Truth or dare? Truth commissions between old and new nations

Should I testify? (2000)
Oil on canvas by Madelaine Georgette. Images reproduced by kind permission of the artist

The symbolic architecture of transition

I have looked closely at the three commissions that were established in South Africa, Chile and the Czech Republic. Each tell their own distinct tale: secretive and repressed in Chile, kept firmly behind closed doors by an old guard determined to cling on to power; messy and violent in South Africa, a perambulating Pandora’s box held in full gaze of a disorientated public; uncertain and limited in the Czech Republic, where the main body of evidence was police files held over from the communist era, a most uncertain source of truth-telling.

Each commission has both generic and specific characteristics born out of the time and place in which they emerge. By comparing them, we can begin to differentiate, as Marina Warner does, between the different types of justice and truth peculiar to each.

Their search for persuasive certainty, as social and socially-held truths, can take many forms, from the forensic to the narrative. What they have in common is that they are, as yet, the best means by which we can begin to bridge the chasms separating deeply divided societies. On their own, their value is more symbolic than structural. But taken with other elements of the transition process, they can be seen as key ingredients in the rapid and often disconcerting changes that take place in people’s everyday lives in transitional societies.

At their best, as in South Africa, a truth commission can become a contemporary epic which tells a story, made up of many, often very personal, stories, about a troubled past, forming an indispensable backdrop to the difficult processes associated with conflict resolution, transitions to democracy and nation-building. The TRC was brought about by a combination of international pressure, the will of exceptional personalities such as Archbishop Desmond Tutu and, most importantly, by the demand of victims themselves to have their story heard. Truth commissions gain legitimacy from the fact that conflict victims want them. But, in South Africa, the task of the TRC was also to generate a foundational narrative for a new nation, one that for all its ambiguities points to a more inclusive, shared future.

Truth commissions originated in Latin America as a means of hearing from, and compensating, families of those who had ‘disappeared’ under military dictatorships. But as a process they have come to pose much larger questions. Should they have the capacity to offer amnesty? Should there be reparation for victims’ families? What, if any, is the relationship of the truth they uncover to justice? To what extent can commissions foster reconciliation? Do they unite or may they in fact further divide conflict-ridden societies?

Are they adequate? No. Are they necessary? Yes.

To paraphrase Winston Churchill, truth commissions are the worst means of reconciling historically-divided societies…except for all of those other ways that have been tried so far.

Going to Vote (1995)
Oil on canvas by Madelaine Georgette

South Africa: facing the monster

For much of the latter half of the 20th century, few conflicts in the world appeared more intractable than that between the apartheid state and the liberation movement in South Africa. It is therefore no surprise that the agreement delivered in 1994 by state and opposition negotiators is often described as a ‘miracle’. Indeed, the relatively peaceful handover of power and the aversion of bloody civil war in South Africa is a remarkable testament to the politics of the possible. But after the first free elections in April 1994, when the cameras and news crews had left, South Africans got down to the business of nation-building amid a society massively segregated and scarred by decades of conflict.

The TRC was central to this process. Its daily hearings, heard all around a vast country, became the lifeblood of the transition, dominating newspaper headlines and becoming the talk of the airwaves. Those who watched and listened heard tales of extreme brutality: the routine murders carried out by agents of the state against their opponents and ordinary members of the public alike; the widespread use of necklacings in the townships in which a tyre filled with petrol was put round the head of supposed informers and set alight; stories of doctors, lawyers and other professionals turning a collective blind eye to the rape, torture and murder of their fellow citizens.

These hugely symbolic moments stand alongside other potent symbols in the painful birth of the new South Africa: Nelson Mandela in a Springbok shirt celebrating victory in the Rugby World Cup; the new anthem and flag incorporating the colours of the eleven ‘nations’ which make up the new country; and Chief Mangosuthu Buthelezi, whose political manoeuvring had prompted two decades of horrifying bloodshed in Natal and the derailment of negotiations on countless occasions, serving as acting president in an ANC government and sending in South African National Defence Force (SANDF) troops to quell a coup in Lesotho in 1995.

But, of course, there was another side to the TRC. Many people were less willing to see perpetrators of grave and heinous crimes get their day in the stand. Steve Biko was brutally murdered by the South African state. His family went to court in order to stop TRC proceedings, arguing that the amnesty clause gave the commission a quasi-judicial status, which would preclude criminal prosecution being brought against Biko’s killers. Former president F.W. de Klerk also went to court to remove a commission finding about his role in the bombing of the headquarters of the South African Council of Churches in 1988. Several key members of the old regime refused to cooperate with the TRC, most notably P.W. Botha, President from 1978 to 1989, who scornfully derided the commission, as ‘a big circus’.

For their part, the ANC complained that, by criticising some of its actions when in exile, the TRC failed to properly distinguish between the ‘just war’ fought against apartheid and the oppression of the apartheid state which amounted to a crime against humanity. Then Deputy-President, now President Thabo Mbeki even claimed that the commission ran contrary to the principles of the Geneva Convention. Opposition parties, in turn, saw the commission as a partisan machine run by and on behalf of the ANC. For much of its two-year existence, it seemed like the TRC was dividing as much as uniting the emerging nation.

The National Unity and Reconciliation Act of 1995, which set up the TRC, was one of the most controversial aspects of the constitution-making process in South Africa. To secure the agreement of the National Party, the ANC agreed to allow amnesty for people who came forward and made a full disclosure to the commission, as long as they fulfilled the terms of the Norgaard principles. These stated that if the motivation for acts was deemed political, if the target was governmental or military, if the act took place within a framework of ‘due obedience’ and if full disclosure took place, then amnesty could be granted.

The TRC met for the first time in January 1996, dividing into three sub-committees: human rights, amnesty and reparation. Regional offices, community gatherings and public hearings took testimony from 20,000 people whose evidence was corroborated by an extensive Investigation Unit and Research Department. Four types of proceeding took place: public testimony from victims of abuses; hearings focusing on particular events such as the murder of Steve Biko; special hearings, for example, focusing on the role of women or young people; and those based around institutions ranging from faith groups to big business. In total, 7,000 people applied for amnesty, including Minister of Defence and former Umkhonto We Sizwe commander Joe Modise, and former Police Commissioner General Johan van der Merwe. To date, only 200 of these applications have been accepted.

Nevertheless, the trade-off, as some critics put it, of truth for justice was the most contentious element of the TRC process. The commission acknowledged that it was dealing with divergent notions of truth: factual or forensic truth looking at corroborated, systemic human rights abuses; personal or narrative truth focusing on victim statements; social or dialogic truth based on the actions, or non-actions, of specific groups and organisations; and healing or restorative truth, dealing with the explanatory context for what happened. The commission claimed to rest on concepts of restorative rather than punitive or retributive justice. Only through coming to terms with the past, claimed Desmond Tutu, chairman of the TRC, could South Africans find common ground and begin building a new nation together. The ‘systematic elimination of memory’, as Tutu called it, through censorship and the destruction of records needed to be reversed if the TRC was to serve as a bridge between a divided past and a collective future. It was hoped that ubuntu, the Xhosa term for solidarity, would restore dignity, pride and humanity to the victims of apartheid. As Tutu wrote in the commission’s final report:

‘Having looked the beast in the eye, having asked and received forgiveness and having made amends, let us shut the door on the past – not in order to forget it but in order not to allow it to imprison us. Let us move into the glorious future of a new kind of society where people count, not because of biological irrelevancies or other extraneous attributes, but because they are persons of infinite worth.’

While South Africa’s commission was messy but open, Chile’s was secret and limited. It reflected the partial transition to democracy in a country where the armed forces and old elite remained deeply entrenched in power. President Patricio Aylwin set up the Rettig Commission after 17 years of military dictatorship under Augusto Pinochet. But Pinochet remained the head of the military under the new regime. The commission was not an investigating body; it had powers only to gather information and interview victims and alleged perpetrators. Over a nine-month period, the commissioners travelled around the country gathering information on human rights abuses, interviewing victims and compiling a definite list of those who had been murdered.

The Commission’s final report concluded that over 2,000 people had been murdered under the dictatorship: half had no political affiliation and 60% were less than thirty years old. It accused the Pinochet regime of a ‘systematic policy of extermination’, recommending that, as the majority of human rights crimes had been committed by ‘agents of the state’, the state had the responsibility to recognise liability and compensate the families of the victims. Reparations were set at an initial payment of $3,000 followed by monthly stipends of $400 per month.

The limits set to the Rettig report were an important constraint on the consolidation of democracy in Chile. Throughout the 1990s, the discovery of mass graves at Pisagua, Copiapó, Calama and elsewhere heightened public clamour for more far reaching action against the perpetrators of human rights violations. Few Chileans believed that the commission’s report contained the whole truth about what happened under the dictatorship, or that its publication had resolved Chile’s human rights problems. Although the report was broadly accepted by the air force, the navy and the police force, Pinochet himself rejected its findings on behalf of the army, claiming that it was biased and had failed to understand that Chile had been in a condition of internal war.

Demonstration downtown Santiago against disappearances, before 1988 plebiscite.
Photograph by Marcelo Montecino

It was only with the arrest of the former dictator in London in October 1998 on charges of crimes against humanity that the Chilean transition gathered pace. As the case rumbled on, it acted as a catalyst for confronting the process at home. The former head of the secret police, General Humberto Gordon, was indicted and charged with murder. In August 1999, a roundtable was convened between the armed forces and human rights representatives in an attempt to reach an accord over the disappeared. During the dictatorship, the military had created constitutional safeguards which were supposed to provide amnesty against any future prosecution. Now Santiago judge, Juan Guzman Tapia, accepted more than a hundred suits from relatives of the disappeared against General Pinochet. He neatly argued that where no bodies had been discovered a case could be made for ‘perpetual kidnapping’ and thus the amnesty on past crimes failed to apply. In this way, a judicial process started to investigate the past in a manner that the constrained Chilean truth commission could not.

In March 2000, General Pinochet, who had been released by the UK Home Secretary on the grounds that he was too ill to stand trial, arrived back in Chile. He leapt from his wheelchair to embrace his high-ranking welcoming committee. But rather than returning to a hero’s welcome, Pinochet was met by a stream of vitriol from politicians, the public and many sections of the previously compliant media. In May 2000, the Santiago Appeal Court lifted Pinochet’s senatorial immunity, a decision ratified by the Supreme Court in August. In December, he was formally indicted for homicide and kidnapping. In January 2001, Chilean doctors agreed that Pinochet showed signs of dementia and he was placed under virtual house arrest. In June, the Santiago Appeal Court agreed that Pinochet was mentally unfit to stand trial.

As Isabel Hilton rightly put it in the openDemocracy discussion Marina Warner also refers to, it needed a judicial process – the ‘real act’ of indicting Pinochet – to make the substantive step that really began to straighten the record in Chile. Nonetheless, the journey was started by the Rettig Commission. It permitted a then only partially-reconciled country to begin telling a more inclusive and shared story.

Czech Republic: illumination or new purge?

By no means all transitions to democracy are accompanied by truth commissions, even if they could have benefited from them. Following the collapse of communism in east–central Europe, no country set up a formal commission to investigate past abuses. But all instituted some kind of process to deal with excesses committed in the communist era. In the Czech Republic, the government followed a policy of lustrace (illumination), setting up a committee of fourteen MPs to remove and exclude former agents and collaborators of the secret police (StB), secretaries of the Communist Party from the level of district committee and above, and members of the People’s Militia from high public office, government bureaucracy, the media, universities, the police and armed forces, for a period of five years.

However, the policy as devised was deeply flawed. Many politicians, including President Havel, refused to vote for it. Opponents argued that the commission relied too heavily on StB documentation, which they claimed was incomplete, could have been doctored to appease bosses or implicate enemies, and failed to differentiate between formal informers and those who had unwittingly helped the security services. The law carried no scope for mitigating circumstances, including torture.

Lustrace presupposed guilt, requiring the accused to prove their innocence rather than accusers to establish culpability. This allowed it to become both a powerful political tool and a moral condemnation of people who were, at least initially, unable to defend themselves. Names of people under investigation were regularly leaked to the press, only later for them to be found innocent.

In the most famous, or perhaps infamous case, Jan Kavan, a dissident who had spent much of the communist period in exile abroad claimed that he had no knowledge that he had been targeted by the StB, had been denied access to crucial files and prevented from presenting witnesses in his defence. Kavan won his appeal and later became Foreign Minister, but not before comparing lustrace to McCarthyism, declaring ‘we are at the top of the league at witch-hunts’. Because the process became a tool of rival political clans, it was necessarily unsatisfactory.

Windows on the past, bricks for the future

There is no single route map for societies escaping from, or seeking to escape from, entrenched conflict. In South Africa, a truth commission proved to be a valuable symbolic tool representing the birth of a new nation; in Chile, it was only the arrest of the former dictator which moved the transition on apace; in the Czech Republic, a flawed law has failed to provide a sense of resolution between an autocratic past and a democratic future.

What this makes clear is that, for all their drama, TRCs are not the real stuff of transitions. Free elections, the redistribution of economic wealth and the opening up of previously closed education systems are all more profound, vital changes to people’s lives in transitional countries. Truth commissions are stage shows which provide a backdrop, albeit an important one, to the transitional process. They provide, as it were, a new shared – rather than disjointed – history. Crucially, where they are successful, TRCs are victim-led; they offer the chance for people to tell stories that would otherwise go unheard, a weapon of the weak turned back against seemingly almighty oppressors, from both sides of the barricades.

The National Unity and Reconciliation Act of 1995, which set up the TRC, was one of the most controversial aspects of the constitution-making process in South Africa. To secure the agreement of the National Party, the ANC agreed to allow amnesty for people who came forward and made a full disclosure to the commission, as long as they fulfilled the terms of the Norgaard principles. These stated that if the motivation for acts was deemed political, if the target was governmental or military, if the act took place within a framework of ‘due obedience’ and if full disclosure took place, then amnesty could be granted.

The TRC met for the first time in January 1996, dividing into three sub-committees: human rights, amnesty and reparation. Regional offices, community gatherings and public hearings took testimony from 20,000 people whose evidence was corroborated by an extensive Investigation Unit and Research Department. Four types of proceeding took place: public testimony from victims of abuses; hearings focusing on particular events such as the murder of Steve Biko; special hearings, for example, focusing on the role of women or young people; and those based around institutions ranging from faith groups to big business. In total, 7,000 people applied for amnesty, including Minister of Defence and former Umkhonto We Sizwe commander Joe Modise, and former Police Commissioner General Johan van der Merwe. To date, only 200 of these applications have been accepted.

Nevertheless, the trade-off, as some critics put it, of truth for justice was the most contentious element of the TRC process. The commission acknowledged that it was dealing with divergent notions of truth: factual or forensic truth looking at corroborated, systemic human rights abuses; personal or narrative truth focusing on victim statements; social or dialogic truth based on the actions, or non-actions, of specific groups and organisations; and healing or restorative truth, dealing with the explanatory context for what happened. The commission claimed to rest on concepts of restorative rather than punitive or retributive justice. Only through coming to terms with the past, claimed Desmond Tutu, chairman of the TRC, could South Africans find common ground and begin building a new nation together. The ‘systematic elimination of memory’, as Tutu called it, through censorship and the destruction of records needed to be reversed if the TRC was to serve as a bridge between a divided past and a collective future. It was hoped that ubuntu, the Xhosa term for solidarity, would restore dignity, pride and humanity to the victims of apartheid. As Tutu wrote in the commission’s final report:

‘Having looked the beast in the eye, having asked and received forgiveness and having made amends, let us shut the door on the past – not in order to forget it but in order not to allow it to imprison us. Let us move into the glorious future of a new kind of society where people count, not because of biological irrelevancies or other extraneous attributes, but because they are persons of infinite worth.’

Funeral March (1999)
Oil on canvas by Madelaine Georgette

Nowhere is this clearer than in South Africa. The messy, even inchoate, process of the TRC was typical of the transition South Africa made as a nation. By choosing to operate in the public realm, the commission ensured that, for two years, its proceedings were the focal point and central drama of this transition. If nothing else, the TRC became a powerful corrective to the previously distorted history of the apartheid era.

By disregarding punitive measures and settling instead for reconciliation, the TRC followed, as Willie Esterhuyse puts it, a kind of ‘transformative justice‘, following the example set by negotiators that talking could triumph over violence. The TRC became part of a nation-building exercise, which consigned to history not just the apartheid era but also the liberation struggle itself.