The Era of Transitional Justice

The Aftermath of the Truth and Reconciliation Commission in South Africa and Beyond

Paul Gready

• Publisher: Routledge
• Year: 2010
• ISBN:
  9781136902192
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The Era of Transitional Justice explores a broad set of issues raised by political transition and transitional justice through the prism of the South African TRC. South Africa constitutes a powerful case study of the enduring structural legacies of a troubled past, and of both the potential and limitations of transitional justice and human rights as agents of transformation in the contemporary era. South Africa's story has wider relevance because it helped to launch constitutional human rights and transitional justice as global discourses; as such, its own legacy is to some extent writ large in post-authoritarian and post-conflict contexts across the world. Based on a decade of research, and in an analysis that is both comparative and interdisciplinary, Paul Gready maintains that transitional justice needs to do more to address structural violence and in particular poverty, inequality and social and criminal violence as these have emerged as stubborn legacies from an oppressive or war-torn past in many parts of the world. Organised around four central themes new keyword conceptualisation (truth, justice, reconciliation); re-imagining human rights; engaging with the past and present; remaking the public sphere it is an argument that will be of considerable relevance to those interested in the law and politics of transitional societies.

Chapter 1
Truth as genre

Transitional truths

Truth commissions contain various different but interlinking strands of truth inquiry, with similarly configured implications for methods, objectives and prioritised interests. Several of these strands are briefly detailed in the first section of this chapter – truth as acknowledgement, truth as justice, naming names, patterns vs individuals, amnesty for truth. Others are dealt with in later chapters (truth and reconciliation in Chapter 5; apology as truth in Chapter 6). The main subject of this chapter, however, is an attempt to go beyond these insights by mapping a new conceptual understanding of truth – truth as genre. Truth as genre provides a means of acknowledging and interrogating truth commission work across diverse methods, objectives and interests. Many of the strengths and weaknesses of official truth commissions can be traced to the fact that they constitute an imperfectly realised hybrid genre, spanning the state inquiry, human rights report and official history.

One of the most frequently cited conceptualisations of truth is truth as acknowledgement. The important distinction between knowledge (factual truth) and acknowledgement, attributed to Thomas Nagel (Aspen Institute 1989), is based on the premise that although certain truths may already be widely known they have often previously been officially denied or rationalised. There is value, therefore, both in establishing factual knowledge and in having knowledge sanctioned as official truth. Such acknowledgement affirms the reality of painful experience. It also reconfigures unequal and unaccountable relations of power as the state owns responsibility for its actions (albeit often under a different government), thereby healing the rift between private and social memory on the one hand and official denial and lies on the other.

A distinction can usefully be made between official acknowledgement (by the government of the day) and public acknowledgement (the formation of a more shared collective or societal memory of the past). To the extent that the TRC helped forge a greater consensus about certain broad truths – apartheid was a crime against humanity; both the apartheid state and its opponents committed abuses – it can be argued that it also helped to create a stronger collective memory and public acknowledgement of the past (Gibson 2004: 68–116, 156–66). Asking rather more of acknowledgement, Cohen (1995: 39–56) argues that human rights information-work has been more geared to transforming ignorance into knowledge than to thinking about transforming knowledge into acknowledgement. The desired response is surely for knowledge to be publicly acknowledged and acted upon (also see Cohen 2001: 222–77). The TRC was less successful in achieving acknowledgement in this fuller sense.

While truth commissions are often understood to sacrifice justice for truth, there are also a plethora of claims that truth, as acknowledgement or otherwise, constitutes (1) a stepping-stone towards greater justice, and (2) a form of justice (truth as justice).

Truth commissions can facilitate justice and help build the rule of law in various ways. Commissions have forwarded case files to prosecutors or the courts and provided evidence to support court proceedings (notably in the trials of leaders of the former military juntas in Argentina, to establish the identity of perpetrators through investigations in Chile, and at the international level in the charges brought against General Pinochet).¹ In 1998, the TRC handed a list of more than 300 names to the National Prosecuting Authority (NPA), requesting further investigations with a view to prosecution. Commissions have also investigated judicial complicity in abuse, and recommended sanctions against perpetrators (including prosecutions), reparations for victims/survivors and judicial reform (Hayner 2002: 86–106). Public truth-telling in hearings and reports can marshal the naming of perpetrators as a modest form of censure and as the basis of further possible judicial and non-judicial action. Truth in these guises can be construed as countering injustice, if in somewhat hushed tones.

A second argument is that truth intersects with justice most powerfully in transitional contexts by contributing to a public debate about the nature of justice, moving thinking out of the criminal justice/retributive trenches and on to suggestive, new terrain (see Chapters 3 and 4). Phelps writes of the TRC:

the hearings were a public enactment of a radical kind of justice, justice that returns dignity to those who have been victimized; justice that gives back the power to speak in one’s own words and to shape the experience of violence into a coherent story of one’s own, thereby allowing for a renewed (or new) sense of autonomy and sense of control; justice that allows victims, in hearing stories from other victims, to locate their personal stories in a larger cultural story; justice that corrects the erroneous message communicated by the system of apartheid – that these people of color are unworthy – the message corrected not in the official language and setting of the legal system, but in public space that belongs to the people.

(Phelps 2004: 111, see 52–128)

More concretely, consider the following quote about truth and justice from Irene Mxinwa, mother of one of the Guguletu Seven, who were killed in a police ambush in Guguletu, Cape Town, in March 1986. Here she is talking about her experience of testifying at a Human Rights Violations (HRV) hearing:

[The TRC] created a safe environment where we can actually feel that we are human beings and we have dignity, we have a name, we have a face … The kind of questions they put to us were really helpful and helping questions, so that we can be able to remember our story and if we make a mistake they wouldn’t become impatient with you … [T]he way the hearings were conducted and the way that the truth came out, you could actually see and feel justice.

(Interview 30/7/1998)

Justice can be forged in properly constituted processes of change; in this case truth-telling, in and of itself, constituted a form of justice. This lesson needs to be writ large in transitional justice handbooks: how things are done (processes) matters as much as more conventional objectives (outcomes). Further, victim/survivor conceptualisations of keywords can resonate with the holistic definitions outlined in the introduction.

A further window on the truth as justice paradigm is naming names (Hayner 2002: 107–32). Truth commissions have adopted different, and often highly contested, policies on naming perpetrators, with some choosing to name (El Salvador, South Africa, Sierra Leone) but the majority not. The issue raises questions about what kind of procedures and methodologies truth commissions should adopt.

Formal naming, usually in reports, constitutes a finding of moral or political responsibility, not a legal judgment of guilt, and it is generally agreed that the lesser punishment of naming, possibly bringing with it a degree of public shaming and stigma, requires fewer due process protections. Nevertheless, naming pits the due process rights of alleged perpetrators against the right to truth of victims and survivors. How can the correct rights balance be struck? Other factors, of course, influence policies on naming, including mandate specifications; political pressures and possible impacts on a fragile peace; security and witness/perpetrator safety considerations; and the fact that the profile of those named can appear arbitrary. The outcome of naming can be negative, as in El Salvador where a blanket amnesty followed swiftly in the wake of the commission’s report. Naming, in short, entails a balancing of, but not a moral equivalence between, victim/survivor and perpetrator rights, and needs to be a politically informed, strategic decision (is it likely to be effective?) as well as a moral one (is it the right thing to do?).

The South African TRC took the already complex issue of naming into new territory (du Toit 1999; Sarkin 1996, 2004: 92–97; TRC 1998, Vol. 1: 90–92), partly because hearings, crucially its victim hearings, were public and widely covered by the media, but also because it combined hearings with both the making of findings in its report and an amnesty process.² Names were cited in all these settings. Several court cases clarified the due process or procedural rules of the TRC (and specifically the meaning of Section 30 of the Promotion of National Unity and Reconciliation Act [No. 34 of 1995]), ultimately ensuring that the hearings and the final report became bogged down in a hugely time-and resource-intensive exercise of providing those to be named with reasonable prior notice and sufficient information to enable them to make representations and respond. In both arenas naming was curtailed as a result. Caught between competing demands – victim/survivor versus perpetrator rights; due process requirements, a mandate to make findings, reporting functions and therapeutic goals – the TRC struggled to find a coherent policy response to this issue that adequately respected the centrality of victims/survivors in its work.

Before leaving the issue of naming, one final, often overlooked point needs to be made. That is the importance of naming both victims/survivors and perpetrators in human rights documentation, where information and security concerns allow. While neither form of naming is done widely or consistently, as Bronkhorst (1998) notes, the potential implications of rectifying this situation are significant:

If human rights organisations produce extensive or exhaustive lists of victims for each situation, they stress the principle that each individual victim is a life as valuable as that of any other person. In naming the names of perpetrators, they render individuals accountable for crimes committed, instead of sketching only the more elusive patterns of violations.

(Bronkhorst 1998: 472)

The TRC report’s incomplete list of victim names (TRC 1998, Vol. 5: 26–107) and scattered, disconnected references to victims in its various volumes were later complemented by a special volume dedicated to victims (TRC 2002, Vol. 7). This volume names and features short summary findings for the 22,025 people classified as victims by the TRC. Despite multiple challenges (omissions, truncation, formalisation) the naming of victims and the reclamation of a space for their stories can be seen as a form of acknowledgement – even if its impact was diminished by the fact that plans to send each named victim a copy of this report have not been realised. Victim recognition and self-recognition, facilitated by naming, direct quotations and life summaries, holds out the powerful promise that some at least will be ‘mended by the mention’ (Weschler 1990: 74).

The privileging of individual names and stories can clash with an emphasis on investigating patterns of abuse (patterns vs individuals). It is the highlighting of patterns, providing an authoritative account of the abuses of a particular era or regime (also called the ‘global’ truth), that is widely seen as a key role of truth commissions, and one that sets commissions apart from trials.

An article by Chapman and Ball (2001) takes a strong position on where truth commission priorities should lie (also see Chapman and Ball 2008). They state:

it is our view that truth commissions are far better suited to pursue what we have termed ‘macro-truth’, the assessment of contexts, causes, and patterns of human rights violations, than ‘micro-truth’ dealing with the specifics of particular events, cases, and people.

(Chapman and Ball 2001: 41)

The authors are critical of the TRC for focusing too much on the latter and too little on the former. They, and others, applaud the Guatemalan Commission for Historical Clarification (CEH) for its greater success at establishing macro-truths, even arguing that a mandate prohibiting it from naming perpetrators, although widely criticised, became a strength because it encouraged the CEH to examine broader issues such as the institutions and social structures that fostered violence (13). A number of claims are made by Chapman and Ball to support their argument: it is the big picture that is often most incomplete and victims also want systemic truths; commissions are not particularly good at investigating individual cases; micro-truths should mainly be left to the courts; commissions should prioritise the objective over the subjective dimensions of truth, outcomes (reports) over process (hearings); and responsibility should be attributed at the macro level too, focusing on institutions, parties, structures, policies, ideologies and patterns of abuse (41–43).

It is the case, as the TRC illustrated, that truth commissions are ill equipped to investigate potentially thousands of individual victim/survivor or perpetrator cases. The TRC’s investigation unit, for example, predominantly provided corroboration rather than new information for victims/survivors. Pigou (2002: 37) states that probably over 90 per cent of people who appeared before the TRC did not receive meaningful new information about their cases. This was not simply a resource question: greater priority was given to making perpetrator findings and to the amnesty process. If investigations and reports may well in the main have to resort to illustrative or representative examples – ‘window cases’ in the TRC’s jargon – to highlight patterns or important events, ways can also be found to name names, and summarise and acknowledge each and every individual victim/survivor story (see TRC 2002, Vol. 7).

The focus on patterns of abuse clearly matters, but it is also important to be honest about what a privileging of patterns means. To leave individual cases to the courts means that for the overwhelming majority nothing further will happen. To conclude, after outlining the argument detailed above, that findings should be ‘victim-centered, telling the story from their point of view and validating their experiences’ (Chapman and Ball 2001: 43) is somewhat disingenuous. Many victims/survivors want information about or acknowledgement of their particular experiences; their truths are particular truths. Others yearn to get beyond ‘bad apple’ exculpations to situate their experiences within broader policies of abuse. Both levels of analysis, in short, are necessary. The methodological challenge of synthesis spans the genres that are the subject of analysis in this chapter – state inquiry, human rights report, official history – and indeed the social sciences as a whole: how to integrate, while giving appropriate attention to, individual experiences and broader patterns alongside structural concern?

One of the unique features of the TRC was that it placed an amnesty process within the remit of a truth commission, and sought to link amnesty to the wider project of truth-telling and truth-gathering by making full disclosure one of the conditions for amnesty (amnesty for truth). Truth commissions, and other mechanisms, set up after the TRC have also experimented with amnesty for truth provisions. In Timor Leste, the CAVR (Commission for Reception, Truth and Reconciliation), through its Community Reconciliation Process, included a procedure enabling immunity from criminal and civil liability for less serious crimes, contingent upon factors such as full disclosure, a public apology, and fulfilling the terms of a Community Reconciliation Agreement (Burgess 2006). The Liberian TRC could recommend amnesty for perpetrators of, and accomplices in, less serious crimes if certain conditions were met, including full disclosure and remorse, while in Colombia under the Justice and Peace Law members of illegal armed groups who agree to demobilise are offered reduced sentences in exchange for confessions about human rights violations and reparations for their victims (Colombia’s law is not linked to a truth commission). The Kenyan Truth Justice and Reconciliation Commission can also recommend amnesty for those who make a full disclosure about less serious and economic crimes.

A common problem for truth commissions, and truth generation, is the lack of cooperation from perpetrators (Hayner 2002: 39, 113–14). The participation of perpetrators in the South African TRC’s truth-gathering was encouraged by a twin strategy, the carrot of amnesty for truth and the stick of potential prosecutions and civil claims (Sarkin 2004).³ Given the impossibility of comprehensive prosecutions, such an amnesty provision may well have been the only available route to truth for many. Amnesty applications provided insights into particular events, and the roles, structures, modes of operation and links between key perpetrator groups and institutions, as well as perpetrator perspectives and motives, thereby helping to frame preventive recommendations. They...

Table of contents

• Transitional Justice
• Contents
• Acknowledgements
• Introduction
• Chapter 1 Truth as genre
• Chapter 2 From social truth to rights-based participation
• Chapter 3 Justice past
• Chapter 4 Justice present
• Chapter 5 Speaking truth to reconciliation
• Chapter 6 Reconciliation, relationships and the everyday
• Conclusion
• Interviewees
• Bibliography
• Index