THE TRUTH AND RECONCILIATION COMMISSION: POPULAR JUSTICE AND WITCH-HUNTING

discussion paper #2


1. I have been reviewing written and oral submissions that were made to the Standing Committee on Justice on the draft Promulgation of National Unity and Reconciliation Bill in the beginning of 1995. The majority of them touch on specific legal points (legal representation, appointment of commissioners, in camera hearings, etc.) but a few have more to do with the justifications for (or against) the institution of a truth commission, its ultimate goals, dangers and I would like to concentrate on those for the moment.

There are memoirs submitted by organizations as diverse as Lawyers for Human Rights (LHR) and the Black Sash, but also from the AWB, the Freedom Front (FF) and the Inkatha Freedom Party (IFP). At first sight, this is like accepting submissions from the Hell's Angels on a law on organized crime. Of course this eerie assembly of democratically responsible groups and extremist and violent ones is encouraged in the name of diversity and representativeness (at some point someone asks a Black Sash representative about the size of its membership—2 000—and someone points out that it is twice the number of IFP members!). The idea of course is that the memoirs presented and the oral submissions that were requested are to offer a sample of what the "public" thinks. I reserve for later the very difficult question of the nature of public involvement in the TRC's final form. Suffice it to say right now that I am not interested in critiquing the democratic process in general or in its specific South African form, but rather in the extent that apparent public representativeness was used to give weight to one or another submission, to determine the width of each color strip of the political "rainbow nation," and more importantly to attempt to include these groups in the TRC project regardless of their actual input.

If one were to ignore for an instant the paradox of an anti-democratic organization participating in democracy-shaping talks, there still the incongruity of having suspected/accused criminals help draft criminal procedure and sanctions before "trial." Not that these groups' submissions was followed in any way, and notwithstanding the extra gloss of reasonableness it gave to the more mainstream National Party's participation by sheer comparison, it shows the Standing Committee on Justice's willingness to bend over backwards to appear even-handed, in order to support a discourse of wide participation and enthusiasm for the TRC.

Before I start with a brief analysis of the submissions, I would like to explore a little further the conventional division of political groups, movements or ideas as being on the "left" (liberal) or on the "right" (conservative) because they have their particular flavor in South Africa. Political scientists especially but also sociologists have for a long time now understood that the categories are simplistic and rarely helpful in trying to explain behavior or attitudes in general. To put it simply, one's attitudes about one thing do not dictate how one will feel about the next. There are more than two ways to make the world "work" logically. In countries that have seen a radical change in government this distinction often borders on the comical, with for instance Russia's Communist Party now being described as "conservative" or "right-wing." In South Africa the confusion often borders the absurd, mostly because of the many (self- or externally defined) cultures present. For example, many "traditional" African justice models are quite radically "new" in Western terms; so who is being "conservative?" But my point is somewhat different. I am not particularly interested in whether this or that organization is leftist or not, but rather in the reasons and consequences of such a label and especially in respect to the work of the Truth Commission.

For instance, many otherwise liberal institutions, such as "Lawyers for Human Rights" are quite miffed by the prospect of amnesty (which they refer to as "impunity"):

It is an irony that one of our prominent judges, Judge Goldstone, is present in The Hague preparing prosecutions against individuals who committed human rights violations in Bosnia and Rwanda, yet at the same time we are preparing to grant impunity for similar human rights violations (oral representation by Mr. Motala, LHR, 14 Feb. 1995).

According to LHR, victims have a right to see perpetrators prosecuted, and if there must be amnesty because of political necessity then it should only come after conventional criminal trials.

In the debate about amnesty and the specific provisions of the then bill, the "right" is the old regime and apartheid's ex-supporters, and the "left" represents those who fought apartheid and now find themselves in influential or power positions. Of course this creates in the course of the debate paradoxical conclusions and extremely difficult positions. For example, the right finds it expedient for rhetorical reasons to blame the supposedly high crime rate on the violent actions of anti-apartheid forces, and typically concludes with a get-tough-on-crime stance, while insisting that in the matters of criminal actions done in the name of the regime things should basically be immediately and unconditionally forgiven and forgotten. Those who used to be convinced of white cultural superiority are now the strongest proponents of the African concept of ubuntu (collective humanity, mostly understood as forgiveness and togetherness). On the other hand the left argues for the necessity of bringing human rights violators to justice, meaning punishment, while stressing the need for reconciliation and "healing." The very name of "Amnesty International" acquires a different ring in the debate; the organization submits that "Amnesties are generally incompatible with the duty of states to investigate such acts" (written submission, p. 3). Of course their explanation is that "amnesty" applies to "political crimes", and they object to the notion that "politically motivated crimes" are such political crimes, especially those specifically mentioned in international conventional or declarative law (torture, extrajudicial executions, enforced disappearances and apartheid itself, which was declared a crime against humanity by the UN). Accordingly, "amnesty" is what Nelson Mandela should have got after his 1963 trial for treason, while the Coetzees and the Derby-Lewises should be punished. However this distinction is clearly not obvious to everyone.

In the end, the "right" in this debate is essentially the "white privilege" lobby (obviously even if one wanted to, one cannot realistically lobby for apartheid anymore) and the "left" is the ex-anti-apartheid/now-pro-redistribution forces, with a lot of room in between. Beyond that, both groups' views about crime, punishment, poverty, values, etc. are more complex than the dual model can account for, unless the positions could be redrawn for each issue. Even then I am not certain how this categorization would be particularly helpful. Of course, because the right comprises the military/security forces/police lobbies, there is a consistent law-and-order undertone, but this is not as clearly located as one might expect (for instance, "left" Justice Minister Omar lately has toughened bail laws, criminal sanctions, and is opposing equal-rights legislation for homosexuals).

2. There is in fact no comparison between the acts Mandela was accused of and those of apartheid killers. But when members of the Justice Committee systematically question each speaker about whether they think that "atrocities" committed by uMkhonto weSizwe (MK) or in the ANC Quatro camp should not be investigated, or if "necklacing" is as condemnable as torture, or whether convicted terrorist Robert McBride should be allowed in government, the discourse is not only that violence is wrong, but also—primarily—that all sides were wrong and therefore that an unbiased commission should distribute blame equally between the parties (or better yet, refrain from blaming anyone). An interesting transcript of a separate public debate between Constand Viljoen, Ronnie Kasrils and University of Cape Town professor André du Toit about the concept of "just war" is illuminating. Of course, Viljoen avoids simply accusing the ANC/MK of being the wrong party in the conflict. His argumentation is that "both sides" were wrong because they used violence.

Now the point of how to get to reconciliation that we must stop, as I said, pondering over the past, even in the arguments that we had, and I differ with my opponent, Mr Kasrils, I did not try to justify the one side against the other side. What I tried to do is to use the both sides, I tried to be objective to both sides and tried to show how this would eventually lead to reconciliation (Viljoen's answer to a question, transcript of the discussion).

By putting the accent on the methods "both" sides used (ignoring for now the astronomical contrast in scale) he makes two conclusions, equally acceptable for him, possible: either 1) there were a few bad apples that can be uncovered, from both sides, or 2) no-one is blameless therefore no-one is (specifically) to blame (incidentally this is one of the Nuremberg defenses). The South African Police written submission states:

the NP, the ANC and other liberation and political organizations, such as the PAC and Inkatha must accept collective responsibility for actions committed by the State or such organizations through individuals with a political objective, and must also accept collective responsibility for actions committed to disguise an act with a clear political objective.

Viljoen for his part offers the similar explanation that 1) the police/military forces honestly believed that they were fighting world communism; 2) that MK's actions made the use of more extreme methods by the police necessary. Interestingly he does not mention the possibility that the police (as himself) also honestly believed that it was a good idea to fight to maintain white supremacy in South(ern) Africa (to this day, more than 40% of white police officers are current or ex-members of the AWB). The reason of course is that he thinks—no doubt rightly—that of the two, the excuse of having mistakenly fought communism is more acceptable today. However, while there is more than one type of political regime that is not communist, there is only one that is institutionally white-supremacist. That is the simple logical consequence of comparing a negative definition with a positive one. But in that sense having mistakenly fought for white supremacy would be a better excuse than the "communist threat" one, since the latter has nothing to do with apartheid; but one then would have to admit having been deceived by one's superiors, the government, the dominant political climate and so on, which I am afraid quite a few are still not prepared to do. Even F.W. de Klerk still argues that the "separate development" scheme was a technical rather than a moral failure.

From Viljoen and van der Merwe's point of view, not only does communism-fighting sound better now (in the open) but it is more compatible with the "bad apple" theory because the source of the action (anti-communism) is more palatable, more "idealistic", i.e. the ideal was right, but some went too far. In other words, there is moral guilt neither at the operational level because the police were pushed by MK's actions nor at the intellectual level because ultimately only South Africans were left to stand up against Reagan's "evil empire" in Africa, on some kind of international-level self-assigned mission. And these are moderate "rightists", members of the new South Africa's parliament. Again, this sounds positively heroic if one forgets that South Africa's suggested response to communism was apartheid, almost universally condemned and causing South Africa to be more isolated than the communist block countries. Furthermore, one must bear in mind that "communism" in South Africa was "any doctrine or scheme (... aiming at) any political, industrial, social or economic change within the Union" (Suppression of Communism Act, emphasis is mine). "Communism," as in many other places in the world, was simply the universal stamp of evil to be applied to any unwanted activity.

On the other hand, this inescapable fact that the security forces were fighting for apartheid also destroys the bad apple theory because it is then the whole tree that is rooted in immorality; this is why it is consistently swept under the carpet of the (very) new democracy, lost in the legal details of the draft, on how to insure that the commission will be free of bias, on whether or not to provide legal representation, etc. The struggle on both sides becomes then only a power struggle, not a oppression/resistance one; thus any moral stance is purely relative, and even the IFP can speak of "multifaceted truths" (written submission, p. 1). The process of formation of the commission is then the continuation of this power struggle "by other means", as the work of the commission itself is presented to be.

The way in which this discourse is created and used is important because it largely determines the shape of major sections of the Truth Commission legislation; evidently, it also entirely recasts the debate about even-handedness. As Viljoen said in his oral submission: "What will satisfy the constituency of the ANC will certainly have the opposite effect on my constituency." Also: "We need to consider reconciliation between who. Not between a number of perpetrators and a number of victims, but reconciliation between two major groups. The Afrikaner people and the black people (...)." It is then a mistake to speak of moral responsibility, victims, perpetrators, as both "sides" simply fought for survival or power or supremacy etc. The South African Police submission thus begins: "in the historical struggle for power between the National Party and the African National Congress..." The TRC version of even-handedness has become "equal party-political or group representation" instead of neutrality. It has been co-opted by the politicized concept of "national" reconciliation.

3. A witch-hunt, following the old Salem tradition, implies that one is hunting for something that does not exist: witches in New England, anti-American communists before McCarthy, etc. Reviewing the submissions on the draft bill, the reader is presented with this metaphor repeatedly, from all parties to the discussion. Other "cautionary tales" are also evoked, the two other main ones being the Nuremberg trials and the Spanish Inquisition. Like witches, human rights violators, victims, beneficiaries and the dispossessed of apartheid, indeed apartheid itself, are figments of over-zealous prosecutors' imaginations. If we may forget for an instant how this suggestion can be truly insulting to those who were at the receiving end of apartheid, it would be helpful to explore the comparisons a little further. It is important because the TRC was modeled primarily by political and military imagery rather than logic or experience.

More importantly, all these images have one thing in common: they never had a "stopping point" and could go on forever. Undoubtedly the question of how far to go down the pyramid of authority from the top to the wide base of ordinary citizens who's only contribution to apartheid was to consistently vote for the NP for forty-five years is far from simple. A large contingent of representations, accordingly, are particularly concerned about the scope of the commission to be. Prof. Anthony Holiday, himself once a political prisoner, suggests that at the root of this concern lies a deep racist distrust of the capacity/willingness of non-whites (i.e. the ANC, even though it has been a non-racial party for more than fifty years) to abide by the rule of law. The concern or the semi-explicit conclusion is that without protection from the "right", the white population would fall to the mercy of the unpredictable black government. And the consequence is that whites feel they cannot afford to be overly concerned with the moral standing of the candidates they are prepared to vote for.

The security forces are of course particularly concerned with the absence of a clear and shallow stopping point: Constand Viljoen, for instance, suggests that the commission should limit itself to hearing the testimonies of leaders, including himself, who would come forward and admit their responsibility. The SAP's written brief states that 1) the then "Government of National Unity" (GNU) should acknowledge "principal and collective responsibility"; 2) accept collective liability for individual actions; 3) that leaders should give "full public disclosure (....) of all means employed towards the furtherance of political aims"; 4) acknowledge the fact that individuals were "forced to operate under a system of implied authority" because of ambivalent orders. They back these recommendations with a thinly veiled threat: ignoring the recommendations,

the situation will most probably lead to the disclosure of documents and evidence relating to the direct or implied authority of Government or political role players instead of a proper process aimed at the exposure of the truth.

I am not entirely sure why "disclosure" of "documents and evidence" could occur instead of the truth being exposed; I thought that was the same thing. It is rather clear, however, that the message is that the police has politically damaging information that it is willing to publicize should things not go their way.

The specter of Stalin-era political trials, and of course the Senate Committee on Un-American Activities is enough, without further explanation, to symbolize the ultimately unclear concerns of some submissions. This is linked to the already mentioned question of bias or objectivity of the commissioners to be: the question seems to be whether to appoint members of different political affiliations or people who have demonstrated political neutrality in the past: precisely the same problem mentioned in the previous section. This seems straightforward enough, and arguments were made for both models. However, in fact that is not the concern at all: the real sticking point ties in with the "just war" debate, the need to protect the image of shared blame and shared forgiveness. To appoint people who have no opinion on the subject would be impossible (and it is questionable, to say the least, that such individuals would be competent judges of amnesty applications); at the same time, most of those who are not potential amnesty applicants are likely to feel that apartheid was wrong (at least, as I have mentioned, "methodologically" wrong), and this is interpreted as bias, because as we have seen, according to the security forces in "reality" it was simply a power struggle. Of course members of the liberation forces who committed crimes will also need to apply for amnesty—or be prosecuted—and the ANC has from the start vowed to cooperate fully with the Commission, and it has taken a few direct hits over the Quatro camp, for instance; but no-one is more aware of the extreme disproportion of wrongs committed by the state than the security forces themselves (this stands out even in a morally neutral "power struggle" universe), and that even godly objectivity is likely to hurt one party more than the other. The witch-hunt argument was essentially a way to rationalize the de-clawing of the future TRC.