Editorial

Security

Politics

World

Letters

Sports

Obituaries

Archives

The long road to freedom

"If justice alone is allowed to take its course, the country would be reduced to ashes."

Archbishop Tutu This was the reality for South Africa at the time of negotiations, and they chose the road less travelled but also less destructive. For most South Africans the Truth and Reconciliation Commission was the start of a long road to freedom.

When negotiations to end apartheid started in 1985 between the Nationalist Party Government of South Africa (NP) and the African National Congress (ANC), a fundamental question facing them was how to recognize, accept and deal with the gross violations of human rights of the past. South Africa's quest for a democratic, non-racial, non-sexist country, involving a non-violent transition from oppression to democracy meant that the question of justice had to be addressed without jeopardizing a future where all its communities could live together in peace.

The option of a judicial process similar to the Nuremberg trials was discussed and rejected. There was also the need to avoid a system of blanket amnesties. The third way that was agreed upon is now well known as the truth and reconciliation process which aimed for a model of restorative justice as opposed to a retributive/punitive model of justice.

The Truth and Reconciliation Commission was legally established in 1995. It was quasi judicial body and the composition of the Commission reflected the diversity of the country across racial lines, religious systems, and political affiliations ranging from the left to the conservative right. The TRC law had its principle objectives:

* The establishment of as complete a picture as possible of the causes, nature and extent of gross violation of human rights committed during 1960-1993. This task of investigating and documenting human rights violations by the TRC was premised on a dual responsibility i.e. to victims, who were given the opportunity to share their stories with the nation, and the perpetrators, who were guaranteed due legal process to protect their rights.

* The making of recommendations in respect of reparations. The commission had the power to grant individual reparation in the form of monetary payment; symbolic reparation (e.g. memorials, proper burials); community rehabilitation programs (e.g. counselling services, housing); institutional reform (proposals on measures to prevent the recurrence of human rights abuses). The focus of the above measures is aimed restoring the dignity of victims and survivors.

* The granting of conditional amnesty. The pursuit of national unity, the well-being of all citizens, peace, reconciliation between people and the personal and political reconstruction of society all required "that amnesty would be granted to perpetrators in respect of acts, omissions and offences associated with political objectives committed in the course of the conflicts of the past". The amnesty clause provided indemnity from both civil and criminal prosecution, in exchange for full disclosure of unlawful acts committed in the pursuit of a political objective within the stipulated time frame, and subject to a proportionality test.

In addition the commission was mandated to recommend measures aimed at preventing future violations of human rights and the promoting of reconciliation.

The Commission functioned for a period of 4 years. Official hearings were held for 2 years. Due to the limitations within which the TRC process was undertaken, not all people who had suffered under the apartheid regime could come before it.

Therefore local communities (NGOs and CBOs etc.) mobilized and assisted in making decisions as to who would come before the commission.

The commission held public hearings, unless such a hearing was likely to lead to a miscarriage of justice, and ten percent of the 22,000 victims' testimonies were aired publicly while the rest were gathered in written statements'.

In addition to individual testimonies, special investigations and hearings on sectors of society complicit in maintaining apartheid also occurred.

The sectors included business, legal, health, faith, prisons, women, trade unions, media etc.

These special hearings sought to explore the broader institutional and social environment and provide the opportunity for self-examination by the various sectors, as well as discussion of their possible role in the future".

Women,the truth and the TRC

The TRC Act is gender-neutral, with no specific reference to women, gender or to gender based violence crimes. In March 1996 when the Commission began its work, gender activists were both critical and also concerned over potential gender bias in the TRC process.

The Commission subsequently organised two workshops with representatives of women's organizations and the media to address the issue. This resulted in awareness that statistically, although half of the testifiers were women, the majority of the women testifying spoke of violence pertaining to relatives and dependants (primarily males) who had suffered human rights violations i.e. women spoke as secondary victims. Men, on the other hand, spoke of their experiences as direct victims.

A large number of women also spoke of severe ill treatment, but not of torture, and hence minimised their experiences. Although in reality, there was widespread practice of rape by the security forces and by opposition political groups, yet this did not emerge during the TRC hearings.

In response to this situation, the Commission agreed to hold special women's hearings, and three hearings were held in three major cities. These hearings excluded men (including male Commissioners) from attending or participating. The issues of confidentiality and protective measures such as in-camera hearings were also factored in.

The Commission also made some procedural changes to encourage women to come forward and speak of their experiences as victims of gross human rights abuse, as opposed to only testifying about acts relating to family members or friends.

The hearings revealed women's experiences, both direct and indirect, of political violence during the struggle against apartheid. These experiences (sexual, physical and psychological) occurred both in detention and outside, but also in the camps of the opposition forces (i.e. the liberation movement camps). The perpetrators of violence against women included both state and non-state actors and included liberation fighters.

The aftermath of a negotiated settlement

In evaluating the TRC, its creation and functioning has to be viewed as a process and not an event. The TRC was just one component of a transformation strategy in the reconciliation, reconstruction and development of South African society.

The TRC attempted to promote trust, tolerance and unity as opposed to distrust, revenge and demonizing of the other. The focus on non-violence was accompanied by the push for reconciliation and dialogue as part of the healing process for the greater good of all South Africans and the avoidance of the us/then syndrome.

The commission was not a sort of law. It did not set out to judge. Nor was the intention to feel sorry for the victim i.e. victims were not considered SAD and perpetrators were not considered BAD.

There was recognition of the dehumanizing effect of apartheid on both the creators and implementers of the apartheid system and also on the victims. It proceeded on the principle that both the victims and the perpetrators who came before the commission were victims.

The most important principle of the TRC was recognition of the humanity of the other without racial, religious or economic distinctions. It reiterated the African concept of Ubuntu (recognition of the intertwined humanity of all people and the co-existence of people as a community) which loosely can be verbalized as 'That you are because I am and I am because you are.'

Some people may feel that in the quest for freedom and democracy and an end to large scale political violence in South Africa, justice was traded for truth and peace. For many South Africans, this was the price that we had to willingly pay for freedom.

The leadership of democratic South Africa has continued to foster and nurture the concept of UBUNTU, of negotiation, of reconciliation and of compromise.

The attempts at reconciliation and compromise include the negotiation of a national anthem which has portions of the apartheid anthem, the designing of a new flag with components of the previous flag, the recognition of eleven official languages, the amalgamation of the apartheid army and the military wing of the ANC, negotiations with the Inkatha Freedom Party which was pushing for federalism and which raised the possibility of more ethnic violence, the acceptance of whites as citizens of South Africa, and the acknowledgement of the role of some whites in the struggle who had made a moral choice not to reap the benefits of silence and compromise.

The white minority was not to be considered the 'other' or 'the enemy'. They would enjoy equal rights of citizenship under black majority rule. In fact one of the conditions that were negotiated was a clause which guaranteed public sector jobs for the existing white civil service sector for a period of five years.

Nelson Mandela has exemplified these principles in his own life despite 27 years of imprisonment under the apartheid regime. In 1994 when Mandela was elected as the first President of a democratic South Africa he took the leadership in building bridges between the communities. One of the first acts of Mandela as President was to have tea with the widow of the architect of apartheid, Betsy Verwoerd. He also met with Percy Yutar, the prosecutor in his treason trial who had asked for the death penalty.

Archbishop Tutu in his capacity as chairperson summed up the TRC as representing "a compromise between those who wanted amnestia and those who wanted retribution. If justice alone is allowed to take its course, the country would be reduced to ashes". This was the reality for South Africa at the time of negotiations and hence we chose the road less travelled but also less destructive. For most South Africans, the TRC was the start of a process of a long road to freedom

The parallels between the Sri Lankan and the South African experiences are uncannily similar in terms of liberation politics, peace negotiations, language and ethnicity issues, coexistence issues, land redistribution issues etc.

Sri Lankans need to find their own unique way of dealing with the past and moving to a future where all communities can live together in peace and harmony, to create a country where diversity is celebrated and not feared. This is a long and difficult process, but I do believe that you can achieve it.

Based on a presentation made by Rashida Manjoo, Member of the Commission on Gender Equality in South Africa at the SLFI on August 28, organised by the Muslim women's research and action forum.

www.crescat.com

News | Business | Features | Editorial | Security
Politics | World | Letters | Sports | Obituaries

Produced by Lake House
Copyright 2001 The Associated Newspapers of Ceylon Ltd.
Comments and suggestions to :Web Manager