Table Of ContentTitle: The Aftermath of the Truth and Reconciliation Commission
(TRC): A diagnostic approach to the TRC operations, gaps and the
need for social justice.
Research Question: In what way did the TRC address or fail to address social justice
imperatives and what are potential implications for victims, and social cohesion?
By Vusumuzi Wiseman Kweyama
Tilburg University 2013-07-11
Table of contents
TABLE
OF
CONTENTS
.....................................................................................................................
1
ACKNOWLEDGMENTS
....................................................................................................................
2
ABSTRACT
.........................................................................................................................................
3
METHODOLOGY: EXISTING ACADEMIC LITERATURE, NGOS REPORTS AND TRC REPORT
REVIEWS.
...........................................................................................................................................................
4
CHAPTER
I:
HISTORICAL
BACKGROUND
.................................................................................
4
OPERATIONAL
TERMINOLOGIES
...............................................................................................
6
RECONCILIATION
..........................................................................................................................................
6
TRANSITIONAL JUSTICE (TJ)
...................................................................................................................
6
TRUTH COMMISSION
...................................................................................................................................
7
AMNESTY
..........................................................................................................................................................
7
JUSTICE
.............................................................................................................................................................
8
SOCIAL JUSTICE
............................................................................................................................................
8
CHAPTER
II:
INTRODUCTION
......................................................................................................
8
APARTHEID POLICIES AND IMPACT
.....................................................................................................
10
CHAPTER
III:
THE
TRUTH
AND
RECONCILIATION
COMMISSION
(TRC)
.....................
15
3.2.
TYPES
OF
TRUTH
..................................................................................................................
17
FACTUAL/ FORENSIC TRUTH
...................................................................................................................
17
HEALING AND RESTORATIVE TRUTH
....................................................................................................
18
3.3.
THE
TRC
COMMITTEES
...................................................................................................
19
HUMAN RIGHTS VIOLATIONS COMMITTEE (HRVC)
.......................................................................
19
AMNESTY COMMITTEE (AC)
....................................................................................................................
19
REHABILITATION AND REPARATION COMMITTEE (R&R COMMITTEE)
...................................
22
3.4.
DISCUSSION:
OVERALL
ANALYSIS
OF
THE
TRC
DIFFERENT
JUSTICE
OPTIONS
23
CHAPTER IV: THEORIES OF JUSTICE AND AMNESTY
...................................................................
25
4.1.
DISTRIBUTIVE JUSTICE
...............................................................................................................
25
4.2.
RESTORATIVE JUSTICE
...............................................................................................................
27
4.3.
PROCEDURAL JUSTICE
................................................................................................................
30
CHAPTER
V:
WHAT
WAS
JUSTICE
SUPPOSED
TO
DO?
......................................................
33
5.1.
BACKGROUND AND SOCIAL JUSTICE GAPS
.........................................................................
33
CHAPTER
VI.
:
CONCLUSION
.......................................................................................................
38
REFERENCES
...................................................................................................................................
41
ACKNOWLEDGMENTS
Once again, my pool of words runs short of the required descriptive power to give expression
to my gratitude, and an attempt to write something runs the risk of betraying the sincerity of
my heart. Nevertheless, it is a risk worth taking.
Though only my name appears on the cover of this master thesis, many people have
contributed to its production, both directly and indirectly. I owe my gratitude to Tilburg Law
School, INTERVICT lecturers, and the Master Victimology and Criminal Justice class of
2012-2013 for creating a magnificent intellectually stimulating environment that enabled me
to grow my victimological and justice thinking. Thank you very much for stretching my
acumen and accommodating my limited views.
My deepest gratitude is to my supervisor, Prof. Dr. R. M. Letschert. I was amazingly
fortunate to have a supervisor who gave me the freedom to explore my academic interests on
my own while at the same time providing the most needed guidance to recover when my steps
faltered.
I am forever indebted to Alumni Tilburg Law School, especially Frederique Knoet, the
Alumni Officer for the scholarship and support, which made it possible for me to study so far
away from home at such a prestigious Tilburg University. Many thanks again for believing in
me, and I promise to believe in others who need it the most.
2
Abstract
Since the advent of truth commissions as alternative to trials for dealing with gross
human rights violations, the South African Truth and Reconciliation Commission
(TRC) is one of the widely publicised and researched post-conflict mechanisms.
Arguably, this is partly the function of its real or perceived success when measured
against its well-stated ambitious mission. However, it seems that little has been done
to assess the TRC against its claim to transform the entire society and set into motion
the process toward reconciliation. The overall aim of this thesis is not to discredit the
work of the TRC, but to strengthen it through identifying the justice gaps that might
stifle reconciliatory efforts. The thesis assesses the TRC final report, relevant justice
theories and other post-conflict justice literature. Moreover, the aim of the thesis is to
explore the question of how the TRC addressed or failed to address social justice
imperatives, what the potential implications for victims are, and the effects on thereof
on social cohesion.
3
Methodology: Existing academic literature, NGOs reports and TRC report reviews.
Chapter I: Historical Background
Historically we see that conflicts around the world have given governments, scholars, and
human rights advocates no choice but to come up with appropriate transitional justice
mechanisms to deal with aftermaths of gross human rights violations. One of the challenges
for these justice instruments resides in the fact that gross human rights violations cause severe
social implications for the aggrieved. These social implications include displacements of
various groups of people, such as, widows and widowers, and poverty stricken communities.
What might be mere subjects of study and political career advancement for some is the reality
of struggle to make ends meet for others, and attempts to make sense of the brutality of the
most-recent past.1
It was the aftermath of the Second World War that exposed the devastating effects of
conflicts and repressive regimes. This realisation called for the advent of international and
military tribunals as well as truth commissions later on, as instruments designed to address
justice demanded by the situation. The attempt in these situations is to mend relationships
broken by conflict or repressive regimes, in a way that prevents the recurrence of conflict and
uphold justice principles.2
Recent years have witnessed the upsurge of transitional justice scholarship and policy
making with the overwhelming backing of the international community. Consequently, over
twenty truth commissions have been created globally to mitigate the impact of conflicts, and
help the victims to deal with the aftermath of conflicts. These bodies have powers, and
responsibility to unravel truth, establish peace and stability, some of which have powers to
grant amnesty and achieve the overall desired end of justice.3
Though international responses to post-conflict situations are not the advent of the 21st
century, but dated back even before the 1918 Treaty of Versailles which already provided for
individual reparation, and the consensus around the Rome Statute which provides for the
establishment of the International Criminal Court marks a significant achievement in the
history of post-conflict discourse and international criminal justice in general.4
1 Jaspers K, The Question of German Guilt, 1947, in Laurel E. Fletch, Harvey M. Weinstein,
Human Rights Quarterly, p. 20-21
2 Ibid p.578
3 Hayner P.B. 2001, More than just truth: Truth commissions can set in motion a process of
grieving and recovery, but they are not the only answer to confronting crime of the past.
Trials are critical, while traditional healing practices can also assuage wounds, p. 38.
4 Ibid, p.130.
4
Truth commission creation, and achievements at national levels offers the most needed
hope for the aggrieved, and the case in point is the example of Commissions in South Africa,
Argentina and Chile. Even though a lot remains to be desired, reparatory efforts and the
embrace of victimological approaches offers the most needed encouragement.5
The advent of the Basic Principles and Guidelines on the Right to Remedy and
Reparation for Victims of Gross Violations of International Human Rights Law and Serious
Violations of International Humanitarian Law (hereafter Reparation Principles), which the
United Nations General Assembly adopted in 2005, aims to promote victim friendliness. The
Human Rights’ Impunity Principles of 2005, also aim to enhance the position of victims at the
international and national stage.6
Impunity Principles promote the Right to Know which attempt to give victims access to
the past hidden truth about what happened during conflict to their loved ones. This victim-
caring quasi-legal instrument is influenced by Article 24 of the Reparation Principles, which
speaks into the victims’ entitlement to information demanded by both the victimisation
experience and basic human rights. Moreover, the right to access information finds resonance
with multiple international instruments interested in the well being of the victims.7
Secondly, the Right to Justice is the imperative, which places the duty on a State, and
other justice concerned agencies to facilitate justice, redress and healing for victims. This
right to justice imperative empowers not only nation States to conduct investigations into
human rights violations, but also international law regimes to render justice to victims
accordingly. Further, research suggests that this right to justice is instrumental for healing and
recovery of the aggrieved in a given situation. 8
Lastly, the Right to Reparation is the principal thrust for Reparation Principles, and
attempts to address victims’ rights, and needs.9 Part IX of the Reparation Principles seeks to
align both domestic and international law in order to address individual victims’ needs, reveal
the extent of human rights and international law violation, the overall impact of victimisation,
and offer appropriate remedies demanded by the situation.10
The remedy package is designed to meet both the procedural right to access justice as
well as the substantive right to redress for the injury suffered. The procedural right places the
onus on the State at the local level to account for or offer access to fundamental human rights
5 Sarkin, 2009. Colonial Genocide and Reparations Claims in the 21st Century: The Socio-
Legal Context of Claims Under International Law by the Herero Against Germany for
Genocide in Namibia, 1904-1908, p. 131.
6 Letschert and van Boven (n.d.). VII. Providing Reparation in Situations of Mass
Victimization Key Challenges Involved., p.155.
7 Ibid, p.157.
8 Ibid, p.158.
9 Ibid.
10 Ibid.
5
as per provision of human rights instruments. On the other hand, the substantive dimension
attends to issues of restitution, compensation, rehabilitation, and satisfaction to remedy the
harm suffered. 11
The thesis explores how the TRC project addressed these fundamental human rights in effort
to set into motion the process of reconciliation, and also highlight justice gaps if any exist.
The following section offers brief definitions of the main themes and concepts discussed by
the thesis.
Operational terminologies
Reconciliation
Professor Villa-Vicencio, the founding director of the Institute for Justice and Reconciliation
(IJR) defines reconciliation as a multiplicity of processes and parameters that disrupt the
sequence of events. It involves “understanding, social dialogue, grieving and healing,
acknowledgement of the truth, the pursuit of justice, reparations, and sometimes
forgiveness.”12 On the other hand, Philpott (2009) emphasizes the importance of making right
the inter-community relationships and setting into motions processes that deal with aftermaths
of crime victimisation.13
Transitional Justice (TJ)
“Transitional justice refers to the set of judicial and non-judicial measures that have been
implemented by different countries in order to redress the legacies of massive human rights
abuses. These measures include criminal prosecutions, truth commissions, reparations
programs, and various kinds of institutional reforms.”14 It is not a special package justice,
rather, it is an alternative pathway to justice in the context of national transitions from a
repressive regime or conflict situations. During this transitional period, the attempt is to
11 Ibid.
12 Institute for Justice and Reconciliation: SA Reconciliation Barometer Survey: 2012 Report,
p.11.
13 Ibid.
14
The International Center for Transitional Justice: What is Transitional Justice?
6
facilitate redress for victims, appreciate the rights of the aggrieved, hold accountable
perpetrators, and cultivate civic trust and improve democratic rule of law.15
It is also argued that transitional justice discourses has evolved over time from the
retributive-centred approach to the restorative approach with more focus on building
relationships within a community, “with the explicit goal of healing the victims.” However,
recently scholars argue that the need exists for widening the TJ framework to accommodate
social justice, development and economic distribution needs.16
Truth Commission
Hayner (1994), defines truth commissions as entities of inquiry that function outside formal
judicial processes, for the purpose of establishing the history of the past human rights
violations, in given situations. Although truth commissions operate outside of formal judicial
processes, the national governments within the jurisdiction of the case give them executive
powers. 17
Definitive character traits of a truth commission include backward-looking into the
past, an attempt to reveal the full picture of what transpired with regard to past human rights
violations, and they function within a specific and limited time frame. To this end, respective
governments empower truth commissions with the ability to access sensitive information
across the board. 18
Amnesty
Bennett argues that, “Amnesty in the context of national reconciliation involves waiving or
cancelling the punishment of convicted or suspected criminals in the name of peace.” 19 The
word amnesty comes from the Greek word amnesia, which is essentially about forgetting or
ignoring the past. In South Africa, the principal task of the notion of immunity was to help
15 Ibid
16 Van der Merwe et al., 2009 in Andrieu K. 2010, Transitional Justice: A New Discipline in
Human Rights, p. 3-4.
17 Hayner, P. B. (1994). Fifteen-truth commissions-1974 to 1994: A comparative study, p.600.
18 Ibid p.604
19
Slye, R. C. (2002). Legitimacy of Amnesties under International Law and General
Principles of Anglo-American Law: Is a Legitimate Amnesty Possible, p. 194.
7
unearth hidden truth, and this was evident in how truth telling, or lack thereof, determined
whether amnesty applicants received amnesty or not. 20
Justice
“The concept of justice can be used to evaluate many different things, from criminal law to a
market economy. In a broad sense of the term, the global requirement of justice includes
standards of governing, the justification and conduct of war and standards that define the
most fundamental human rights.” Justice attempts to settle disagreements between people that
arise within contexts of social interactions, and as in other scientific discourses, theories of
justice vary greatly.21
Social Justice
Andrieu (2010) defines social justice as the basis upon which just and stable societies find
their establishment, so that these societies can work to settle economic, political and social
injustices created by conflict.22
Chapter II: Introduction
Post-conflict State and repressive rule in any given situation demand a moral response, and it
is the very nature and character of conflict that make justice a necessary practice. Justice, in
such situations, is imperative as it promises to function as a preventative measure for future
conflict.
Years of grappling with questions of what is an appropriate post-conflict justice
mechanism have produced some of the considered best truth commissions in the world. One
of which is the subject of investigation for this master thesis, the South Africa Truth and
Reconciliation Commission (TRC). This thesis attempts to situate the legitimacy of it praise
within the ambit of social justice imperatives.
The TRC claims to be a restorative justice instrument, with interest in the issues of
truth telling, reconciliation and other reparatory efforts. The National Unity and
Reconciliation Act, section (3) makes provision for its establishment and its mission is
20 Ibid
21 Nagel in Brooks, T. (2008). The global justice reader, p.416
22 Andrieu K. 2010, Transitional Justice: A New Discipline in Human Rights, pp. 3-4
8
synonymous with its founding act. Its’ overarching and overly ambitious mission is to
transform and reconcile South Africans in the spirit of tolerance that transcends conflicts and
segregation. Arguably, this ambitious mission is an accurate portrayal of the gravity of the
South African issues and justice required by the nature and magnitude of victimisation.23
Though truth commissions have grabbed the attention of transitional justice discourse
in recent years, it is noteworthy to point out that there is no one size fits all approach to post-
conflict justice. There is no one truth commission that could be exported to fit into different
contexts, and yield the same results, and South Africa’s TRC is no exception. It sprang to life
from a unique context, characterised by a unique history and challenges. Therefore, it
demanded a peculiar remedy, which appreciates the need for justice demanded by the
situation.
The history of South Africa or rather the history of human rights violations in South
Africa, provides a good framework for the assessment of the TRC’s work and helps to foster
the background understanding of its establishment. What marked the inception of what was to
be over 300 years of historical marginalisation of the natives is the arrival of Jan van
Riebeeck in the Cape with his Dutch East India Company. The company served as the Dutch
forerunner for the country’s colonial projects.24
The apartheid rule in South Africa from 1948 until its official political demise in 1994
only marks the official institutionalisation and implementation of apartheid policies. The
human rights violations and discriminatory functions of the government are dated way before
1948. In other words, violation of human rights in South Africa was not the advent of the
apartheid regime, but the historical order of society. The word apartheid is an Afrikaans word,
which means apartness and speaks directly into its separationist policies. Apartheid policies
provided for racial divisions and racialisation of privileges across spectrum. What this means
is that the enjoyment of human rights was the luxury afforded by the colour of the skin, not
by virtue of being human. These socio-political and separate development policy positions
dominated all South African social sectors, from geographical residence of different racial
groups to the educational institutions, workplaces, racially skewed socialisation spaces, and
informed the overall function of the apartheid brutal and unjust system. The apartheid regime
policies created unprecedented social inequalities that continue to impact post-apartheid
South Africa, twenty years later.25
23 James Gibson, 2005, ‘The Truth about Truth and Reconciliation in South Africa’, p. 344.
24 Witz L., 2003, Apartheid’s Festival: Contesting South Africa’s National Pasts, p.31.
25 Johnston, 1984 in Christopher A.J., 1988 Apartheid and Urban Segregation Levels in South
Africa, p.421.
9
Description:FACTUAL/ FORENSIC TRUTH human rights violations, the South African Truth and Reconciliation Commission. (TRC) is one of the widely
