Official silence on reparations cheats victims of past conflicts of their rights

A basic value recognised through the establishment of the Truth and Reconciliation Commission (TRC) was that it is better to deal with difficulties than to keep them hidden.  Yet, when it comes to the issue of reparations for those wronged in the political conflicts of the past, it appears that the government, which is responsible for implementing the TRC recommendations, is choosing to ignore the issue completely.  They appear to hope that if they do not say anything their responsibility will be forgotten. 

The TRC handed over its reparations proposals, which include both financial and symbolic strategies to assist victims, to government in October 1998.  Sixteen months later there has been no substantial debate in parliament.  The lack of government involvement has so stifled discussion that the issue is in danger of falling off the agenda.   Thabo Mbeki even failed to mention follow up to the TRC in his opening address to parliament

The result of the general lack of government engagement with follow up to the TRC has created a political vacuum.  Government is filling this gap with claims that they do not have enough money to make reparations – an odd statement considering they have not investigated possible options for funding.   Other people are fond of labeling victims by saying that the struggle was not about money.  This conveniently denies victims their legal rights and implies that those who went before the TRC, despite being encouraged to do so, went only for opportunistic reasons.  

Still others point out that the 18 000 odd TRC victims eligible for reparations do not represent the majority of those victimised by apartheid. They argue, perhaps correctly, that reparations should benefit entire communities.  But this view fails to acknowledge that those who came forward to the TRC did so in good faith and speaking before the TRC was an opportunity available to all South Africans.  

The Constitutional Court ruled that amnesty could be granted because reparations, be they broad or specific, will be made available.   The UN Economic and Social Council clearly states that survivors and the families of victims of human rights violations have a right to truth, a right to justice, a right to non-recurrence and the right to reparation.    There are at least five other international instruments, which talk of the need and right to reparation. 

Given this it is sad that the South African government, which is supposedly in sync with international human rights trends, has not even started to review such instruments.  This is even more distressing in the context that we have already circumvented the right to justice for many victims through the granting of amnesty. 

 It is startling that the government has only made one public announcement about reparations since October 1998.  The Ministry of Justice released a reactive statement in late 1999 following the victim’s protests to highlight the government’s slow progress on the issue of reparations.  Predictably, costs were highlighted in the Ministry of Justice’s statement as a “major constraint” to implementing the TRC recommendations.  Perhaps this is a factor, but at this stage, it is pure speculation considering no substantial research has been undertaken into the issue.

Photo by Old Mate on Unsplash

The lack of public debate so far runs the risk of reducing the critical question of reparations to the pragmatics of cost before any principles have been set.  Step one in the process should be to establish whether survivors of violence have a right to reparation in the first place.  To date, most South Africans and government have failed to even attempt to answer this question.  The principle must be established, and a thorough investigation undertaken before government starts to say the costs of a reparation programme are too great.

Furthermore, developing countries have borne these sorts of costs before.  In Chile - a country with a GDP per capita not very much higher than ours - children of those killed during the military dictatorship of Pinochet have a right to a monthly pension until they reach 25 years of age. For the rest of the beneficiaries the pension is for life. The monthly pension is between R1,400 and R2,000 for the family of the deceased depending on the number of dependants.  About 800 scholarships a year are also granted to the families of victims.  Victims also get free medical and psychological care. The fiscal burden of this programme is about R120 million per year.   The South African TRC proposes R480 million a year - for the next six years -  for a country over three times the size of Chile.

Over the next few years, government will find 30 billion rand to buy weapons, and even during the life of the TRC they found about R100 million a year to keep the process afloat, but they seem unwilling to consider finding funds to finish the process.

The political will to assist victims seems to be gone. However, letting sleeping dogs lie is rarely the cry of the victims.  Granted reparations cannot bring back the dead, but they are a moral right in any healthy society.  In the context of the loss of a breadwinner they can help restore a family to their previous level of subsistence.  Importantly, they reaffirm the victim’s dignity – something accusations of opportunism and government lethargy severely undermine.  Reparations tell the survivor that they are important and a valued member of society. 

A letter from the Truth Commission informing you that you are now officially ‘a victim’, is surely not enough to heal wounds and acknowledge pain. To date, well over 500 people have been granted amnesty in South Africa for murder and torture.  Granted, reparations alone cannot fully cancel the injustice of amnesty, but it is a start. 

The bare minimum is that we should debate the issue of reparations publicly and honestly.   If we then get to the point that we think reparations should not be granted, then we need to have the courage to stand face to face with victims and tell them that, despite their sacrifices, they have been deprioritised in favour of another budget item.  

Originally published  by Brandon Hamber in the Sunday Independent, 20 February 2000

Brandon Hamber was, at the time, co-ordinator of the Transition and Reconciliation Unit at the Centre for the Study of Violence and Reconciliation (CSVR).

Reparations debate must begin anew

A year has passed since the truth commission submitted its final report to the then president Nelson Mandela and the public.  Unfortunately, other than the occasional amnesty report, a deafening silence prevails about what is to happen next. 

 The list of recommendations made by the TRC received passing reference in parliament then disappeared from the news.  The most controversial component of the TRC's recommendations, the reparations policy, also seems to be slipping from the national agenda. 

 One of the sectors the commission called on to redress its past was business.  It is indisputable that until the dying days of apartheid, the system continued to create an economic environment conducive to white economic advancement and unfavourable to black labour.

 Should business pay for a reparations programme? Or more pragmatically, does the country have enough resources?  And, what is government doing to facilitate this process?

 There are no easy answers.  But the lack of public debate so far means that the reparations process may be reduced to pragmatics before any principles have even been set.  Step one in the process should be to establish whether survivors of violence have a right to reparation in the first place.  To date, most South Africans and government have failed to even attempt to answer this question.

Reparations for those who suffered in the past, according to the TRC report, should include financial compensation and mechanisms from the erection of headstones to programmes for better access to social services.  Internationally there is a growing recognition that reparations of this sort are integral to justice.  Bodies such as the UN are advocating that compensation for victims of political and criminal violence should be legislated as a matter of course.   South Africa lags hopelessly behind in these debates.

In South Africa, the rights of victims seem to be overruled by potential cost factors.  There seems to be a covert accord between business and the government that any reparations programme would be too expensive.  This is odd considering no substantial investigations, or research, into the issue has been undertaken by government or business.

The truth commission argues that the financial component of reparation alone, for those found to be victims, should be around R21 700 annually for each victim or their beneficiaries.  With an estimated 22 000 victims being paid for a suggested six years, this would amount to R477 million a year, or close to 3 billion over the entire period.  Currently, the responsibility to implement this, as well as the equally important symbolic mechanisms of reparation, rests with government. 

The commission recognised the potential economic drain and made a number of suggestions on how to fund the process.  These included: a wealth tax; a once-off levy on corporate and private income; listed companies making a once-off donation of 1 percent of their market capitalisation; a retrospective surcharge on corporate profits; the suspension of all taxes on land and other material donations to formerly disadvantaged communities; debt cancellation; and the utilisation of the South African Risks Insurance Association Fund as a source of funds.

These suggestions seem to have been written off before the debate about practicalities has even started.   The commission's suggestions should provide a welcomed starting point for incorporating the business sector into the process of reconciliation.  If South Africa is ever to move beyond its third world status, it is essential that the benefits of macroeconomic policies for the business sector are counterbalanced by social obligations.  

The very least that victims of apartheid are owed is that the reparations issue is discussed publicly.  Government must take a lead in that regard.  A point of departure for business, and those who feel they owe nothing to those victimised in the past, should be to address three issues in a direct fashion:

• Why do they feel they are morally exempt from making a contribution to any reparations programme. 
• They should address each of the commission's suggestions in detail, arguing why they feel they make no fiscal sense and can therefore be justly ignored; and
• They should outline what it is they are currently doing to redress the imbalances of the past.

This process needs to be supported by government. Government has earmarked R300 million (at the time about £30 million) for the reparations process of which it has spent just R25 million.  Eight thousand people have received about R3500 each as a so-called interim payment.

This is minuscule next to the funds spent on granting amnesty - and laughable in the face of some of the civil claims victims have forfeited in the name of furthering reconciliation. 

 A long term, substantial reparations programme seems a long way off. It would need to include financial compensation, symbolic measures like building memorials, and the assurance that victims get adequate social and medical assistance.

Surely government recognises that the current lack of debate about the granting of reparations to victims of political violence is nothing short of an embarrassment for South Africa, which is supposedly a champion of human rights. Not only were victims' rights to justice undermined by the amnesty provisions, but the lukewarm approach to reparations by all sectors in society, including the government, remains a constant reminder that human rights principles have barely taken root.

Originally published Brandon Hamber & Kamilla Rasmussen, Business Day, Friday 29 October 1999

Brandon Hamber is a fromer programme manager and Kamilla Rasmussen an intern at the Centre for the Study of Violence and Reconciliation in Johannesburg.