The brouhaha concerning the white declaration of commitment again raises the issue of reconciliation. Is the acknowledgement of guilt, complicity and benefit in apartheid a necessary requirement to the achievement of reconciliation?
Significantly, this issue reared its head at the time of the Truth and Reconciliation Commission in a number of guises. A controversy erupted concerning the absence of the judiciary before the commission when that body heard evidence regarding the role of law and the legal institutions during apartheid.
In a powerfully written book David Dyzenhaus, a distinguished legal philosopher, has taken the judiciary severely to task, both for its absence from the commission’s proceedings and for the limp-wristed responses authored by some judges.
The acknowledgement that apartheid extracted moral compromise and a lack of coherence among even our most distinguished judges is important as we grapple to assert the legitimacy of law. For example, Richard Goldstone, who signed the declaration, authored a judgement upholding the continued detention of Ismail Momoniat where, on an almost identical argument, Gerald Friedman, albeit in a minority judgement, upheld the argument of Dullah Omar’s lawyers that his detention was unlawful.
Similarly Ray Leon, who had delivered a number of powerful judgements upholding common-law principles over the National Party government’s attempt to destroy the liberal protections of the common law, sentenced Andrew Zondo to death. As difficult a case as that may have been for a judge faced with the existing law, John Didcott spent about 20 years on the Supreme Court, during which time he never passed one death sentence.
These cases reveal Dyzenhaus’s essential point that even fine judges did not always push the limits of the existing system. When confronted with choices many fell short. An acknowledgement of failing does not entail weakness but rather reveals the kind of insight necessary to resist the erosion of the rule of law in the future.
Similarly, the public assertion that apartheid promoted white talent and suppressed that of black South Africans assists in an understanding of the skewed structure of the legal profession and acts as a deterrent to white arrogance about standards itself so deeply ironic when one considers the nature of the legal performance during apartheid.
This view of the legal community can be replicated throughout our society.
So why the reluctance to sign, not only by the FW de Klerks and Marthinus van Schalkwyks, but also from many who are part of the old white left? The FW et al refusal represents merely an acute case of social amnesia. It is almost pathetic to hear this lot drone on about moving forward when there is not a glimmer of concession as to the nature of white benefit from the past and the effect thereof on the current structure of our society. To transcend the past one has to acknowledge it.
The failure of the old beneficiaries to do this will haunt our future and compromise our new constitutional community as earlier failures to do the same now compel Germany to continually revisit its past. But what of the left who will not sign? Here the argument is far more complex.
The declaration runs the danger of imposing serious censorship on white critics. An acknowledgement of guilt makes it difficult to sustain a moral authority in the future to criticise the new government. It fits snuggly into a discourse in which citizenship is granted to all who sit in the stands and cheer on the new national team. Shout criticism at this national side and suddenly a far more restricted form of citizenship is imposed.
The Constitution promised a democratic society in which debate would replace repression and openness rather than closure as the guiding value. But can this be the case for whites who acknowledge their complicity? From whence now comes their moral authority to criticise, for example, the lack of implementation of the socio-economic rights promised to the essentially black poor? Must they wait for the moral all-clear?
A perusal of the names listed in the Mail & Guardian (December 15 to 21 2000) does not throw up many who have revealed a penchant for critical debate since 1994. For this reason the decision is a difficult one. Does one not sign and join Kortbroek and his obdurate amnesia or Antjie Krog with her breathless desire to make us all happy new campers in the new establishment’s camp grounds?
On balance, recognition of the past is obviously the preferable route. The white MPs who sign may want to reflect on that past before they pass new detention without trial laws. For this reason alone the declaration may be important, for without such knowledge it will not be long before the whole Bill of Rights becomes something of the new past.
We will never achieve a long-term legitimacy for our new constitutional society until we develop a common history. In essence reconciliation is about going back to where the difference began and, from that point, developing some basis for moving into the future together. Denying the past and its role in the present threatens the promise of our Constitution for our children.