The unfinished business - Dumisa Ntsebeza

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The unfinished business

Speech by Mr. Dumisa Ntsebeza, former Commissioner, Truth and Reconciliation Commission (South Africa)

INTRODUCTION

There are two ironies about this paper and the author and the subject.

The first is that the title UNFINISHED BUSINESS happens to be the title of a book in whose authorship I have collaborated. The book's title is UNFINISHED BUSINESS : SOUTH AFRICA, APARTHEID AND TRUTH. You can order the book from a website, details of which you can get from Terry Bell at belnews@wn.apc.org. For every book purchased, the author and I have agreed a free copy will be donated to an NGO.

The second irony is that in the following fortnight, a WORLD CONFERENCE AGAINST RACISM is going to take place in my country, against the backdrop of a veil of threat from the self-styled policeperson of the world, the US. Reports are that the Americans will boycott the event - and probably withdraw their financial support for the event! - if the Conference organisers INSIST on retaining, on the agenda, the item on reparations for slavery and the slave trade in which the US was involved, and the debate on whether Zionism is tantamount to racism.

What arrogance!

But that is just the point!

As commentators have remarked, the Americans were in the forefront of getting the Swiss to agree to reparations to Jews for losses during the Holocaust. The Swiss were prevailed upon to agree to reparations for the Jews because Swiss Banks were repositories of the ill-begotten Nazi wealth that had been rapaciously and murderously seized from Jewish victims.

Now that the descendants of the former slaves from the American Trans-Atlantic slave trade are claiming reparations from the descendants of the white American former slave owners, we have a problem. This is not only a display of double standards on the part of the US Government, it is also a demonstration of an inherent racism in the Americans' approach to the subject given that most of those in the US who articulate the need for reparations for slavery are African-Americans, and those who oppose it are, in the mainly White American administration.

This conference, no doubt, has to confront, I believe in the context of Australian aboriginal people, equally demanding enquiries about the need for reparatory measures, hence the theme of the conference - Moving forward : Achieving reparations for stolen generations

THE SOUTH AFRICAN TRUTH AND RECONCILIATION COMMISSION (TRC)

Both the Preamble to the Promotion of National Unity and Reconciliation Act, no 34 of 1995, and the Postamble of the Interim Constitution, Act no 200 of 1993, recognise the need for reconciliation between the people of South Africa in order for peace and national unity to endure, and for the reconstruction of society to take place.

The Postamble recognises the granting of amnesty to applicants for acts, omissions and offences associated with political objectives and committed in the context of the conflicts of the past as central to the reconciliation process and the reconstruction of society.

The broader aim of the Truth and Reconciliation Commission, though this was not specifically spelt out, was to promote reconciliation and unity between not only perpetrators and victims, but also between beneficiaries and victims. This latter aspect I shall address later.

A number of assumptions were made when the two Acts of Parliament were debated and enacted. It was assumed that reconciliation would be a product of truth telling, and that the truth told would be the whole truth in its fullness. It was also assumed that once the victims learnt the truth about what had happened to themselves, to their loved ones, and to others close to them, they would find it possible, although not easy, to come to terms with the pain and suffering caused by evil acts. It was assumed that they would be able to forgive, even if they could not forget.

It was assumed that knowledge would compensate for the pain that, but for full disclosure, would remain for as long as the details of the atrocities remained hidden. Victims would find it possible to bring about closure to their suffering and pain. It was assumed that acknowledgement by the perpetrators, even if they did not show contrition and remorse, would assist both victim and perpetrator to revisit an act of the past that had caused so much pain to those affected by it. It was hoped that this exercise might cause all those involved to commit themselves to never allowing a recurrence of that ugly past.

This is the backdrop against which we should measure the successes and failures of the TRC, as far as the process of reconciliation is concerned. [1]

HOW THE TRC FORMULATED THE REHABILITATIONS AND REPARATIONS (R&R) POLICY

In our five volume TRC report is contained a detailed account of how we formulated our reparations and rehabilitations policy. We relied, among others, on the South African Constitutional Courts ruling in the now famous AZAPO case .[2]

It is not the purpose of this essay to argue the constitutionality correctness or otherwise of the AZAPO decision. That much has been done in very many journals and by a number of scholars .[3]

For purposes of this talk, it seems to me the importance of the judgment is the following:

All the judges (eleven of them) concluded that in the epilogue of the Interim Constitution of South Africa - Act 200 of 1993 -, there was a requirement for a law to be adopted by Parliament which would provide for amnesty for perpetrators while equally providing for reparations for victims of the political conflicts of the past.

It was left open to the people of South Africa, through their democratically elected representatives in Parliament, to decide on not only the ambit of amnesty, but also the permissible form and extent of such reparations as may be decided upon by the people, taking into account relevant circumstances.

Parliament could decide that proper reparations for the victims of unjust laws and practices of the past justified formulae that did not compel what the Court called irrational differentiations between the claims of those who were able to pursue enforcable delictual claims in a Court against the State and the claims of those who were not in that position, but nevertheless deserved reparations=.

In other words, formulae had to be found that would look at the resources of the State. Government would prioritise the needs of those who were identified victims; that instead of looking at what, in the ordinary course, compensation in a delictual claim would have brought for the victim, the formula would determine what an appropriate award should be in the circumstances.

As per the late Didcott J, whilst the so-called TRC Act (Promotion of National Unity and Reconciliation Act, 34 of 1995) did not grant legally enforceable rights for those who were victims, since victims would lose rights to pursue perpetrators civilly and/or criminally when once they were granted amnesty as a matter of law, the Act nonetheless promoted national unity and reconciliation if it, as a quid pro quo, offered reparations to victims for their losses if a machinery was established to determine such redress .[4]

It is therefore beyond any doubt that the AZAPO decision articulated a jurisprudential basis for a reparations policy that would be a cornerstone of the process to promote national unity and reconciliation.

In any event, the TRC Act (for short) did provide for a reparations and rehabilitations policy, for the committee to make recommendations for interim measures for interim relief, for the establishment of a President's Fund in terms of s42, from which all monies payable to victims would be disbursed.

In considering the R & R policy, - and these facts are dealt with in Chapter 5 of Vol 5 of the TRC Report - the following international human rights instruments were considered by the TRC:

The Universal Declaration of Human Rights;

The International Covenant on Civil and Political Rights;

The Covenant against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment

The Inter-America Conventions on Human Rights.

This was an endeavour by us not only to universialise the notion of payment of significant reparations for victims of political violence of the past, but also to emphasise that a reparations programme anywhere has the sanction of international human rights law .[5]

BRIEF SUMMARY OF OUR RECOMMENDATIONS

For those of you who have read our report, this is cold meat but in the context of this debate, let me merely mention the five components of our policy:

• Urgent interim reparation;
• Individual reparation grants;
• Symbolic reparation / legal and administrative measures;
• Community rehabilitation programmes;
• Institutional reforms.

This policy, as appears in the TRC Report, had been also informed by other truth commissions. In Chile, for example, they provided a so-called pension reparation for families of the dead and the disappeared.

Our policy was also informed by, inter alia:

Discussions and decisions in the UN to award financial reparations to the victims of the eight year Iran-Iraqi War;

The findings of the SKWEYIYA and MOTSUENYANE Commissions, that had investigated gross violations of human rights by ANC exiles in the Angolan camps. The SKWEYIYA Commission, for example, had recommended in its report (August 1992) that those victims that had been the object of maltratment during detention should receive monetary compensation, appropriate medical and psychological assistance, assistance in completing interrupted education and compensation for property lost.

On the basis of these precedents, we also decided that over and above other reparatory measures, it was justified to let victims access financial assistance - a monetary package - subject to two provisions, namely, that the monetary package should enable reasonable access to essential basic services, and that it should generate opportunities to achieve a dignified standard of living within the South African socio-economic context.

We were of the considered view that monetary packages also gave freedom of choice to the recipient. The monetory package recommendaiton also would provide government with a set of predictable, limited expenses that would enable it to make fiscal management more feasible, our view being that an appropriately organised package really requires minimal bureaucratic oversight .[6]

WHERE ARE WE NOW IN SOUTH AFRICA?

I wish I could honestly and accurately tell you an answer to that question. I can tell you where we are NOT at.

We are not on par with our Government as to who should do what. Government blames the TRC for never having implemented the R&R policy. The TRC blames the Government for reneging on what it claims is the Government's responsibility to implement the R & R policy. The TRC claims, in fact, that the Government really did not even consider the TRC recommendations.

There have been mixed messages coming from Government Ministers and spokespersons at various stages since the handing over of the Report in October 1998. In a snap Parliamentary debate in January/February 1999, the dominant theme gleaned from Government rhetoric was that we missed the issue when we proposed monetary reparations because people were not in the struggle for money.

This was very ironic, articulated as it was by people who as Parliamentarians, receive fairly good remuneration for what they do. None of those who were reported articulating this viewpoint had been reported to have led by example by offering a percentage of their salaries for the victims of apartheid brutality and socio-economic deprivations. It was rhetoric that was as cheap as it was insensitive to victims.

At a subsequent stage, talk from Government was that there are not enough resources to meet the demands of our recommendations. On our calculations, the financial package, over 6 years, has been estimated would cost Government about "R3 billion. Government appears to feel that that is too much. I believe their latest position is that they will make available R800m in full and final settlement of all the reparations claims due to a small number of victims identified by the process.

When one considers that our Government concluded an arms deal worth a minimum R50 billion for weapons of war, in relative peace time, and yet quibbles about a reparations package for victims of apartheid era crimes, rights that became constitutionally entrenched in the AZAPO judgment, one becomes extremely concerned as to where our priorities lie.

The latest suggestions from Government seem to suggest that the final reparations programme - and I am not sure whether it will be in terms of our recommendations - will be implemented as soon as the work of the Amnesty Committee has come to an end.

The amnesty committee has completed its work as at the 31st May 2001. In September and October, the TRC will consider the final codicil/s to the Report handed in in 1998, and will present the codicills to President Thabo Mbeki.

I cannot tell you frankly whether by then or from then onwards, there will be an implementation, by our Government, of a reparations programme that will meet the expectations of the victims.

Time only will tell.

As for the rest, our policy remains articulated in and forms part of our Report. Let it never be forgotten that we did not merely recommend a financial package. We were aware that the victims of past violations were not only those who were identified by the process. That is why our recommendations anticipated a broader programme of national development and reconstruction, precicely because we believed that it is only when all of us in South Africa, Black and White, >haves and have nots= are reasonably comfortable socio-economically, that we can talk of a successful TRC legacy in its endeavours to promote national unity and reconciliation. Reparations are a cornerstone of that vision. It cannot be otherwise.

For that reason, we recommended a wide range of things, from demilitarisation, to local treatment centres by the Ministry of health, to skills training centres, to special education support services, to housing provision, to institutional reform, and so on .[7]

CONCLUSION

Has the South African TRC succeeded in promoting reconciliation?

To that question let me first make two disclaimers.

Firstly, it was never the duty of the TRC, contemplated or otherwise, to implement reconciliation. Our duty was to promote reconciliation, as the Act suggests. Secondly, if the view exists that it is still to early to establish whether the French revolution was successful (an assertion of E P Thomsons), then it is far too early to judge the failures and successes of the reconciliation process. Reconciliation is a process that, in my view, will span over many years to come, even generations. It is a process that needs not only the TRC Commissioners, the committee members and the staff to see it through. Each and every member of society in South Africa - be they intellectuals or ordinary people, in organs of civil society or government, in big business or SMMEs, in NGOs or in the various state departments - needs to participate in this process, so that the whole nation can be reconciled.

Finally, there will be no reconciliation for as long as the division between the haves and the have nots exists. As long as the historical imbalance persists between the beneficiaries of South Africa's racial capitalism, who are mainly white, and the victims thereof, the black working class and the rural poor, there will always be a powder keg ready to explode at the tiniest spark.

An ANC member stated at a hearing in Grahamstown that it was all very well for Comrade Nelson Mandela to speak easily of reconciliation, because his circumstances had changed for the better since he was released from prison, whereas the speaker, also a victim of apartheid, and a former political prisoner, was in the same, if not a worse position than when he was released from prison.

This comment is not only fair, it goes to the heart of the matter. It is perhaps in this context that the TRC can arguably be regarded as having failed the victims. The TRC failed to speed up the process of interim reparatory measures to victims, which might have allowed victims to be reconciled with the fact that the offenders were granted amnesty.

The victims of Brian Mitchell's murderous attack at Trust Feed came to the Commission to ask for moderate reparation, but payment was not forthcoming. Quite some time after they had appeared before the TRC, they saw Brian Mitchell being released soon after his application for amnesty had been succesful. It is therefore perfectly understandable that they rejected Mitchell's overtures when the TRC tried to arrange a meeting with them at his request, so that he could apologise and discuss with the community how he could repay his debt to them.

This rejection was a voice of protest against the TRC, which had released the perpetrator, while leaving the victims destitute, despite its earlier promise of reparation. Thus it could be argued that in respect of its reparation and rehabilitation policy, the TRC has failed to promote reconciliation. This is an area in which a lot of work must still be done .[8]

I would hope that from this conference I am able to come away with ideas to take to my country as to how, particularly, we, who were in the TRC process, can contribute to the achievement of reconciliation. Reconciliation is a must, otherwise, as B J Vorster, an apartheid order Prime Minister in the late 60's once said, in a different and reactionary context, 'the alternative [to reconciliation] is too ghastly to contemplate!'

Thanks for listening.

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1. See James, W, et Van de Vijver, L (eds.). After the TRC, s.v Dumisa Ntsebeza : A Lot More to Live For, pp 101-102.

2. Azapo v The President of the Republic of South Africa 1996 (4) SA 671 (CC).

3. See among others, Jeremy Sarkin - The trials and tribulations of South Africa=s Truth and Reconciliation Commission, SAJR, Vol 12, p996 617, Claudia Braude and Derek Spitz, Memory and the Spectre of International Justice, SAJHR Vol 13, 1998 269, Darrel Moellendorf, Amnesty, Truth and Justice : AZAPO, SAJHR Vol 13 1997 283, John Dugard, Is the Truth and Reconciliation process compatible with International Law? An unanswered question, SAJHR Vol 13 1997 258 at 261.

4. See Ntsebeza, DB unpublished paper given at an Institute for Justice & Reconciliation Conference, April 2000, Cape Town - Unfinished Business, p 3.

5. (Ibid).

6. (Ibid).

7. (Ibid).pp 4-6

8. James, W, et Van der Vijver,, L (eds) op cit pp 104-105.