JARED DE CANHA

2016 is a significant year in the history of South Africa’s constitutional democracy as it commemorates 20 years since the inception of the Truth and Reconciliation Commission (TRC) in post-apartheid South Africa. The inception of the TRC is very closely linked to our celebration of Freedom Day. While that first democratic election ushered in and helped consolidate our establishment of a democracy, it did not instantly resolve the disparities which had previously separated South Africans.

In this context, the notion of reconciliation was argued to be essential for the survival of the new South Africa and was enshrined in legislation which mandated the TRC.

The unique model and composition of the TRC

While South Africa’s TRC model is similar to models used in Latin American countries such as Chile, our model is unique in that there was no previous model that was used as a tool to facilitate national reconciliation in a country that was able to undergo radical political change without a civil war. The commission was based on the notion of restorative justice, and thus rejected the retributive approach used in previous instances, such as the Nuremberg Trials. It was also not a formal court of law, and so while the TRC did grant amnesty to those who provided full disclosure of politically-motivated crimes committed between 1 March 1960 and 6 December 1993, it could not prosecute people directly or hand down judgements. It also did not grant blanket amnesty, as seen in some South American models.

The TRC was composed of three separate committees and was chaired by Archbishop Emeritus Desmond Tutu. The Human Rights Violation Committee was responsible for hearing from an estimated 21 300 victims who gave testimony dealing with approximately 38 000 instances of gross human rights violations. This committee, which Tutu was intimately involved in, was often referred to as the one that dealt with the “little people” because of the way it engaged with ordinary South Africans who shared their stories. The Reparations Committee attempted to help support those who had suffered loss by providing monetary compensation on a lump-sum basis. The Amnesty Committee, which consisted of two judges per panel, considered amnesty applications and decided if applicants could be granted amnesty from civil and criminal prosecution based on their testimony.

Why the need for a truth commission?

In his book The Strange Alchemy of Life and Law, former Constitutional Court Justice Albie Sachs explains that the TRC linked the notions of truth and amnesty in order to persuade perpetrators under the apartheid regime to come forward and fully disclose their involvement in order to pursue amnesty. This was because the TRC placed great importance on the notion of truth, which they viewed as the key to beginning the process of national reconciliation and start a dialogue between all South Africans.

Others, such as African philosopher and Unisa philosophy professor Prof. Mogobe Ramose, have argued that the TRC detrimentally sacrificed the notion of justice in their eagerness to pursue reconciliation and a somewhat diminished common truth.

Where is South Africa 20 years later?

An understanding of the TRC is vital if we are to address the disparities that still exist among us today, such as the disparities that have been made evident in current affairs this past year.

In an interview with Joel Modiri, a lecturer in the Department of Jurisprudence at UP, Modiri acknowledged the TRC was an “important attempt to reckon with the tragic past of colonial apartheid and achieving the re-harmonisation of a deeply divided society”. However, when asked his view on whether the TRC was still relevant today in light of the racial tension experienced this year on South African social media, as well as the numerous nationwide student protests that occurred in 2015 and 2016, Modiri agreed that our current circumstances had strong links to the TRC. Modiri explained: “The reason why we continue to experience an unsettled and unequal South Africa is the complete negation of the question of historical justice and serious socio-economic and cultural reorganisation of society.”

This link between the recent turbulence we have experienced as a nation and the TRC, according to Modiri, is possibly explained when one considers that the TRC absolved the historical and political responsibility of the beneficiaries of apartheid while victims of apartheid continue to face “serious impairment of their rights and citizenship, socio-economic disadvantage, poverty and marginalisation” in our current dispensation. As a result, Modiri argues that our “unresolved past and colonial-apartheid power relations still define and determine the socio-political and economic landscape or context of South Africa”.

Prof. Karin van Marle of the Department of Jurisprudence at UP said “my big concern about the TRC was the lack of reperations”, but added, “I’m not sure if there was something else [other than the TRC] that we could have had at the time.” She continued by saying that that the TRC had played “a limited role”, and that “we can’t reconcile through a legislative act.”

Illustration: Asiphe Dlulane

Website | view posts