehabilitation Committee was not an implementing body, and since the publication of the TRC’s findings there has been no systematic effort by the ANC government to implement its recommendations. This is also evident in the fact that although the TRC denied 5,392 people amnesty (only 849 applicants were granted amnesty), the National Prosecuting Authority did not pursue most cases in which amnesty was denied or when a named perpetrator refused to apply for amnesty at all. This is a failure of the post-apartheid government and should be criticized by all South Africans. However, it is not a failure of Tutu himself nor even of the TRC.

The unwillingness for the post-apartheid dispensation to pursue these recommendations can rather be read as a symptom of a broad unwillingness by the government to incorporate the TRC’s findings as a central part of the post-apartheid nation building project. In fact, when the final report was released it was rejected by many, most notably President Mandela who in a special debate on the report of the TRC in parliament on February 25, 1999, accused it of “an artificial even-handedness that seemed to place those fighting a just war alongside those who they opposed and who defended an inhumane system.”

But, as a transitional justice instrument, rooted in international human rights law, the TRC defended its mission to report frankly on past human rights violations and acknowledge formally the traumatic experience of victims on both sides; and publicly name the perpetrators in an evenhanded way.

Limits to the Transitional Justice Paradigm

Of course, there are limits to the transitional justice paradigm, just as there are limits and constraints built into the liberal legal paradigm. Truth commissions are institutions that demand an acceptance and affirmation of liberal values and economic policy to prevent the recurrence of future human rights abuses. It is no coincidence that they gained traction in the wake of the “third wave” of democratization, where many countries in Latin America transitioned from right-wing authoritarian governments, but have done also alongside a further embrace of free-market economics.

Another concern with truth commissions and their focus on individual reconciliation and healing, which Tutu resonated with, is the notion that societal change is possible by appealing to one’s individual morality. These issues are revealed in the Institutional Hearings on Business, where various bodies like South Africa’s largest trade union federation, Congress of South African Trade Unions (COSATU), attested to the gross human rights violations for which major capitalist organizations were responsible, particularly in the mining sector.

However, these capitalists were never compelled to appear before the TRC nor to seek amnesty for these violations of human rights (given the politics of the negotiated settlement this is unsurprising as the leadership of the ANC was in the process of forming relationships with capital). Moreover, submissions to the TRC articulated that the continuation of capitalist relations of production would lead to a continuation of violence against working-class people into the democratic dispensation. The Communist Party’s submission stated:

In presenting the apartheid political economy as an integrated and coherent system of racial oppression, the struggle against capitalist oppression is twinned with that for democratisation. Resisting the growth of black trade unionism, and calling in the police during strikes, is thus seen as evidence of collaboration with the apartheid system against democratisation.

However, the liberal legal framework within which the TRC operated meant that there were limitations to the changes it would recommend. This is also a reflection of the balance of social forces at the time, in which capital remained strong and had already begun to recruit Black Economic Empowerment partners to company boards.

Here, the morality argument, which Tutu advanced, falls short. In the end, Volume 4 of the TRC report stated that the mining sector bore “a great deal of moral responsibility for the migrant labour system and its associated hardships” and the Commission appealed to the good will of business to pay into a national fund to assist with social upliftment projects.

It is no surprise that this never materialized. The report on the business sector is redolent of a particular misunderstanding of the key sin of apartheid as grounded primarily in its racial discrimination, rather than in the logic of capitalism and the inevitable exploitation it generates, as was proposed by certain submissions from workers’ movements and the SACP.

Defending Tutu’s Legacy

Despite all this, the TRC produced a vast archive of information and video footage which is freely available online. Yet this footage is not used effectively in school history classes, and is almost never broadcast on public television or radio. This is perhaps one reason why so many white South Africans are still able to deny the horror that was apartheid. It is clear from that footage that truth-telling was a significant process for many. It’s hard to dismiss raw, emotional clips where people spoke about the loss of their loved ones or met with people who were responsible for the deaths of parents, partners, and children as elite whitewashing.

In recent years, the ANC — after losing much of its moral status through corruption scandals, state brutality, and factional strife — has tended to use the negotiated settlement, the constitution, and the TRC as scapegoats for its own failure to deliver justice to the majority. Despite being in power for over two decades and possessing on various occasions the two-thirds majority required to amend the South African constitution, it has outsourced its own failures. The attacks on Tutu are part of this attempt to revise history to explain away the ANC’s shortcomings.

The archbishop’s death marks the end of an era: many are lamenting the loss of our moral compass as we face a dearth of moral leadership in South Africa. Indeed, the country is in a major crisis. However, while there is a need to soberly reflect on leaders like Tutu and their role in major processes like the TRC, this must be done with historical accuracy. Instead of blaming certain individuals for structural failings, we ought to learn from the successes and failures of past initiatives, move away from shallow analyses that see every post-apartheid problem as a product of a sellout of figures, and reignite the social movements of which Tutu was a part to combat social inequalities.

Tutu’s legacy and the legacy of the apartheid struggle depends on whether or not that happens.