Building a Forward-Looking Agenda for Transitional Justice in South Africa
Hugo van der Merwe, Centre for the Study of Violence and Reconciliation
Past and Present Violence in South Africa
We are often confronted with the question: What is the relevance of transitional justice processes for the post-conflict reconstruction period? This is a question frequently asked in South Africa where there are competing agendas regarding dealing with the past versus focusing on new more immediate threats to peace and stability. In order to be relevant, conventional transitional justice processes have to be reconceptualised in various ways so that they become more forward looking in orientation.
Despite the fact that we had a Truth and Reconciliation Commission (TRC), or maybe because of it, there is an ongoing debate about possible pardons and amnesties for people who did not confess about their involvement in torture and murder and those who failed to make full or truthful disclosure to the TRC. Even those whom the TRC found to have been acting without a political motive are still negotiating with government for special political deals. Even more alarming is the fact that, of the hundreds of cases investigated by the TRC and forwarded to the National Prosecuting Authority for prosecution, we are likely to only see a handful of prosecutions.
Similarly, justice for victims has slipped from the public agenda. Reparations recommended by the TRC included substantial financial payments and the provision of access to basic government services such as health, education and legal assistance. The government took a long time to respond to these needs and then only reluctantly and very incompletely when pressured by victims and civil society organisations.
- The unresolved issues of justice for past human rights abuses are however inextricably linked to the present problems of crime we face in South Africa. Their solution requires a more integrated approach that calls for a more holistic restorative justice focus.
Criminal and Political Violence are Inextricably Linked in SA
There are many patterns of continuity that belies a simple criminal – political distinction. The legal system with all its laws and staff were deligitimised as instruments of oppression during apartheid, and defiance of the law and violence against police and courts became acceptable, even romanticized by the liberation movements. Criminality was not seen as itself immoral, and violent criminality targeting the state and those with wealth was often respected simply for its defiance of state power. Regular criminal activities also acquired a sense of legitimacy when targeted against rich whites or businesses that were seen as exploiting black workers and consumers. Purchasing stolen goods was thus not generally condemned.
Political structures also formed alliances with criminal structures in pursuit of their goals. Police recruited gangs to help assassinate political opponents or create artificial divisions within communities, while liberation structures recruited and formed relationships with criminals in order to access weapons and direct criminal activities against state-aligned bodies. In more extreme cases, certain liberation fighters carried out purely criminal activities such as bank robberies in order to finance their struggle for liberation.
Within this broader fluidity of political and criminal dynamics, there are also various flashpoints or social fault-lines that we have inherited from the past and which have simply transformed into new lines of division and bases for social violence. Examples of such flashpoints include the marginalization of ex-combatants, the exclusionary conceptualisation of ethnicity and nationhood, and police abuse of power.
The integration of soldiers and liberation fighters into a unified military and the reintegration of demobilised soldiers into society has not gone smoothly. Most struggled to make the transition to civilian life and still live on the economic and social margins. Without economic opportunity, many have found more lucrative avenues for using the military skills they have in criminal networks. Unresolved issues of trauma, militarised masculinity and disruption of family networks has spilled over into domestic violence and social problems such as drug addiction. Even those without previous exposure to criminal networks or involvement in personal violence have found peaceful civilian life very difficult to adapt to.
Race and racism, a fundamental social construct of apartheid has not disappeared. Racially motivated violence is still commonly reported, particularly in areas where black victims remain economically vulnerable and out of sight of public scrutiny. At the same time, a new form of ethnic identification has emerged that creates similar divisions between the privileged and those who seek a share of the opportunities provided by the new South Africa. Xenophobia, the dark side of the rainbow nationalism created by the transition has become increasingly violent and pervasive.
Torture and killings in custody were a hallmark of the apartheid era. While this is seen as a specific policy of apartheid era security forces, the continued use of torture and the high number of criminal suspects dying in custody even today remains a worrying indicator that certain policing strategies are not that easily eliminated.
This raises issues of marginalisation of certain sections of the community – resulting in both an inability of these sections to engage fully in a new social, economic and political contract, and in a stigmatisation of certain groups which makes them more vulnerable to abuse and political oppression. While apartheid embodied the all-encompassing marginalisation of a racially defined group, the new social order is also one that defined out-groups and limits opportunity for social and economic integration. This is again a recipe for violent social conflict.
Accompanying this structural exclusion of out-groups is also an underlying culture of violence. This culture is composed of a reduced sensitivity to violence (e.g. the high level of acceptance of corporal punishment and severely punitive justice processes), a romanticisation of violence as a symbol of struggle and manhood, and a lack of appropriate non-violence responses to conflict (both by government and by those who are marginalized).
Artificial Separation of Political and Criminal Legal Processes
In South Africa we have two parallel legal processes. For perpetrators and victims of political violence there was the TRC and a subsequent unofficial policy of non-prosecution. Regular criminal cases, on the other hand, are processed through the conventional legal system (inherited from the apartheid and colonial era).
Transitional justice has been conceptualized in such a way as to distinguish between criminal and political offences. In retrospectively identifying the cases that were political in nature and distinguishing these from regular criminal violence, it creates a convenient fiction that certain acts are purely motivated by political goals while others are simply selfish criminal acts. Establishing a transitional justice mechanism is by implication a decision that certain criminal acts of the past require particular attention. Drawing these boundaries can also be an attempt to bolster the fiction of a watershed transition to a post-conflict society. There are thus (the argument goes) offences committed before the transition (which can be either criminal or political) and offences committed after the transition, which are by definition criminal, as the political institutions are by definition legitimate, and therefore not capable of human right abuses and not subject to legitimate violent political protests.
This (sometimes) arbitrary distinction between political and criminal, and between pre- and post-transition violence and crime provide serious obstacles to our ability to come to grips with the truth underlying political dynamics in the past (their linkages to criminal activities), and the links between present criminal activities and past political dynamics. We thus over-simplify pre-transition politics and fail to come to grips with the political roots and socio-economic basis of “post-conflict” crime.
It is perhaps a pity that South Africa had to create a separate legal process to address political crimes rather than build space within the present legal system. The inherited legal system did however not have the popular legitimacy to carry out such a task. Moreover, the formalistic basis of the present legal system is not one that would have allowed for creative solutions to a complex justice challenge.
Limitations of the Retributive Justice Model
It is not only the South African legal system that struggles with its mandate to prevent violent crime. While it has often been argued that a retributive legal system (and its associated penal system) is very limited in its preventative capacity (Fletcher & Weinstein 2002), I would argue that this preventative goal is even more impossible in the context of violence that is caught in a criminal-political milieu.
Prosecutions of human rights abuses have limited deterrence capacity in a transitional justice context – particularly that of South Africa largely because we don’t quite know what we are trying to deter. While most South Africans are happy to support the slogan “never again”, the general sense seems to be “we wont let that happen to us again”. The condemnation of human rights abuses is linked to a particular political context, specific social divisions and specifically targeted out-groups.
We are likely to only see a handful of prosecutions in the next few years, despite the fact that the TRC forwarded hundreds of cases to the public prosecutor. The likely targets for prosecution are the most active assassins and the more brutal killers, particularly ones who do not presently enjoy political support, rather than those with the greatest responsibility for authorising abusive policies.
The TRC had some space to engage with a broader understanding of the issue of responsibility for past political violence. There are a range of community or institutional members implicated in support, acquiescence, and direct involvement in acts of abuse. These varied roles are not understood within a legal framework and judicial findings of guilt of individual perpetrators allow these indirect participants to deny their own responsibility. While trials are inherently limited in this regard, the TRC’s amnesty process was possibly even more focused on individual stigmatisation as “evil” perpetrators “confessed” and demonstrated on public television how they tortured detainees.
The TRC’s Moralistic Restorative Justice Agenda
The reconciliation mandate was mainly prioritised by those within the TRC with a religious background. Restorative justice as presented by the TRC was seized upon as a key component of the reconciliation agenda, and was thus ultimately appropriated by a moralistic agenda with little relevance to violence prevention.
The TRC’s restorative justice was one that was heavily flavoured by its religious orientation. Rather than relying on any expertise on restorative justice from the legal or social sciences, the TRC rather took on the language to describe its activities in pursuing confession, forgiveness and reparations. Dialogues between victims and perpetrators were generally individually oriented and guided by a moral discourse of contrition and forgiveness.
The concept of restorative justice does find resonance in South Africa, partially because of its similarities with traditional customary practices of dispute resolution and present cultural understanding of social interdependence, and partially because of the strong Christian focus on forgiveness in South Africa.
Victims have however experienced the TRC’s delivery of restorative justice as empty – holding out little truth, little contrition, little reparations, and little movement towards a restored relationship with the perpetrator.
A More Holistic Restorative Justice Agenda
A more holistic restorative justice process provides an avenue to untangle the web of political, personal and social dynamics that deal with past and future sources of violent conflict. While much of the restorative justice literature is focused on individual healing and personal responsibility, the challenge we face in South Africa is to deal with past human rights abuses in a social context that also recognises their present relevance.
As we look at rebuilding society, we face new challenges in relation to social violence. These challenges (be they political divisions, criminal violence, gender violence) have their roots in the way that our society has created social identities in the past, the tools we have developed for dealing with violence and the unresolved memories of trauma, exclusion and mistrust we inherit from that past. Sometimes this spectre of the past subtly shapes our sense of who we are and what our options are, but all too often it also directly intrudes through drawing on old enmities, repeating old but re-legitimated patterns of violence.
Building a new society requires transitional justice processes that don’t simply pigeonhole pre- and pos-transition conflicts in neat packages to be set aside or adjudicated. The continuities of conflict and violence require an approach that engages with the causes as well as the complex manifestations of our history of social dislocation and disruption.