Making Reparations to the Survivors of Past Political Violence

From Rhetoric to Responsibility: Making Reparations to the Survivors of Past Political Violence in South Africa edited by myself and Tlhoki Mofokeng is now available in the Amazon Kindle Store (£1.99 to read on Kindle) or request a free PDF.

This book is a collection of chapters that deal with the issue of making reparations to those victimised during South Africa's apartheid past and who appeared before the Truth and Reconciliation Commission (TRC). Despite the obligation clearly stated in the Promotion of National Unity and Reconciliation Act (hereafter TRC Act) to make some form of reparations to those found to be victims by the TRC, the issue of making reparations to those wronged in the past has received negligible attention. This book is more than a call to grant reparations. It provides summarised information on the TRC and its reparations policy. Furthermore, it provides an overview of the legal ramifications and moral arguments for reparations, whilst providing additional information on reparations processes abroad. 

The book has 8 chapters:

CHAPTER 1
Contextualising Reconciliation and Reparations in South Africa
Brandon Hamber & Tlhoki Mofokeng

CHAPTER 2
The TRC's Recommendations on Rehabilitation and Reparation
Mpho Leseka

CHAPTER 3
Common Guilt or Common Responsibility? Moral Arguments for Reparations in South Africa
Fr Michael Lapsley, S.S.M. & Karin Chubb

CHAPTER 4
The Unfinished Business of the TRC
Yasmin Sooka

CHAPTER 5
Constitutional, International and Comparative Law Perspectives on Reparation
Shadrack Gutto  

CHAPTER 6
An Assessment of the Impact of Urgent Interim Reparations
Anna Crawford-Pinnerup

CHAPTER 7
Financing a Reparations Scheme for Victims of Political Violence
Brandon Hamber & Kamilla Rasmussen  

CHAPTER 8
Dealing with the Difficulties of Granting Reparations in South Africa
Brandon Hamber

Get on the Amazon Kindle Store (£1.99 to read on Kindle) or request a free PDF.

No justice in amnesty without reparations

The last few weeks have seen a flurry of media reports on the Truth and Reconciliation Commission's reparations policy.  Victims who testified before the TRC accuse government of moving too slowly on the TRC's recommendations.  The government blames the TRC for not spending all the money allocated to the reparations budget.  In turn, the TRC is accusing the government of failure to act promptly on its recommendations.  

Whichever way you look at it, the victims are getting a raw deal.  They have been victimised by what happened to them in the past and have had to watch perpetrators getting amnesty.  They waited for two and half years for so-called urgent interim payments, which, on average, amount to little more than R3500 for violations such as murder and rape.  To make matters worse, the TRC's long-term reparations recommendations, tabled in October 1998, still await substantial discussion that moves beyond political posturing towards exploring feasible options.

Recently victims groups have made some strong statements in the press.  The Khulumani Victim Support Group have taken to the streets to protest the slowness of government’s response to the TRC's proposals.  The Justice Ministry’s spokesperson, Paul Setsetse, admitted in the City Press recently that the long-term process has “moved slowly” and that “there are no intentions to scale down final reparations or to sweep the issue under the carpet”.  This remains to be seen. 

Concrete proposals need to be put on the table.   These must move beyond the focus on the minimal urgent payments, which have obscured the real issue.   A long-term reparations policy needs to be fleshed out and debated publicly.  If this does not happen, victims may have cause to consider different legal options.  One is to investigate the constitutionality of limiting reparations in light of the generous amnesty provisions.  The other option may be to appeal to the international human rights community, many of whom are itching to test more legislation following the relative successes of the Pinochet case. 

The right to reparation for wrongful acts has long been recognised as a fundamental principle of law essential to the functioning of legal systems.  In this sense the right to reparation is not new.  However, internationally the will to enforce it seems to have increased.  

The hiatus in the reparations process in South Africa is in sharp contrast to the importance that reparations is currently being given internationally.  The UN Commission on Human Rights will adopt in the near future a set of Basic Principles and Guidelines on the right to reparation known as the ‘Van Boven Principles’.  Furthermore, the International Criminal Court, to which South Africa is a signatory, will be the first international criminal tribunal to have the power to award reparation to the victims of crimes which come before it.

Photo by Tingey Injury Law Firm on Unsplash

Reparation is recognised under international treaties and customary law in decisions by the United Nations Human Rights Committee, the Inter-American Court of Human Rights, the European Court of Human Rights and national law and practice, as well as in a number of other international treaties. Recent developments suggest that soon reparation will become an international standard not just a principle.  Therefore, if reparations are not granted to victims in the long run, and lets hope this is not the case, it may be possible for them to test whether this would contravene South Africa's international obligations. 

Another way in international law which may have relevance for the situation in South Africa is the developing concept of ‘legitimate expectations’. A 'legitimate expectation' is a tool of administrative law intended to provide procedural fairness. According to this concept, if a government publishes a policy or makes a representation about how it will proceed in making decisions, those affected by the decision must be given the opportunity of a hearing if the decision-makers act in a manner which is contrary to the policy.  Given the fact that reparations is enshrined in the act which gave birth to the TRC this may be a further route to consider if reparations are not granted. 

Australia has recently seen a successful case drawing on the principles of ‘legitimate expectations’.  This may set a precedent in which the ratification of international treaties will bind administrative decision-makers to take account of these treaties where they affect individual rights of their citizens.  For example, if the right to reparations is built into an international treaty, as it is in the Convention Against Torture of which South Africa is a signatory, the signatory will be obliged to make reparations.

Notwithstanding the reparations debate, there are also other international precedents that have developed recently which have implications for the TRC process.  Victims could, for example, challenge South African amnesties in the courts of other countries.  The reverberations from the Pinochet case in the UK has meant that the concept of ‘universal jurisdiction’ has become more widely recognised.  Certain crimes such as war crimes, crimes against humanity, genocide and torture are so universally abhorred that they constitute crimes against international law. A number of international treaties place signatory states under a duty to ensure that suspects who come within their borders are brought to justice, either by prosecuting them in their own courts, or by extraditing them for trial elsewhere.

Craig Williamson, for example, by admitting his responsibility for blowing up the ANC offices in London, is liable for prosecution should he ever come within British jurisdiction.   Other perpetrators given amnesty may also find that should they travel abroad from South Africa that the status of their amnesty will be challenged. There is also the possibility that amnesties granted in South Africa could be considered null and void internationally.

The survivors who came before the TRC have made an enormous sacrifice on top of the suffering they have endured. Our experience with survivors indicates what most of them want justice, not just truth.  The amnesty process has removed their right to criminal or civil action in the name of national reconciliation. Amnesty without reparations is tantamount to impunity.  Is the South African government now seriously asking them to forego their right to reparation?

At this stage, government would probably answer, no.  President Mbeki has stated they are committed to victims.  At the same time, however there is little evidence of a clear long-term reparations strategy waiting to be unveiled. 

The more victims feel frustrated by the delay in meaningful reparations, the more likely they will be to seek alternative forms of redress; a situation the government should closely attend to if it wishes to avoid international embarrassment. 

Originally published by Brandon Hamber &  Bill Dishington, Sunday Independent, 25 June 2000

Brandon Hamber was a former Programme Manager at the Centre for the Study of Violence & Reconciliation in Johannesburg.

Bill Dishington is Information Director from Redress in London.

The Double-binds of Making Reparations

Hamber, B. (2000). Repairing the Irreparable: Dealing with the double-binds of making reparations for crimes of the past. Ethnicity and Health, 5(3/4), pp.215-226 [Download]

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).

Gun Control: Who is controlling who?

In a survey of 63 states South Africa is second only to Colombia in homicide rates involving a gun. Granted the gun is not the direct problem, but how it is used. It follows that with the frequency of gun-related violence one cannot but think that if there was tighter control, there would be less violence. Murder rates are slowly declining, but the number of people killed with guns is increasing. In 1998 over half of those murdered were killed with guns. The number of licenses issued for gun ownership has simultaneously increased. Nearly 200 000 new firearm licenses are issued each year.

Is this coincidental? Those supporting the gun lobby would say it is. They would argue that it was not legal firearms that were used to kill over 11 000 people last year. They would add they have a right to protect themselves in a dangerous society. In that regard, they are correct, but at the same time, we need to responsibly accept the consequences of incrementally arming ourselves.

In 1998 alone, 29 694 guns were reported stolen, an average of 80 guns a day. These undoubtedly contributed to predatory murder and armed robbery. A UN Commission shows that owning a gun in South Africa increases your chances of being a victim because criminals target those carrying guns. Further, the proliferation of illegal and legal firearms in South Africa is increasingly creating a culture, especially amongst the young that a gun is a normal and fashionable accessory. The paradox of gun ownership is that carrying a gun may make you feel safer, but it actually increases the chances of other types of victimisation of yourself and others.

To promote responsible gun ownership in South Africa a new Bill was passed by Cabinet last month. Intense opposition from the South African gun lobby then ensued. They feel they were not consulted and that the Bill, which stresses the tighter control of legal firearms and the screening and renewal of applicants for licenses, is untenable.

The issue of consultation is difficult to understand. The Bill is not law. It has been forwarded to Parliament where a full public consultation process and public hearings will take place early next year. Only then will the Bill become law.

The misguided complaints about insufficient consultation by the gun lobby have helped create the polemical impression that gun owners have been side-lined. The gun lobby has helped create a perception that the Bill advocates that it will be impossible to get a licensed gun. This is simply not true. The Bill is about gun control, not gun eradication. Those who wish to own guns for self-defence purposes will be able to do so. Special interest groups such as hunters and collectors will not be limited in the number of guns they can own.

Applicants will be screened before a gun license will be issued. They will have to pass a verbal competency test, provide a certificate that they have been trained to use the weapon, and sign an affidavit that they are not a substance abuser or have a history of violence. It seems strange that anyone would oppose this. We have to pass a test to drive a car, surely a test, and a minimal one at that, to use a deadly weapon should be welcomed. Surely any rational person would acknowledge the importance of having competent and stable gun users.

Renewal of licenses and screening is, according to the gun lobby, also too expensive. Again they have stretched the truth. Guns used by hunters will only have to be renewed every 10 years, and for self-defence users every five years. It is only licenses for especially deadly weapons such as semi-automatic arms that will have to be renewed every two years.

Guns have other costs that the gun lobby routinely fail to mention. Not only is there a human cost associated with the thousands of gun-related fatalities each year, but gun injuries cost the state a fortune. From a study conducted at Groote Schuur Hospital in 1993, it can be estimated that every 1000 patients treated for gunshot injury will cost about 30 million rand. One can also only speculate the cost involved in processing the 38 000 cases of negligent use of firearms the police had to deal with last year.

Granted the Bill focuses extensively on legal firearms. But licensing and regulation of guns has been shown to reduce the misuse of firearms across the board. In a study in Australia, it has been unequivocally shown that tighter gun laws reduce firearm-related crime.

Furthermore, the Bill addresses illegal weapons. It advocates mandatory 15 to 25-year sentences for illegal ownership and gives the police extensive powers to curb the proliferation of illegal weapons.

The Bill is hardly as draconian as the gun lobby would like us to believe. It simply advocates responsible usage and control that any thoughtful South African would support.

If you have nothing to hide, you have nothing to fear. Gun control exists in most democracies. It sends out the message that guns are not toys and they need to be treated with due caution. It is high time a culture of respect of the destructive capability of guns was developed. At the same time the Bill starts to address the problem of illegal weapons.

It seems as if many South African gun owners protest too much and believe it is their constitutional right to mislead the public. They assume that if they are responsible with their guns others will be. They presuppose that their weapon will not be stolen and misused. They fail to mention that a gun owner is four times more likely to have their gun stolen than to use it in self-defence. They also live in a false reality that a gun accident will not happen to them, but then again so do most victims of violence until it happens. Their need for a gun seems to be controlling them, rather than acknowledging that it is time we responsibly took control of guns.

Published by Brandon Hamber, Centre for the Study of Violence and Reconciliation, Johannesburg, 1 December 1999.

The Guts to Fight Back

Review of Anita Craig, 'To Live for a Future' by Martin Terre Blanche & Brandon Hamber

The baggage retrieval system at Heathrow

Anita Craig is worried about many things: The over use of unstructured interviews, misconceptions regarding the sex lives of homosexuals, people who say "in my experience the importance of this cannot be underestimated" (sic), the hairstyles of black female TV continuity announcers, and so forth. We all have similar gripe lists, and labour to convince others of the importance and deep coherence of what to them may seem arbitrary and bizarre. Craig uses a well worn strategy to achieve this. First, she invokes the master signifier of a future directed rationality set off against all the various forms of soppy emotionality, subjective gut feelings and unthought through prejudices that supposedly characterise "life in general in South Africa nowadays". Second, she declares herself exempt from the injunction against subjectivity, speaking in the register of authoritative but highly subjective self disclosure. Thus we are told again and again what Craig believes, finds attractive, agrees with, is enticed by, worries about, feels unsure about, thinks, considers to be a "fine analysis", intuits, and so on; and paradoxically these intuitions all centre around a conviction that such subjective assertions do not constitute proper grounds for knowledge. 

This contradiction is by no means unique to Craig's text, but is central to the dynamic constituting modernity itself. The grand narratives of modernity speak of progress through a strict adherence to standards of objective, rational enquiry, while at the same time appealing to the sovereign, subjective individual as the ultimate guarantor of what is meaningful and important (Parker, 1989). The tension between rational (objective evidence; future directedness; standards; universal principles) and irrational (subjective feelings; the present; arbitrary preferences; particular experiences) cannot be resolved from within modernity, and Craig's text would have functioned equally effectively in re inscribing modernist truths had she chosen to champion irrationality instead. 

Seen from a modernist universe where everything has to be positioned between the two poles of rationality or irrationality, objectivity or subjectivity, reason or schmaltz, postmodernity appears not as a (potential) route out of the impasse, but as emblematic of the touchy feely, schmaltzy side of the coin. In fairness, Craig does imply that her critique is aimed primarily against "thin" readings of postmodernity (that seek to equate it with extreme relativism, for example) although for the most part she nevertheless continues to operate as if such remarkably naive readings actually constituted an adequate understanding of postmodernity. Similarly, she tries to avoid presenting reason as purely based on universal principles, defining it in explicitly interactionist and pragmatic terms in places almost reminiscent of the democratic, workshoppy style of knowledge production she so vehemently attacks elsewhere. Such displays of moderation and even handedness does not, however, detract from the extent to which Craig's text is overwritten by the fundamental modernist duality displaying exactly the kind of "not knowing about knowledge" it accuses others of. 

Precious bodily fluids

Understanding Craig's text as structured by a certain formulaic logic of binary opposites does not explain why it sides with the "reasonable" side of the opposition or why it should populate the "unreasonable" side with such an idiosyncratic cast of characters. Journalists reporting on Verwoerd's grandson, people crying (apparently excessively or inappropriately) at Truth Commission hearings, action researchers, people exhibiting superficially pleasant dispositions, image consultants, people who object to sexist jokes, people who base their land claims on the fact that they were the first occupiers, and so on and so forth all are presented as contributing in one way or another to the rot. 

Although Craig claims allegiance to the new democratic order and makes liberal use of the first person plural, her take on what constitutes important issues is clearly at variance with that of the majority of South Africans. The majority would be more likely, for example, to see the massive unemployment rate (rather than say the current fad for motivational speakers), as well as the structural oppression of the past, as key manifestations of an underlying lack of rationality. 

What is silenced in Craig's critique is the extent to which historical processes have their own implicit reasonableness. South Africa is currently still in a period shaped by the politics of legitimacy (in which, for example, it is reasonable to base employment decisions in part on the logic of restorative racial justice), but may well be moving into an era shaped by the politics of delivery in which the electorate will shift from a position of "I vote for them because they are legitimate" to "I vote for them because they can build me a house and they will do it". There is of course no reason why Craig should be in step with such processes, but in wanting to play the role of prophet standing outside these historical contingencies she runs the risk that her text may cease to orient itself in relation to commonly recognised points of reference and be reduced instead to existing in a world of its own making. 

Craig's insistent warnings against the dangers of emotionality perhaps borders on the obsessional, and in places her text does threaten to deteriorate into a form of disassociated conspiracy theory. More disturbing, however, is the tendency for the text not to lose its connection with reality, but rather to align itself with the reactionary politics of (mainly white) privilege. This is a reading which Craig repeatedly seeks to dispel, but which is hard to avoid given the history of "race". Western conceptions of rationality have for many centuries depended on a distinction between reflective, abstract thinking supposedly characteristic of (white) civilization and the impulse driven, brutish behaviour thought to belong to (black) savages. Thus it is difficult to appeal to the concept of reason without at the same time invoking a centuries old discourse of racial inferiority. This is doubly so when a critique of social conditions as being unreasonable is launched in the years immediately after the installation of a predominantly black government. Craig's text is clearly not intended as racist and whether unintended racist overtones can be detected in it is obviously a matter of debate. However, it cannot but be read against a background where most privileged white South Africans constantly hear "warning bells" ringing and are convinced that decisive action is needed to prevent a slide into unreason and anarchy, while most black South Africans are filled with optimism about the future (Reality Check, 1999). 

Craig should be commended for raising uncomfortable questions and for refusing to be politically correct (how many other academics would be willing to mention "women, blacks, fools, even multiple murderers" in one breath?). Like the Democratic Party's Tony Leon during the 1999 elections, she clearly has "the guts to fight back", although (as with Tony Leon) some may be a little uncomfortable about who she perceives to be the enemy and what kind of future she may be taking us back to. 

Published by Martin Terre Blanche & Brandon Hamber in Psychology in Society (1999), 25, pp.60-62.

References

Parker, I (1989). The crisis in modern social psychology and how to end it. London: Routledge. 

Reality Check (1999). Survey of the South African Population. The Sunday Independent, 2 May 1999.