PART II: UNEQUAL, TRANSITIONAL CONTEXT
2. Introduction: ‘The whole is more than the sum of its parts’
2.4 In-country, long-term Peacebuilding
2.4.3 Peacebuilding and Transitional Justice
South Africa provides an interesting opportunity to examine the contribution of restorative justice to peacebuilding, as restorative justice principles and practices permeated the nationally and internationally celebrated (and criticised) Truth and Reconciliation Commission. South Africa’s Promotion of National Unity and
Reconciliation Act, No 34 of 1995 placed the TRC squarely within the process of nation building.
Chapter 15 of the interim Constitution of the Republic of South Africa Act 200 of 1993 refers to ‘ubuntu’, ‘understanding’ and ‘reparation’ as opposed to ‘vengeance’,
‘retaliation’ and ‘victimisation’ with reference to national unity. An extract from the constitution reads:
The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of
humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.
These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation. (S A Interim Constitution, 1993).
Ubuntu has been referred to as ‘the nexus between peacebuilding and restorative justice’
(Muruthi, 2009:150). Zehr argues that restorative justice provides a framework that is
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‘consistent with the values and principles of conflict transformation’ and that it ‘might be viewed as a peacebuilding or conflict transformation approach to justice’ (2004:308).
While truth commissions are intended to deal with historical trauma, it does so in a limited way and favours the state level over the individual level. Truth commissions are temporal institutions, and in the case of South Africa, its mandate was limited to a short historic period and dealt only with gross violations of human rights. It is interesting to note that the period from the 1960s to the 1990s is the period of armed conflict by liberation movements. This indicates that the TRC’s mandate had more to do with negative peace (a focus on combat and its consequences) than positive peace (a focus on cultural-structural-direct violence). Individual victims, according to the narrow definition of ‘victim’ had a role to play in helping the commission get ‘as complete a picture as is possible’ as stated by Archbishop Tutu. After several years it was decided that victims would be paid an amount of R30 000.00 (President’s Fund Annual Report (2011/12:6). In the main, most victims are left to their own devices. The politically more prominent victims become participants in research projects, or are featured in one off
documentaries, whereafter they are forgotten. Many people join Khulumani, ‘a social movement for the Human Rights of survivors of Apartheid-era gross rights violations’
who, amongst other actions, have brought a lawsuit against ‘23 foreign banks and multinational corporations’. ‘Khulumani filed the suit in November 2002 in a District Court of New York on the basis that they have aided and abetted the Apartheid government in enabling the said government to commit acts of gross human rights violations’. This action was brought under the Alien Tort Statute and the Torture Victim Protection Act. The movement has an estimated membership in excess of 50 000 survivors. A t-shirt worn by a survivor on their website summarises their stance ‘No reconciliation without truth, reparation and redress’ (web reference 7).
Despite the rhetoric of restorative justice being victim centred, this is not the case in South Africa. The logic of compromise and pragmatism that is required for a peace pact to hold at the national level, inevitably leads to unresolved issues on the part of most primary and secondary victims, particularly when the state does not prioritise radical equality. In South Africa, the master narrative within which the elite pact was framed, is that a civil war was averted and that a miracle has happened. In reality, the civil war that
54 was averted was one between black and white South Africans. Political violence during the early 1990s – (unofficially regarded as civil war by many South Africans and dubbed
‘black on black violence’ in the media) - claimed the lives of thousands of mainly black South Africans. The TRC later found that a ‘third force’ was involved in stoking the so- called ‘black-on-black violence’. Added to this, the combination of cultural, structural and direct violence killed millions of black lives since the 1600s. Academic definitions of what constitutes ‘war, ‘just war’, ‘civil war’, ‘political violence’ and ‘crime’ have helped to render black lives insignificant, as the power to define does not rest with those who are victimised. The ‘miracle nation’ and ‘rainbow people of God’ metaphors similarly serve to silence ordinary South Africans who have been defined out of the notion of ‘victims of gross violations of Human Rights’. I argue that as a result of this political pragmatism, what can be described as a conspiracy of silence about the psychological, spiritual, economic and social effects of trans-historical inequality has developed in South Africa.
There is a difference between developing a victim mentality and acknowledging
victimisation. Those who choose to bury the past with political correctness, conflate the two and in the process add to the culture of denial in South Africa. However growing inequality and its violent effects in the era of market democracy and conspicuous consumption, have caused the veneer of political correctness to crack. People are taking to the streets in protest, and the state is responding with violence. The criminal justice system is left to deal with what lies in the shadow of the master narrative of the ‘miracle nation’.
In a documentary (that is framed by the death of Amy Biehl - the young American woman who was stabbed to death in Guguletu during 1993)6 - a truth commissioner recounts how the mothers of the ‘Guguletu seven’ told her that after police ambushed and killed their seven sons, no one came to speak to them.7 At a conference held in 2000
6 ‘Long Night’s Journey into Day’ A documentary about four truth commission sessions is framed through the lens of Amy Biehl’s unfortunate death. Seen through an intersectional framework, on the one hand it is a gut-wrenching documentary of human suffering. On the other hand, the matrix of domination is clear. A white American life provides an angle to the black South African story of oppression, brutalisation and marginalisation. Even in death the matrix of domination functions to assign everyone their ‘place’.
7 The Guguletu seven were young men who, according to testimony at the TRC, were infiltrated, trained and armed by the security police, led into a trap, shot to death and their dead bodies were televised. Parents were not immediately advised of their death and saw their bodies being pulled around with ropes on
55 where the ‘unfinished business’ of the truth commission was discussed, another
commissioner confessed: ‘I am ashamed to say that we did not have the capacity to go back to individual victims and report on the progress of their cases.’ She also admits that the TRC failed to engage ‘those who benefitted from the previous government’ and suggests that the ‘beneficiaries of apartheid have hardly had to change their lifestyles at all … and said they did not know’ about the horrible deeds that perpetrators confessed to.
She also fingers business, and ‘those governments with their multinationals and banks who made millions out of South Africa’ and admits that the TRC ‘did not look properly at these groups and that [it]… should do so’. Unfortunately, by the time its work ended, the TRC did not get around to ‘doing so’.
While the intentions behind a truth and reconciliation commission will always be
contested in a divided society, the intention was, according to Archbishop Desmond Tutu, to ‘start’ a process of reconciliation. ‘The state’ and ‘the nation’ take precedence over individual and collective victims.
From Volkan’s (2006:1) perspective the TRC facilitated large group mourning without which, he suggests, the ‘derivatives of aggression that have been turned inward … might have caused unimaginable tragedies without the work of the Truth and Reconciliation Commission’. Inability to mourn, according to him, can initiate new tragic events even centuries after the original traumatizing period is over. In this conception, the TRC stopped the derivatives of aggression from being turned against the external adversary, while helping with large group mourning.
While the TRC’s contribution remains in dispute, many people found answers to questions about their disappeared relatives, bodies were exhumed, a token form of reparation was made, and amnesty was given and refused on merit. However, the TRC’s limited mandate caused it not to acknowledge or deal with the continuity of colonial and apartheid trauma in the lives of ordinary people within the society, particularly those who were systematically dispossessed and dehumanised. Nor did it deal appropriately with
television. The truth commissioner recounts that she enquired if anyone even a church minister came to see the mothers after the political funeral; they replied that no-one came to see them until they were contacted to give testimony at the TRC.
56 naming - even for the purposes of analysis and future peacebuilding action - the unearned privileges by beneficiaries of apartheid (Mamdani, 1996:1; and Carrier (1997:20), cited in Henkeman, 1998:29), that arguably contribute to the wide inequality gap and its
consequences in the present. However, nation building through racial reconciliation and societal psychological healing were held up as the highest priorities – which reveal the political-symbolic as opposed to the historical-substantive agenda of the TRC. This means that continuity of the work that the TRC has begun, and inclusion of historical trauma as a factor in long-term peacebuilding, must be taken up in various ways in the society by people who are trained to recognise its manifestations.
Thus, for the purpose of this thesis, the concept long-term peacebuilding is understood to be a trans-temporal, multi-level, cross-cutting, intersectional process as illustrated in figures 1.1, 4.2 and 4.3. Long-term peacebuilding as a concept, subsumes the terms nation building, post-conflict reconstruction, post conflict reconciliation, transition, and transformation, unless specific reference to individual terms are required in the text. The overall goal of long-term peacebuilding is assumed to be a comprehensive peace where the minimum objective is that the basic needs of all people within the country are met as envisaged in South Africa’s Constitution, 1996.
Specifically with regard to the intersection of peacebuilding and restorative justice, it is assumed that the link between ascribed and nested intergenerational inequality and crime/social harms; and intergenerational trauma and its consequences, is understood as part of overall peacebuilding. Where this is not the case, it is assumed that this aspect should to be taken into account by the state and particularly the Criminal justice system when people fall foul of the law, before it can be assumed that everyone enjoys equality before the law and equal access to healing and justice.