| Truth and Reconciliation Commission | |
|---|---|
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| Established | 1996 |
| Location | Cape Town,South Africa |
| Composition method | Court-likerestorative justice |
| Authorised by | Promotion of National Unity and Reconciliation Act, No. 34 of 1995 |
| Type of tribunal | TRC |
| Website | www |
TheTruth and Reconciliation Commission (TRC) was a court-likerestorative justice[1] body assembled inSouth Africa in 1996 after the end ofapartheid.[a] Authorised byNelson Mandela and chaired byDesmond Tutu, the commission invited witnesses who were identified as victims of gross human rights violations to give statements about their experiences, and selected some for public hearings. Perpetrators of violence could also give testimony and requestamnesty from both civil and criminal prosecution.
TheInstitute for Justice and Reconciliation was established in 2000 as the successor organisation of the TRC.
The TRC was set up in terms of thePromotion of National Unity and Reconciliation Act,[3] No. 34 of 1995, and was based inCape Town. The hearings started in 1996. The mandate of the commission was to bear witness to, record, and in some cases grant amnesty to the perpetrators of crimes relating to human rights violations, as well as offering reparation and rehabilitation to the victims. A register of reconciliation was also established so that ordinary South Africans who wished to express regret for past failures could also express their remorse.[4]: 219
The TRC had a number of high-profile members, including ArchbishopDesmond Tutu (chairman),Alex Boraine (deputy chairman),Sisi Khampepe,Wynand Malan,Klaas de Jonge andEmma Mashinini.
The TRC's mandate was enriched by Tutu with the spirit of the indigenous African conceptUbuntu, which tends to translate across cultures as a spiritual awareness of our interconnectedness as a human family; and more specifically in Xhosa, that together, wemake one another human.[5]
The work of the TRC was accomplished through three committees:[6]
Public hearings of the Human Rights Violations Committee and the Amnesty Committee were held at many venues around South Africa, includingCape Town (at theUniversity of the Western Cape),Johannesburg (at the Central Methodist Mission), andRandburg (at the Rhema Bible Church).
The commission was empowered to grantamnesty to those who committed abuses during the apartheid era, as long as the crimes were politically motivated, proportionate, and there was full disclosure by the person seeking amnesty. To avoidvictor's justice, no side was exempt from appearing before the commission. The commission heard reports of human rights violations and considered amnesty applications from all sides, from the apartheid state to the liberation forces, including theAfrican National Congress.
The Commission found that there were 7,000 political deaths under Apartheid between 1948 and 1989. 73 of these deaths were in detention while in the hands of thesecurity police.[7][8] More than 19,050 people had been victims of gross human rights violations. An additional 2,975 victims were identified through the applications for amnesty. In reporting these numbers, the Commission voiced its regret that there was very little overlap of victims between those seeking restitution and those seeking amnesty.[9]
A total of 5,392 amnesty applications were refused, granting only 849 out of the 7,111 (which includes the number of additional categories, such as "withdrawn").[10]
The TRC's emphasis onreconciliation was in sharp contrast to the approach taken by theNuremberg trials and otherde-Nazification measures. South Africa's first coalition government chose to pursue forgiveness over prosecution, and reparation over retaliation.[11]
Opinions differ about the efficacy of therestorative justice method (as employed by the Truth and Reconciliation Commission) as compared to theretributive justice method, of which the Nuremberg trials are an example. In one survey study,[12] the effectiveness of the TRC was measured on a variety of levels:
In the study by Orlando Lentini, the opinions of three ethnic groups were measured in this study: English-speakingWhite South Africans, theAfrikaners, and theXhosa.[12] According to the researchers, all of the participants perceived the TRC to be effective in bringing out the truth, but to varying degrees, depending on the group in question.
The differences in opinions about the effectiveness can be attributed to how each group viewed the proceedings. Some viewed them as not entirely accurate, as many people would lie in order to keep themselves out of trouble while receiving amnesty for their crimes. (The commission would grant amnesty to some with consideration given to the weight of the crimes committed.) Some said that the proceedings only helped to remind them of the horrors that had taken place in the past when they had been working to forget such things. Thus, the TRC's effectiveness in terms of achieving those very things within its title is still debatable.[12]
Some analyses of the TRC have examined how gender shaped participation in the Commission’s processes. Seven of the seventeen TRC commissioners were women, and the Reparations and Rehabilitation Committee was chaired and co-chaired by Hlengiwe Mkhize and Wendy Orr.[13] As witnesses, many women gave testimony about violations experienced by relatives. Relatives or dependents of those who suffered physical/mental injury and other violations were classified as victims under the TRC mandate.[14] Scholars note that some women were reluctant to speak about abuses they personally experienced, especially sexual violence, due to social stigma.[15]
In 1996, the University of Witwatersrand Center for Applied Legal Studies (CALS) made a submission, co-authored by Beth Goldblatt and Sheila Meintjies, urging the Commission to encourage women to share their own experiences. The TRC subsequently held three special hearings on women in Cape Town, Johannesburg and Durban.[14] In the end, women accounted for more than half of the statements taken throughout the TRC, but less than half of those who reported on their own experience of direct human rights violations. Women were prominent in victim support groups. For example, 70% of the members of the large Khulumani Support Group were women.[13]
The hearings were initially set to be heardin camera, but the intervention of 23 non-governmental organisations eventually succeeded in gaining media access to the hearings. On 15 April 1996, the South African National Broadcaster televised the first two hours of the first human rights violation committee hearing live. With funding from theNorwegian government, radio continued to broadcast live throughout. Additional high-profile hearings, such asWinnie Mandela's testimony, were also televised live.
The rest of the hearings were presented on television each Sunday, from April 1996 to June 1998, in hour-long episodes of theTruth Commission Special Report. The programme was presented by progressive Afrikaner journalistMax du Preez, former editor of theVrye Weekblad.[16] The producers of the programme included Anneliese Burgess,Jann Turner, Benedict Motau, Gael Reagon, Rene Schiebe and Bronwyn Nicholson, a production assistant.[17]
Various films have been made about the commission:
Several plays have been produced about the TRC:
A 1998 study by South Africa's Centre for the Study of Violence and Reconciliation & the Khulumani Support Group,[20][21] which surveyed several hundred victims of human rights abuse during the Apartheid era, found that most felt that the TRC had failed to achieve reconciliation between the black and white communities. Most believed that justice was a prerequisite for reconciliation rather than an alternative to it, and that the TRC had been weighted in favour of the perpetrators of abuse.[22][b] The TRC’s mandate was limited to gross violations of human rights, defined in terms of physical or mental harm to an individual. The likes of Madeleine Fullard, Mamphela Ramphele and Beth Goldblatt have argued that this definition excludes systemic crimes such as forced removals, closing down schools and pass arrests.[13][24] As a result of the TRC's shortcomings and the unaddressed injuries of many victims, victims' groups, together with NGOs and lawyers, took various TRC-related matters to South African and US courts in the early 2000s.[25]
Many black South Africans were angered at amnesty being granted for human rights abuses committed by the apartheid government. The BBC described criticisms of the amnesty system as stemming from a "basic misunderstanding" about the TRC's mandate,[26] which was touncover the truth about past abuse, using amnesty as a mechanism, rather than topunish past crimes. Critics of the TRC dispute this, saying that their position is not a misunderstanding but a rejection of the TRC's mandate.
Among the highest-profile criticisms came from the family of prominent anti-apartheid activistSteve Biko, who was killed by the security police, and whose story was featured in the filmCry Freedom.[27] Biko's family described the TRC as a "vehicle for political expediency", which "robbed" them of their right to justice.[28] The family opposed amnesty for his killers on these grounds and brought a legal action in South Africa's highest court, arguing that the TRC was unconstitutional.
Former apartheidState PresidentP.W. Botha defied a subpoena to appear before the commission, calling it a "circus". His defiance resulted in a fine and suspended sentence, but these were overturned on appeal.[29] While former presidentF. W. de Klerk appeared before the commission and reiterated his apology for the suffering caused by apartheid, local reports at the time noted that he failed to accept that the former NP government's policies had given security forces a "licence to kill", although this was evidenced to him personally in different ways. de Klerk's appearance drove the chairmanArchbishop Desmond Tutu almost to tears.[30]
The Reparations and Rehabilitations Committee recommended policy for how to assist victims (including family members and dependents) based on findings of other two committees. Several forms of reparations were recommended: urgent interim payments, individual reparation grants, symbolic reparation and legal administrative measures, community rehabilitation and institutional reforms.[31] Wendy Orr, a co-chair of the Reparations and Rehabilitations Committee, has stated that delayed payments to victims in the reparations program are the most damaging aspect of the TRC’s work: Urgent Interim Reparations were made available in 2003, five years after the Commission recommended them to the government. Reparation grants were similarly delayed, and below the sum recommended by the TRC.[24]
Playwright Jane Taylor, responsible for the acclaimedUbu and the Truth Commission, found fault with the commission's lopsided influence:
The TRC is unquestionably a monumental process, the consequences of which will take years to unravel. For all its pervasive weight, however, it infiltrates our culture asymmetrically, unevenly across multiple sectors. Its place in small rural communities, for example, when it establishes itself in a local church hall, and absorbs substantial numbers of the population, is very different from its situation in large urban centres, where its presence is marginalised by other social and economic activities.[32]: v
Another dilemma facing the TRC was how to do justice to the testimonials of those witnesses for whom translation was necessary. It was believed that, with the great discrepancy between the emotions of the witnesses and those translating them, much of the impact was lost in interlingual rendition. A briefly tried solution was to have the translators mimic the witnesses' emotions, but this proved disastrous and was quickly scrapped.[23]: xiv [32]
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