Trading justice for truth

The conflicts in former Yugoslavia and central Africa have highlighted the problems of justice and reconciliation. South Africa’s Truth Commission, which reports finally later this year, is a unique experiment bringing together publicly the violators of human rights and their victims. But can this version of truth unify a nation?

The World Today
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The relatively peaceful South African transition was greatly eased by the vast resources at the disposal of the state and the private sector-led economy. The negotiated revolution would not have been possible without the security of pensions and the incentive of vast retrenchment packages.

The literature on transition has underrated the availability of by-outs as a precondition for compromise by hard-liners in power. In many ways, the so-called South African miracle is better dubbed the ‘purchased revolution’.

On the other side, members of the liberation armies not incorporated into the official defence force also receive a small pension. Many other potential trouble-makers were bought off by being put on the public service payroll.

It was legal continuity and a relatively rich economy that allowed key security bureaucrats of the old regime to abandon control of the state peacefully in return for a golden handshake. Huge payouts went to police generals who retired for ‘health reasons’ or easily found alternative private sector employment.

African military rulers and their underlings elsewhere who depend on the state for their main income cling to power because they face not only loss of office, but economic insecurity, unless they have siphoned revenue into foreign bank accounts.

Moral vacuum

At the moral level, however, a purchased revolution amounts to a compromise that satisfies neither side. The elitist pact leaves a moral vacuum for activists who had been indoctrinated with notions of a ‘just struggle’ and feel cheated of victory because the old oppressors continue in their privileged roles in the economy and, to a lesser extent, in the civil service.

The apartheid bureaucrats, on the other hand, resent being demonised by so-called ‘terrorists’, against whom they merely upheld, what they see as, ‘civilised standards of law and order’. Since both sides have to co-exist, they cannot vent their antagonisms as before and instead wage a symbolic war about the moral highground.

The grand spectacle of a public Truth and Reconciliation Commission (TRC) fulfills the need to clarify the moral winners and losers in the negotiated revolution. It is part of an ongoing struggle about political legitimacy and has little to do with learning from the past so that the past does not haunt the future.

Arbiters of the past

In addition, the compromise between the African National Congress (ANC) and the Afrikaner state ignored other influential groups, interested in the outcome of the long struggle. Domestic Non Governmental Organisations, which had bravely sided with the ANC in the anti-apartheid protest, found themselves increasingly marginalised by returning exiles. The ANC simply absorbed and dissolved their United Democratic Front.

Traditional liberals at the English-language universities, in the alternative press, in professions and particularly, the churches, were neither part of the deal nor necessarily future beneficiaries. Initially sidelined as interested onlookers, the TRC would bring them again into the centre of the new order: the clergy and associates assumed the role of reconcilers and arbitrators of the past.

The international community, too, had been excluded from the negotiations but was nevertheless keen to influence the shape of the future. It was American private funds (from the Soros Foundation) that financed the ‘Justice in Transition Institute’ and important preparatory work for the TRC legislation. The European Community, particularly Holland and Denmark, generously helped the TRC with police investigators, legal assistance and funding.

Need for cleansing

Paradoxically, many of the politicians centrally involved with the negotiations, including a sceptical President Nelson Mandela, Vice-President Thabo Mbeki and a weary former President de Klerk, initially thought that a Truth Commission might undermine reconciliation. They had to be persuaded of the need for a cleansing exercise, if only for the sake of the victims. Within the ANC, it was the Justice Minister, Dullah Omar – long closer to the ideological rival Unity Movement and himself a targ e t of state assassination attempts – who skillfully pushed for a Truth Commission.

In effect, by 1995 the pressure to fill the moral void of the purchased revolution had built to such an extent that all major political actors would have lost face had they openly opposed investigating a past in which they said they had few actions to regret and nothing to hide. In addition, there was the obvious temptation to exploit the past for their own purpose.

The spectre of delegitimising a political opponent by dragging corpses out of the closet proved tempting for all party strategists. What they did not reckon with was the likelihood of a high moral drama developing its own dynamic beyond the control of its scriptwriters with all the state’s main actors at the centre stage.

Politics of memory

Analysts of the ‘politics of memory’ have identified four basic ways in which a new democracy can deal with its unsavoury past:

  • Amnesia or forgetting practiced in the Spanish transition from the Franco dictatorship, in post-war Japan and Russia. Churchill, too spoke of a ‘blessed act of oblivion’ in 1946. Democracy does not necessarily depend on Geschichts bewältigung or Vergangen heits auf arbeitung (‘going through history’ or ‘forgetting the past’) in the way Germany successfully grappled with its Nazi past.
  • The purge of collaborators from public office has been most thorough in the Czech Republic and the former East Germany. However, the disqualification of civil servants presupposes skilled substitutes who are not available in sufficient numbers in South Africa because of apartheid education. The acceptance of the compromise also relied on the continued tenure of the average Afrikaner bureaucrat. Forty-two percent of all employed Afrikaners worked for the state in what could be called a unique nation of civil servants.
  • Nuremberg type tribunals are the hallmark of victors. In contrast, the South African transition was based on a continuing stalemate. Neither side had been defeated.
  • Truth Commissions, first practised in Latin America, represent a compromise between war tribunals and dealing with past atrocities by ignoring them. Amnesia would have shortchanged millions of victims of racial laws and weakened the moral foundations of the new order. Imposing justice or revenge, on the other hand, was ruled out by the need for reconciliation in an ethnically divided society. Bilateral indemnity for past crimes formed a crucial precondition for the relatively peaceful changeover of political power. Amnesty upon full disclosure proved the mutually acceptable formula for future co-existence.

South Africa’s TRC faces several major predicaments: the problem of legislated reconciliation; official truth and common memory; individual culpability vs. collective benefits; and knowledge without acknowledgment.

Revealing the truth is said to reconcile the nation but the opposite could also happen: the more gory the revelations, the greater the clamour for justice through retribution. In short, the truth can undermine reconciliation – and herein lies the basic contradiction of the South African commission.

Moreover, genuine reconciliation presupposes a certain degree of forgetting. In the post-war German debate, Habermas stressed that the ‘crass demand for reconciliation’ necessitates ‘the promotion of forgetfulness’. Just as the old Nazis were freed of blame as allies in the Cold Wa r, so the apartheid advocates are now needed for growth and development. Cynics argue that the TRC merely uses the victims as legitimising decoration for the ritual of cleansing in which the real beneficiaries are the past rulers.

Yet reconciliation, or at least peaceful coexistence, is the prerogative of a society in which colonial settlers are as legitimately at home as their colonised subjects. Afrikaner/white minority rule fits neither into the category of ‘criminal regimes’ nor ‘regimes of criminals’, as Tina Rosenberg has labelled the distinction between Eastern Europe and Latin American military dictatorships.

It has been pointed out that ‘reconciliation’ amounts to the imposition of a religious value on unwilling participants. Forgiveness cannot be engineered by bringing perpetrators and victims into contact. Only victims can forgive and some crimes remain literally ‘unforgivable’. Timothy Garton Ash has pointed out that, ‘the reconciliation of all with all is a deeply illiberal idea’: some values are irreconcilable. Liberalism teaches how to coexist tolerantly with irreconcilable conflicts rather than engineer totalitarian closure or normative homogeneity.

Sharing truth

Claiming that ‘truth made public is itself a form of justice,’ may be true for the victims who have their suffering publicly recognised and their dignity restored. The perpetrators, however, emerge unashamed – claiming they merely fulfilled orders or fought a war against alleged foreign communists who are now fellow citizens.

Yet seeing former regime representatives admit and apologise for their misdeeds is in itself a gain. Nobody can now deny past atrocities. As Michael Ignatieff has written: ‘Truth commissions can reduce the number of permissible lies in a society’, the Orwellian scepticism about an official truth notwithstanding.

However, claims that truth commissions can heal a torn nation through a shared truth can be disputed both because the truth is liable to be constructed differently by competing interests and also because nations do not possess collective psyches. Guilt can therefore be ascribed only individually and not collectively.

It is doubtful, whether a ‘traumatised’ nation can be cured by having a repressed memory restored. Medical metaphors are misleading when applied to collectivities. The benefit of tribunals or truth commissions lies in disagregating the misdeeds of individuals from the blame of all. From this perspective the South African TRC serves the opposite of ‘an exercise in Afrikaner bashing’, as Constand Viljoen, the former head of the military claimed.

Collective guilt

The white editor of an influential South African paper has postulated that ‘only a collective apology from the white community…can lead to a real reconciliation.’ Not only does this presuppose collective guilt, falsely including those whites who opposed apartheid, but leaves unresolved who can speak for a deeply divided racial collective. However, all whites were beneficiaries, regardless of their attitudes.

Mahmood Mamdani has pointed to the difference between Rwanda where there are many perpetrators but few beneficiaries of genocide, and apartheid South Africa with few perpetrators and many beneficiaries.

The focus of the TRC on ‘gross human rights violations’ obliterates the benefic i aries of systemic discrimination and the countless ordinary victims of apartheid. Should the beneficiaries pay compensation? Can victims and beneficiaries be defined in racial terms, as there were also black benefi- ciaries and white victims? Can there be reconciliation without economic justice?

The TRC has highlighted individual gross human rights violations and individual fates of victims at the expense of institutional and corporate complicity. Although bodies such as political parties, professional associations – medical, judicial, business and media – and the churches, were invited to reflect on their contribution to sustaining or legitimising apartheid, most denied such a role.

From the ANC to the National Party and the military command they all took ‘collective responsibility’ for the misdeeds of their underlings. They claimed they ‘never condoned’ or were even aware of such actions, although they should have known about them or in most cases, could have prevented them, given the political will.

Locked into political competition for votes or credibility, political parties, including the ANC, can hardly be expected to discredit themselves by admitting their involvement inbreaking principles of natural justice.

The much publicised hearings of Winnie Mandela revealed some details but little new solid evidence. The TRC scheduled the controversial side-show at the end of its public performance. It also served to further question Ms Mandela’s suitability for public office. The former wife of the president remains a tragic victim of circumstances not of her making. While he rose to sainthood in prison, she – banned, isolated and unwilling to subject herself to the discipline of the ANC – sank ever deeper into the traps of a regime that benefitted from her self-destruction.

Public disclosure

Unlike the Chilean Presidential Commission of 1990, Andre du Toit has pointed out, ‘the TRC is essentially a public and democratic enterprise’. As a parliamentary commission it was forged through heated public debates, public hearings about the suitability of commissioners and regularly televised proceedings. Hence, the TRC reflected the new political power relations with the representatives of the old regime underrepresented, unlike the parity of the eight person Chilean Commission.

The perceived leanings of most commissioners, and particularly their staff , towards a broad ANC version of history affected the legitimacy of the TRC in the eyes of competing parties whose leaders feared being perpetually discredited. This was reinforced by the harrowing accounts of victims, seeking acknowledgments and, hopefully, some later compensation.

Unlike the dramatic impact of the Argentinean Nunca Mas report of 1986 which was released after long in camera investigations about the disappeared, the South African trauma was spread over three years. Moreover, the names of perpetrators were not secret and the faces of the torturers appeared daily in the media. Such public discourse undoubtedly contributes to historical education or political immunisation but whether it establishes a unifying truth is questionable.

Confession first

Despite the expectations of the old security establishment, no blanket and collective amnesty was granted. Instead amnesty was made contingent on full disclosure by individuals and demonstration that their crimes were politically motivated and proportional to their assigned role in the conflict – the Noorgard principles.

This trade-off between full confessions and amnesty has not been practiced anywhere else. Whether the threat of future prosecutions of those who refuse to apply for amnesty will be realised, remains to be seen.

The success rate is mixed with regard to crucial senior political actors. Like most senior apartheid politicians, the top military brass had nothing to reveal. Leaders of the Zulu-based Inkartha Freedom Party boycotted the TRC as an instrument of their ANC enemies. Yet the police chiefs related their stories to the commission, mostly out of spite for their former political bosses whom they perceived as refusing to take responsibility for their own orders.

This breaking of the ranks of a once solid ethnonationalist supremacy clarified the lines of command, although the originators of most atrocities were long known. While the TRC officially confirms widespread knowledge, it has mostly failed to secure acknowledgment. However, even if the unlikely case were true that former President de Klerk as chief executive of the state suspected or knew nothing of the misdeeds of his security forces, one could still expect an acknowledgment of the atrocities because they were committed in the name of the apartheid state and its defence.

There is the possibility that a TRC reinforces the fallacy that the past has been put behind the nation, what the Germans termed 1945 ‘Stunde Null’ (zero hour) as if a new counting has begun despite the continuing legacy of an abominable past. Instead of actively engaging with the past, Adorno warned, the past is always in danger of being committed to oblivion through the process of accounting for it ‘once and for all’.

The ultimate success of the TRC will be measured not in how complete or ‘accurate’ a picture of the past it will paint, but in how much future political education it will generate. Walter Benjamin suggests that proper mourning consists of recalling past injustices to nourish current struggles for emancipation. Notions of justice are derived from the narratives of past iniquities, although, as Nietzsche has reminded us, a consciousness shaped solely by the vanquished dead forgets the living.