South Africa: no justice without reparation

Nahla Valji
1 July 2003

The Truth and Reconciliation Commission in South Africa has been widely praised as a crucial mechanism of reconciliation in the post-apartheid era. But has its reputation been gained at the cost of a collective evasion? Recent lawsuits against US companies allegedly supportive of apartheid highlight South Africa’s still-open wounds, and suggest that ‘reconciliation’ is intimately linked to ‘reparation’ – and imply that without the latter, South Africa can find neither justice nor closure.

As South Africa approaches the end of its first decade of democracy, it continues to grapple with the legacy of its apartheid past, economically, socially, and politically. Heralded across the world as a model of democratic transition and successful reconciliation, much of the credit is often vested in the institution established to ‘deal with the past’ – the Truth and Reconciliation Commission (TRC).

The TRC was established to grant amnesty to those who had committed political crimes on both sides under apartheid; to record the story of (predominantly black) victims whose voices had until then been silenced; and to make recommendations on reparations, both symbolic and monetary, for those identified as victims.

A testimony at the Truth and Reconciliation Commission

When he killed him, he got a fine, then he’s out of jail. I have forgiven them but something must be done. We won’t say these perpetrators must give us their money but they must give us something to show they are sorry. So they must not say they are sorry and there is nothing they are contributing to the victims. If the government could let the perpetrators contribute it would be better.

The life of the TRC and its ‘complex achievements’ have been well documented in the openDemocracy essay by Gillian Slovo. Her article contributes to the debate on the TRC model not only from a removed academic perspective, but from the deeply personal perspective of one who lost a loved one to the anti-apartheid struggle – and as such had much to be suspicious of an institution that allowed her mother’s killers to walk free.

It is precisely this element of amnesty that made it such an unpalatable compromise; but one which, as Slovo noted, was necessary for the country to steer itself safely to the calmer waters of democracy. The Commission attempted to balance this denial of the victim’s rights to justice by making a wide range of recommendations on reparations. Whilst acknowledging that no amount of money could ever repair the damage of the past, nor bring back lost family members, it was hoped that the implementation of these recommendations would begin to restore the dignity of victims and redress the legacy of the policies of the past.

Unfortunately, the provision of reparations by the state has been slow. Moreover, there has to date been little atonement from either businesses that profited from the discriminatory policies of the past such as job reservation, wage discrimination and forced labour; or from individuals who benefited from the policies of apartheid merely by virtue of the tone of their skin. In part, this denial of responsibility was permitted and facilitated by the very way in which the TRC engaged with its task of uncovering the past. It has been strengthened by government’s unwillingness to support a reparations scheme that extends beyond merely contributions by the state.

An evasion of responsibility

Earlier this year the Truth and Reconciliation Commission concluded the last of its work and handed over its Final Report to President Mbeki. With this conclusion, government announced its response to the TRC recommendations – in particular the long-awaited policy on a reparations programme for former victims. As the model of the Commission is being picked up with increasing frequency by countries transitioning from conflict to democracy, it is important to critically assess and evaluate the Commission’s contribution to transforming South Africa.

A key criticism of the TRC model has been its focus on individual instances of gross human rights violations, which served to deflect responsibility from the broader structures of apartheid and those who benefited from them. Government has since perpetuated this denial of responsibility by refusing to hold to account businesses and individuals who profited from the repression of the old regime. In aligning itself with business, government has issued a wholly inadequate and one-dimensional reparations policy, and has forced some victims to seek the desired redress from class action reparations lawsuits currently underway in the United States.

The transference of power that occurred in this country in the early 1990s was part of a negotiated settlement that allowed for a political transition, whilst leaving the economic wealth still firmly in the grips of white South Africans. As apartheid was dismantled, it was hoped that the inequalities that it had legislated into being over decades would begin to be addressed.

Instead the gap between the rich and the poor, the largest inequality gap in the world, is today worse than it was ten years ago. Poverty and unemployment continue to grow, and the country encompasses what President Mbeki has termed ‘two nations’ – the one an elite minority with First World standards of living, the other a predominantly black majority living below the international poverty line.

It is against this backdrop of an absence of social justice and the frustration of expectations that the Truth and Reconciliation Commission was mandated to foster national unity and reconciliation.

Apology without reparation

The TRC was tasked with uncovering and recording instances of ‘gross human rights violations’ – defined narrowly as killings, torture, and severe mistreatment. This exclusive focus on individual crimes and the ‘excesses’ of the apartheid regime came at the cost of largely ignoring the institutional violence that characterised National Party rule for over four decades.

Nowhere has the story been adequately told of the victimisation of the majority; of the bulldozers that came in the middle of the night to destroy homes and possessions and dump them in the middle of nowhere under the logic of forced removals; of the education system which was designed to equip Africans to be no more than ‘hewers of wood and drawers of water’; of a migrant labour system which tore families apart; and of a racially-based wage structure which by 1993 had led to whites being paid ten times that of the average African worker.

In essence, few South Africans felt their own experiences of oppression were represented or reflected in the work of the Commission. Moreover, the focus on individual crimes meant that those who had benefited from apartheid could express shock and outrage alongside the victims of the past, allowing them to deny their own complicity in the perpetuation of an internationally condemned crime against humanity.

Recent studies undertaken domestically have found that less than a third of whites – who benefited under a system that ascribed privileges by the colour of skin – acknowledge their past or continued economic benefits. This denial of responsibility has obstructed the path to socio-economic justice and redistribution, and through it to a meaningful reconciliation.

The term reconciliation itself is hotly contested, even more so what it takes to achieve reconciliation. In mainstream discourse in South Africa the term has largely been defined within the paradigm of a Christian theological origin, personified in Archbishop Tutu who headed the TRC. Perhaps because of this, the meaning of reconciliation has been closely affiliated with the sister concept of forgiveness. There has been little talk of a word that is far closer in meaning to reconciliation than that of forgiveness; and is used almost interchangeably in older religious texts – atonement.

Whilst forgiveness brings to mind a dialogue which includes confession and apology as precursors, atonement is defined as the state of being reconciled, but more importantly, of the substantive action that is taken to bring reconciliation about. Apology, particularly in the South African context, is insufficient and insulting if it is not accompanied by some form of reparation that seeks to address the economic privileges accrued through segregation and apartheid.

The South African government however has chosen to sideline calls for reparations at the behest of the local and international business community, rejecting the TRC recommendations on a once-off wealth tax on individuals, a reparations fund for business, and the restructuring of the inherited debt of the apartheid regime incurred for the purposes of financing a minority-led police state. Having largely failed to take up the gauntlet of reparations themselves, government then went further and condemned the current court cases being pursued in American courts against lending institutions and international businesses that profited from apartheid.

The campaign for redress

Earlier this year, US and South African lawyers, representing tens of thousands of apartheid victims, filed a number of court cases in the United States. These cases have been filed under the Alien Claims Tort Act of 1789, the same legislation recently used by lead lawyer Ed Fagan to win over one billion dollars in reparations from Swiss banks that profited from the Holocaust. The cases involve charges of gross violations of human rights, including a $6 billion dollar suit against Anglo-American for alleged torture and enslavement of its employees, as well as unjust enrichment more broadly.

Business has continued to deny its role in propping up and benefiting from apartheid, arguing instead that it was key in bringing an end to the regime. The TRC Final Report found to the contrary however, emphasising that business had been central to the economy that allowed the apartheid regime to continue in power.

Perhaps the most succinct evidence of their direct involvement came from apartheid spy and assassin Craig Williamson, who during the course of his testimony to the TRC declared that “Our weapons, ammunition, uniforms, vehicles, radios and other equipment were all developed and provided by industry. Our finances and banking were done by bankers who even gave us covert credit cards for covert operations”.

This direct involvement in the perpetration of gross human rights violations was accompanied by financing which kept the apartheid government in power. Just one example would be the financing provided by Swiss banks during the 1980s in order to prop up the P.W. Botha government and bail them out of a financial crisis. This was in spite of a concerted international sanctions campaign and the declaration of apartheid as a crime against humanity.

The monetary relief the legal cases pursue is twofold. The first would be a pay out to a limited number of victims whose violations were extreme and specific. The remaining money obtained would be put into a humanitarian fund that would begin to redress the legacy of economic disparities left over by apartheid. It is precisely this latter objective that government has failed to pursue, and which in the absence of a concerted effort of redistribution and reparations, has forced victims to seek redress elsewhere.

The South African government has condemned this use of ‘foreign courts’, choosing instead to ally itself with business and to reassure nervous international lending institutions of their commitment to the ‘needs of capital’. But the Government’s failure to recognise the needs of its own people, and to live up to the role demanded of it in furthering social justice, has in the words of one lawyer on the international case, ‘merely strengthened the case for reparations’.

It is unfortunate in the South African case that victims need to seek redress in the courts of other nations, having been sidelined by their own government in their quest for justice. The need to pursue this particular avenue of redress is perhaps most unfortunate because it is unlikely, as one Commissioner of the TRC has noted, that the principles of international human rights will be upheld against the wishes of corporations in the highest court of a country that is the bedrock of neo-liberal capitalism. What this would mean for victims then is that once more, their expectations of justice will be thwarted.

Justice over the past is a claim on the future

The unwillingness of past beneficiaries to contribute to redress and reparations means that any apologies that may have been forthcoming are largely meaningless. The relationship between reconciliation and reparations cannot be overemphasised. At the end of the day, reparations are not just about redressing the wrongs of the past they are also about building a politically and economically stable future for this country. The ‘miracle’ of a new South Africa is hardly sustainable if it is built without restoring the dignity and humanity of the majority of its citizens, nor if it fails to address the economic inequalities which fuel social conflict.

The need for an internal Marshall Plan – one that would redistribute the benefits of citizenship broadly, and that would create a more socially just society – is indisputable. The benefits of such a policy were recognised in Germany in the early 1990s as East and West Germany embarked on reunification. The West German state instituted a ‘solidarity tax’ on its citizens to assist in the reconstruction of East Germany and to ensure that reunification was a successful endeavour.

It is hoped that former beneficiaries in South Africa will cease looking at redistribution as rooted in the past and against their own interests, and rather see it as being a solidarity contribution to a strong future. In this regard, the first step would be a concerted redistribution programme by the government, with the willing support of those who continue to dominate the economy of a country still very much divided on racial lines.

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