Friday, May 24, 1996

Picking up the pieces

The first Amnesty hearing of the Truth and Reconciliation Commission (TRC) provided the public with an interesting dimension, since the process started where the Amnesty Committee played the role as both judiciary and a reconciliatory body.

Although the applicants in this case did not receive amnesty as the committee still had to decide on their application, it achieved its purpose of reconciling a community torn apart by past action. Perpetrators of the murder and relatives of the victim were able to reconcile their differences.

The five-person Amnesty Committee which sat in Phokeng in North West province, heard evidence regarding the amnesty applications of Christopher Makgale and Boy Diale, for the 1990 murder of chief Glad Mokgatle.

Despite the need for the legal discipline, the Amnesty Committee played a reconciliatory role where the Bafokeng people were afforded the opportunity to reconcile with some of their broken past.

In terms of the legal process, the amnesty applicants and their legal team, headed by Brian Currin, were rigorously cross-examined to establish if the act of murdering the 85-year-old Mokgatle met the criteria required for amnesty.

At the same time, the Amnesty Committee gave the opportunity to various Bafokeng community members to make reconciliatory statements about the case and the effect on the community as a whole, even if this had no direct bearing on the granting of amnesty.

There were strong expressions of remorse for the crime on the part of both Makgale and Diale. Makgale asked for "forgiveness from the relatives of the deceased and the Bafokeng tribe."

Aaron Mokgatle, 54, son of the victim, told the committee, "Here in Phokeng we are one family. They (Makgale and Diale) performed a terrible deed - they killed their own grandfather, but we are still one family."

Charles Mokgatle, also a son of the deceased, pleaded with the community to b

ury the past and no longer persecute the family for their father's support of the Lucas Mangope government.

However, at the end of the day, it is the precise technicalities of the Promotion of National Unity and Reconciliation Act which establishes the Commission, against which evidence must be weighed when determining whether perpetrators receive amnesty.

In order for someone to qualify for amnesty the committee must be satisfied that full disclosure by the perpetrators of the relevant facts has been made. The act must have been of a political nature and must have occurred between March 1, 1960 and December 5, 1993.

The committee will also be guided by certain considerations:

  • The motive of the person who committed the act;
  • The context in which the act was committed, whether it was part of a political uprising or disturbance;
  • The legal and factual nature of the act, including the gravity of the act;
  • The object or objective of the act, in other words, against whom the act was primarily directed;
  • Whether the act was carried out by order or approval of a political body, institution or individual; and
  • The relationship of the act and the political objective and the proportionality of the act.
In this week's hearing, Currin argued that the context in which the act was committed was characterised by intense political conflict and that the case needs to be understood in this light.

He stressed that the political objective was clear and that the applicants had broadly intended to regain control over Bafokeng political affairs, by attaining the keys from Mokgatle, to the Civic Centre, where all meeting and decisions regarding the tribe affairs took place. The vigorous approach of the TRC's legal team and members of the Amnesty Committee signalled the committee's intention to treat amnesty cases with the seriousness such violations demand.

The procedure of the hearings, determined by the Amnesty Committee, is modelled on court case proceedings, with the legal team leading the evidence on behalf of the TRC and the defence team on behalf of perpetrators.

The Commission, under the Promotion of National Unity and Reconciliation Act, is obliged to appoint legal representation for the applicants where they cannot afford to do so, or where it is in the interests of justice.

On observing the first hearing, it seems crucial to all amnesty applicants to have legal representation, as clearly amnesty will not be granted automatically and the committee will carefully scrutinise each case.

Despite the need for the legal rigor the Amnesty Committee also played a reconciliatory role. The Bafokeng people were afforded an opportunity to reconcile some of the pieces of the past history.

The real challenge to the Amnesty Committee will be when it starts to consider the 400 amnesty applications received to date, which may not be so clear cut and where there may be little feelings of remorse shown by the amnesty applicants.

Published by Brandon Hamber and Bobby Rodwell,  New Nation, 24 May 1996.

At the time of writing, was the former Manager of the Transition and Reconciliation Unit at the Centre for the Study of Violence and Reconciliation and Bobby Rodwell a freelance writer and researcher attached to the Centre.

Truth Commission Amnesty Committee Has an Uphill Battle

Rodwell, B., & Hamber, B. (1996, 24 May). Picking Up the Pieces: The Amnesty Committee Has an Uphill Battle. New Nation [Read Online]

Monday, January 22, 1996

The need for a survivor-centered approach to the Truth and Reconciliation Commission

A Truth and Reconciliation Commission (TRC) is to be established in South Africa with the express purpose of facilitating a truth recovery process aimed at reconciling with the past. According to the objectives of the Promotion of National Unity and Reconciliation Act this is to occur through the establishment of as complete a picture as possible of the causes, nature and extent of past abuses. The survivors of these abuses will be afforded the opportunity to relate their stories so as to restore their human and civil dignity. Thereafter, the TRC will drawup a policy, which the government will carry out, for the granting of reparations and rehabilitative measures to these survivors. Furthermore, the TRC intends to enhance reconciliation by granting amnesty to perpetrators of human rights abuses. A comprehensive report documenting these past abuses will be compiled and the report will also make recommendations as to how such events can be prevented from occurring again.

On the legal and political front it is envisaged that this will contribute to the re-establishing of the rule of law and to the creation of institutional apparatus which can contribute to the building of a human rights culture. This will largely depend upon factors like political legitimacy, dealing with the controversial issues of granting amnesty, the calibre of the commissioners, an efficient documentation system and the competent running of the process. However, these macro debates, and particularly the issue of amnesty, tends to over-shadow the implications of this process for the numerous "direct"(e.g. torture survivors, survivors of assault and attempted killings) and "indirect survivors" (e.g. relatives of the "disappeared") who will be interacting with the TRC.
"On my way..." by mripp is licensed under CC BY 2.0.

At present it appears that two main discourses exist concerning these survivors and their potential experience of the TRC. Either, those largely in favour of the TRC, argue that the TRC will heal the wounds of the past through survivors telling their stories to sympathetic individuals who, for the first time, will acknowledge their real pain. Alternatively, those opposed to the TRC, argue that the TRC is a destructive mechanism that will simply open up past wounds (which are presently healing) resulting in anger, bitterness and revenge. 

However, both these assertions are generally made by political role players without a real appreciation of the psychological processes at play. In terms of the first position which advocates the ability of the TRC to promote individual and collective healing, a basic principle of psychology teaches us that past traumas do not simply pass or disappear with the passage of time. Trauma requires revisiting if it is to be dealt with adequately. Giving testimony can facilitate this through the re-living of the event, building a context of meaning for survivors, allowing survivors to feel heard for the first time and acknowledging the enormity of impact of the events on their lives. Further, by creating an accurate picture of the past, individuals and broader society could be liberated from a skewed view of humanity constructed solely around the inhuman legacy of South African society. In addition, the process of truth recovery could also be instrumental in breaking this culture of silence that the misinformation and "official story" of the past repressive government so carefully created. 

Furthermore, although monetary values cannot be assigned or replace suffering experienced, the granting of reparation could also redress the past abuses to some degree. The TRC will not make monetary awards as reparation but will be focusing on rehabilitative strategies or measures like free schooling and medical aid schemes. Reparations is a complex and difficult task, but could serve the psychological process of concretising the event and symbolically acknowledging the individuals suffering. In other words, it is not the physical reparation but the process of amending, recognising and acknowledgment could serve the most restorative psychological function. The TRC could also serve as a symbol of a national willingness to deal with the past and build a new future. 

The more negative position with regards to the TRC points to the real danger of unearthing trauma without formulating a clear strategy to deal with the anger, sadness and other emotional difficulties that may arise. It is imperative that the TRC does not unearth painful memories or cause people to re-live difficult times without ensuring that appropriate services and support structures are available to them. The psychologically healing process of testifying or telling ones story is not dependent upon the content of the story (as lawyers tend to assert) but rather on the environment and the process of the actual re-telling. 

Reparations too, are not intrinsically guaranteed to redress the past abuses. Although symbolic compensation can be useful it can never be enough or replace ones suffering. In a context of real impoverishment, short-term monetary gain may be favoured over long-term reparative or rehabilitative policies. Unfulfilled expectations hold the singular most destructive potential for the TRC. Further, there are those who argue that the granting of amnesty will simply lead to revenge because many will feel that justice has not been done, and will therefore take the law into their own hands. 

However, the warnings posed above should not be equated with a rejection of the process entirely. Given that past trauma cannot just be expected to disappear with time (this is evidenced time and time again with trauma work in which past traumas are routinely revisited decades later), the TRC should be viewed as a necessary but not a sufficient mechanism for dealing with our past constructively. A range of additional structures and services will be required to ensure the success of the process. For example, for survivors and families of victims the availability of those who can support them through the process should be ensured. This would include appropriate counselling if necessary, and preparation for testifying and debriefing thereafter. These services should be supplied by a range of professionals both inside and outside the TRC, as well as trained volunteers and even other victims themselves who have been through the process. 

Informal forms of psychological support are also crucial. Groupings like the Khulumani or Speak-Out Support Group, who are a Gauteng based group of survivors and families of victims, need to be developed and supported. From the Centre for the Study of Violence and Reconciliation's experience of working with the group, the members provides valuable psychological support to one another. The group meetings are a safe environment in which many can come to terms with painful past memories and share experiences with other survivors. 

A national education programme is also undoubtedly necessary and expectations should be a key focus of such a programme. This will not be a simple task as expectations vary a great deal. Some people simply want the truth, others demand financial compensation, still others are hoping for a proper funeral for their "missing" loved ones and a range of individuals want formal apologies or recognition for the sacrifices they made during the process of liberation. Still for others the greatest compensation would be to see the perpetrators brought to justice. Expectations will need to be mediated by the TRC itself, organisations working with victims, community-based organisations, survivor support groups and churches who have grassroots contact with those who wish to testify. 

The issue of amnesty in this regard may pose a specific challenge. The context in which it was agreed to grant amnesty to those who violated human rights needs to be properly understood. It needs to be understood that amnesty was a compromise to ensure a democratic election, but at the same time that the granting of amnesty will not be automatic. There will be no blanket amnesties and the perpetrators of particularly brutal and heinous crimes will not qualify for amnesty. Amnesty applications will be carefully scrutinised and verified, and only full disclosure of each and every individual political crime will ensure a successful amnesty application. This will mean that the truth is always known when amnesty is granted and for some survivors, especially if the perpetrator suffers social repercussions, this may suffice as the demand for truth may be greater than the need for retribution. 

However, there will always be resultant feelings that need to be dealt with by support structures. Furthermore, it is crucial that it is not expected, either overtly or covertly, that survivors should forgive the perpetrators. Anger and other emotional responses by survivors needs to be legitimised and space provided for individuals to express their feelings openly. Survivors will feel great resentment and may desire to take revenge if they feel their emotions are not tolerated and understood. The TRC could contribute to a spirit of collective or national reconciliation but this does not necessarily equate with the difficult individual process of forgiveness which takes time and support. 

Clearly, therefore, if the TRC is to operate as a psychologically healing mechanism additional psychological and social support services will need to be developed and sustained throughout the life of the TRC. Responsibility should fall on the TRC to deliver some of these services but also support the development of other structures to run parallel to the TRC. Responsibility should also be taken by human rights organisations to support the process and build reconciliation through it. It is a fact that we have to deal with the ravages of the past violence with or without the TRC, and if the TRC provides structures and resources to do this, then all the better. The responsibilities of NGOs also extends beyond direct service provision. Organisations should engage actively with the process and consistently lobby to ensure the integrity of the process (e.g. ensuring that through public pressure perpetrators of past abuses are removed from office). A survivor-centered approach needs to be continually reinforced, broad commemorative initiatives should be undertaken (e.g. remembrance rallies) and survivor-based initiatives supported. 

In conclusion, we need to begin the process of truth and reconciliation through recognising the limits of the TRC or it will be doomed to failure. It cannot address all the apartheid ills, just as prosecutions alone will not lead to dealing with our past or a new national flag will guarantee reconciliation. Reconciliation cannot be confined to any one process or commission. In fact, any uniform mechanism is in itself is insufficient. Thus, the TRC needs to be viewed as one of the mechanisms for addressing the conflicts of the past. However, it needs to borne in mind that it is an artificially constructed phenomenon which will be profoundly different from individualised and personalised ways of coping with adversity. This reinforces the need for the process of reconciliation and social support to occur at an individual level, as well as collectively. As resources are needed to be rebuild our economic and social infrastructure, so too are they required to restore the human potential and dignity of our nation. 

Brandon Hamber is the former Manager of the Transition and Reconciliation Unit at the Centre for the Study of Violence and Reconciliation. 

Article appeared in Community Mediation Update, No. 9, January 1996.