Between vengeance and forgiveness

13 June 2014 08:10 pm - 0 - {{hitsCtrl.values.hits}}

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In his first public comments on his role in Sri Lanka since being appointed as President Jacob Zuma’s special envoy to Sri Lanka, Cyril Ramaphosa has said that South Africa’s post-Apartheid success in building a new nation that embraced democracy and human rights had endeared the country to many others around the world, including Sri Lanka. “Our country used to be the pariah of the world, and today we are the darling of the world... Some of those that have come to respect us greatly are countries like Sri Lanka,” he said in a speech recently at Mount Edgecombe, KwaZulu Natal in South Africa. He went further to say, “We are truly honoured to be chosen among many countries to go and make this type of contribution to the people of Sri Lanka,” he said. “We have a wonderful story to tell, and it is this wonderful story that the Sri Lankans see.”

In his first public comments on his role in Sri Lanka since being appointed as President Jacob Zuma’s special envoy to Sri Lanka, Cyril Ramaphosa has said that South Africa’s post-Apartheid success in building a new nation that embraced democracy and human rights had endeared the country to many others around the world, including Sri Lanka. “Our country used to be the pariah of the world, and today we are the darling of the world... Some of those that have come to respect us greatly are countries like Sri Lanka,” he said in a speech recently at Mount Edgecombe, KwaZulu Natal in South Africa. He went further to say, “We are truly honoured to be chosen among many countries to go and make this type of contribution to the people of Sri Lanka,” he said. “We have a wonderful story to tell, and it is this wonderful story that the Sri Lankans see.”

Ramaphosa was clear in noting the limits of South Africa’s involvement, “As South Africans we do not impose any solution on anyone around the world. All we ever do is to share our own experience and tell them how, through negotiation, through compromise - through giving and taking we were able to defeat the monster of apartheid.”

It has been reported that President Zuma’s special envoy Cyril Ramaphosa is due in Colombo later this month to continue the process. Since the victory of the African National Congress (ANC) at the recently concluded elections in South Africa, Ramaphosa has been given a higher position in government by President Zuma. Previously the Deputy President of the ANC, Ramaphosa in the last week was appointed as Deputy President of South Africa. Notably, Ramaphosa headed the ANC delegation that negotiated the end of apartheid with the white government in 1991.

The South African reconciliation process was successful because all parties participated, moral leadership was given by Nelson Mandela, victims were permitted to fully express their experiences and all evidences given were in public and not behind closed doors

The friendly and productive relationship between the two countries has been apparent. President Mahinda Rajapaksa in a personal congratulatory message to President Jacob Zuma on the decisive victory secured by the ruling African National Congress (ANC) at the recently concluded South African general elections said, “The ANC’s victory is an unambiguous endorsement of not only your personal popularity but also that of the enduring strength of the party of Nelson Mandela, Oliver Thambo and other great heroes of the anti-apartheid movement. The ANC’s fifth consecutive victory at the national elections is a well-deserved tribute to the Madiba, whose contributions to the emergence of a non-racist and truly democratic South Africa remain legendary.”

Reinforcing the strong relations between the two countries, President Rajapaksa in his message said, “I am confident that relations between Sri Lanka and South Africa, characterised as they are by deep-seated friendship, abiding trust and goodwill, will be further consolidated and enhanced in the years ahead. I look forward to continuing to work with you to strengthen the cordial and mutually beneficial relations between Sri Lanka and South Africa, under your new Government.”

South Africa – Sri Lanka relations were picked up on the reconciliation radar when a suggestion for a South African-style Truth and Reconciliation Commission (SA -TRC) was intimated as an option for post-war Sri Lanka. Since then, there have been bilateral overtures and offers of assistance being extended by the South African Government to the Government of Sri Lanka in the event the latter decided to embark upon setting up its own. During his visit to Sri Lanka for the Commonwealth Heads of Government Meeting in November 2013, President Jacob Zuma reassured South Africa’s assistance in that regard. There have been exposure visits and study tours to South Africa together with dialogue programmes with experts and relevant stakeholder participation on both sides. Among the high-level officials and dignitaries who have visited Sri Lanka is the internationally reputed scholar, Dr Albert or ‘Albie’ Louis Sachs, who was appointed to the Constitutional Court of South Africa by Nelson Mandela. Dr. Sachs who has passed several enlightened and ground-breaking decisions in Court said while in Sri Lanka, “The South African reconciliation process was successful because all parties participated, moral leadership was given by Nelson Mandela, victims were permitted to fully express their experiences and all evidence given were in public and not behind closed doors.” In addition to being a Judge in the Constitutional Court of South Africa, Albie Sachs was the chief architect of the post-apartheid constitution of South Africa.

A distinction between ‘success’ and ‘impact’ must be made. While success can be equated to fulfillment of commission’s mandate and public issuance of report, impact requires that the exercise and experience resulted in substantive change in the society

What would be useful is an evaluation and deeper understanding of the SA – TRC and its applicability and adaptability, if any, to other contexts. Several questions become relevant for a potential discussion in this regard. Some questions are simple, others complex: How successful was the SA – TRC? What should be the criteria to judge its success and indeed the success of any mechanism of reconciliation? Was the SA – TRC responsible for achieving national reconciliation in South Africa? Did it achieve individual reconciliation in South Africa?

What was its legacy for Africa as a whole? How beneficial, dangerous or inconsequential is the aspect of truth for the process of reconciliation? To what extent can the successes of the SA – TRC be attributed to personalities and visionaries of a reconciliation mechanism, such as Nelson Mandela and Archbishop Desmond Tutu in the case of the SA – TRC?

Was the resilience of the South African people evident as an outcome of the process? Was the readiness of the South African nation a contributor to the extent of reconciliation achieved? Are truth and justice axioms to reconciliation? Is restorative justice more suited for collectivist societies and retributive justice more suited for individualist societies or ought both notion to be universal to claim legitimacy?

The South African TRC was created by the first democratically elected Parliament of South Africa in 1995 under the Chairmanship of Archbishop Desmond Tutu. Tutu who was at the apex of the development of the TRC in South Africa stated boldly that “Retributive Justice is largely Western. The African understanding is far more restorative-not so much to punish as to redress or restore a balance that has been knocked askew. The justice we hope for is restorative of the dignity of the people.”

Despite the SA – TRC not being the first TRC to be created, it had greater visibility than its counterparts because its proceedings were held in public, televised and broadcast on the radio. This was a key feature that aimed at transparency of the process and distinguished from TRCs which conducted enquiries behind closed doors. Further enhancement was ofcourse provided internationally by its Chairman, Archbishop Desmond Tutu and endorsement of President Mandela. The constituting legislation which provided the legality for the SA – TRC was the Promotion of National Unity and Reconciliation Act No.34 of 1995. S 3 (1) of the Act had as its stated fundamental objective was to ‘promote national unity and reconciliation in a spirit of understanding which transcended the conflicts and divisions of the past.’

The Act listed specific ways in which TRC was to promote national unity and reconciliation: Key features of the SA – TRC were that it required consideration of victims’ perspectives and motives of perpetrators, it had to conduct investigations and hold hearings in order to establish the complete picture of the contextual realities.

A controversial aspect of the process was the granting of amnesties, where S3 (1) (b) of the Act required that TRC to ‘facilitate(ing) the grant of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with a political objective.’ Herein then lies a critical distinction from other TRCS: South Africa became the first country to combine investigating and recommendatory function of a truth commission with the function of granting amnesty and the Committee on Amnesty unlike other TRC Committees did not consist solely of Commissioners.

A hallmark of the process and indeed the wider notion of restorative justice is the focus that it had on victims and the restoration of dignity. In this regard, the SA – TRC aimed to establish and make known the fate and whereabouts of victims and by ‘restoring the human and civil dignity’ of surviving victims through providing an opportunity to relate their own experiences.

Complementarily, a Committee on Reparation and Rehabilitation was set up with the mandate to issue recommendations for reparation measures for victims to make the outcomes of the process real and tangible, and indeed restorative.

The criteria used to judge the SA – TRC has been varied. Interestingly, the reviews outside South Africa have been more positive than within. For example, in UK: Ireland called for a TRC based on the South African model and portrayed that it was successful at getting at the truth; bearing legal teeth; and promoting ‘closure’ and ‘healing.’

A sense of the cynicism and irony that the mechanism has at times wrought is reflected in the sentiments of the likes of Albert Mncwango, speaking for the IFP in a SA Parliamentary debate described it as a ‘flawed product of a flawed process conducted with flawed motives.’ He claimed that the TRCs were biased in favour of ANC which was demonstrated by Archbishop Tutu and its Chairman. The aspect of healing was strongly disputed from several quarters and seen in the statement of Mphalehle who argued that the process was not one of healing but rather ‘…tore off the comforting bandages of time and again exposed the wounds.’

Particular aspects of the SA – TRC however have been lauded universally. These include the quality of the final report, the reliability of evidence, the exposure of truth, its promotion of the idea of forgiveness and restorative justice, and its generation of a powerful collective memory and historical narrative.

A commentator and analyst of the SA – TRC, Catherin Jenkins has discussed a few approaches of evaluating the success of the mechanism. Might I add here, that achieving consensus on the criteria for measuring success per se will in itself undoubtedly contribute to the process of reconciliation in a respective context, given that reconciliation is not only a goal but a process too.

Jenkins highlights that using the legal mandate of an institution to evaluate its success (In the case of SA - TRC, the legal mandate was promoting of National Unity and Reconciliation) is problematic since it assumes that the stated objective of an institution reflects the real or actual purpose for which it was established. She argues that ‘reconciliation’ was not the purpose of the TRC but rather a rigorous examination leading to exposing and condemning actions of servants and agents of apartheid state. In a meeting with Jenkins, it was striking to hear of her belief that the conviction of success or otherwise of the mechanism came down to the personality and persuasion of the individual who was making the assessment.

Jenkins argues that SA – TRC was not intended to be some sort of ‘love-in’ between old and new regimes. While admitting that the immorality of apartheid needed to be underlined, she did not agree with the need to justify exposure and denunciation of immorality of apartheid in the name of reconciliation or national unity: ‘In my view, it was appropriate to do it because it was just to do it, even at the cost of some damage to reconciliation or national unity. It was just to name and shame perpetrators of abuses and to try to give victims a sense of having been heard, or having had their ‘day in court’ … It was just to try to make the beneficiaries of apartheid deeply uncomfortable, if not ashamed. It was a far cry from contributing to national unity or reconciliation but rather a continuation of the struggle on new terrain. The hearing became a battleground for competing and contested accounts, rather than a love-fest of national unity and reconciliation.’

South Africa was clear on its position with regard to international norms and standards. It did not agree to using international law as a standard to judge the SA – TRC as it believed the most important thing was to do what was best for South Africa, whether or not it complied with international law. Jenkins argues that this does not mean to disregard international law but to focus on the real difficulties that must be faced in resolving conflicts and dealing with their aftermath. Jenkins recommends that such difficulties, if and when they arise, should be dealt with sensitively at the international level, rather than engaging in a critical rhetoric which offered no practical assistance.

Proponents of SA – TRC argue that TRC has the potential to influence development of international standards and it is a novel way to deal with the past. It argues that while retributive justice is not the principal method of responding to conflict, the South African approach did not reject retributive justice entirely, but proposed a ‘carrot and stick’ methodology. It professes to seek to achieve same ends as retributive justice through TRC: investigation and exposure of truth; public calling to account and a degree of punishment through sharing.

As South Africans we do not impose any solution on anyone around the world. All we ever do is to share our own experience and tell them how, through negotiation, through compromise - through giving and taking we were able to defeat the monster of Apartheid

It arguably goes one step further by promising to achieve more than that could be achieved by retributive justice. It deals with more cases than possible through the courts; the victim-centered approach brings dignity and reparation for victims like no retributive approach can and it would make recommendations which would contribute to broader contextual and societal healing and stabilisation. The skepticism about amnesty has been refuted by the fact that amnesties would help to reveal information badly wanted by victims. Also, criteria in founding legislation were not intended for all who requested amnesty to be granted and it might be in the end denied to those deemed not worthy of it.

The SA – TRC is believed to contribute to the idea of accountability in Africa. Since the TRC has its roots in a debate about accountability which began in South Africa in 1992, Richard Carver of Africa Watch has suggested that this debate in itself was a breakthrough for Africa. Carver argues that countries like Namibia and Mozambique are examples in Africa where the language of accountability has simply been absent from the political landscape and the past has not been formally addressed. - Before the liberation of South Africa, one can point to only a few state-sponsored attempts in Africa. A few unsuccessful attempts were in Uganda in 1974 and 1986; Zimbabwe in 1985 and Chad in 1990- These attempts lacked serious political will and commitment and hence are distinguished from TRC as a real advance for Africa. important to mention is that the SA – TRC drew on the debate on accountability that was gaining momentum in Latin America. The wider impact of SA – TRC was seen in Africa and in the rest of the world. It inspired the creating of the Investigation Panel in Nigeria called the ‘Oputa Panel’, the TRC in Sierra Leone, the creation of ITCR in 1995, the commencement of domestic prosecution in Rwanda, the Introduction of the ‘gacaca’ process, the start of the prosecution of Mengistu’s henchmen in Ethiopia in 1997, the establishment of a special court for Sierra Leone, attempted but unsuccessful prosecution in Senegal of Hissein Habre, the former dictator of Chad and hence, is believed to be part of the progress towards greater accountability in Africa.

Transitional justice expert Martha Minow asserts that to approach healing and reconciliation involves adopting a path of moderation, a path that is ‘between vengeance and forgiveness…’

Ultimately, it is important that each mechanism is judged for its success and impact on its own terms. A distinction between ‘success’ and ‘impact’ must be made. While success can be equated to fulfillment of the commission’s mandate and public issuance of report, impact requires that the exercise and experience resulted in substantive change in the society.

Further, it must be remembered that it is difficult to disentangle a truth and reconciliation commission from the political environment into which it is born. Also, each commission has a different mandate based on a different past and present circumstances.

The associated and cultural environment in which the mechanism operates must also not be overlooked.

The SA – TRC aimed to establish and make known the fate and whereabouts of victims and by ‘restoring the human and civil dignity’ of surviving victims through providing an opportunity to relate their own experiences

That said, there existed a triad of universal values which must guide all processes of individual and national reconciliation. These are dignity, empathy and magnanimity.

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Between vengeance and forgiveness

The South African reconciliation process was successful because all parties participated, moral leadership was given by Nelson Mandela, victims were permitted to fully express their experiences and all evidences given were in public and not behind closed doors

A distinction between ‘success’ and ‘impact’ must be made. While success can be equated to fulfillment of commission’s mandate and public issuance of report, impact requires that the exercise and experience resulted in substantive change in the society

As South Africans we do not impose any solution on anyone around the world. All we ever do is to share our own experience and tell them how, through negotiation, through compromise - through giving and taking we were able to defeat the monster of Apartheid

The SA – TRC aimed to establish and make known the fate and whereabouts of victims and by ‘restoring the human and civil dignity’ of surviving victims through providing an opportunity to relate their own experiences

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