/ 3 October 2015

Slow trek to justice mars TRC’s legacy

Slow Trek To Justice Mars Trc's Legacy

The tale of reconciliation in South Africa has all the makings of legend: a daunting – and, at times, seemingly impossible – challenge, a course of action driven by principle over personal grudge, the pursuit of good over evil, and the joining together of various forces in an effort to achieve an ultimate ideal.

The road to reconciliation was cobbled together with aspirations, compromises and an inevitable balancing of tensions between the idealists and the sceptics. For those of us intimately involved in the process, what kept us on this road was the belief that the future of our democratic South Africa depended on it.

Truth was at all times the elemental mandate of the Truth and Reconciliation Commission (TRC). But the hearings were arduous, and physically and emotionally draining. Together we relived some of the darkest moments in South Africa’s history, and sat through heartbreaking retellings of acts that I can only describe as pure evil. I remain convinced that this truth-telling was a critical step in the road to reconciliation – but it was by no means an easy one.

I do not believe that reconciliation can be viewed in isolation from the truth. But, as we look back, have we crossed the symbolic bridge that the interim Constitution spoke of?

The document stated: “This Constitution provides a historic bridge between the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights, democracy and peaceful coexistence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.”

The work is not yet done. There are certain key components that remain outstanding that I wish to highlight.

The first is in relation to financial reparations. This was an important component of the framework of reconciliation. The TRC acknowledged, however, that the reparations process was deeply flawed. Many people who were entitled to reparations did not receive a cent. The state also rebuffed the recommendations of the TRC as to the appropriate amount to be paid. The frustrations caused by these shortcomings continue to fester across the country even today.

Another is in relation to the prosecution of wrongdoers. It was fundamental to the process that those who did not apply for or receive amnesty would face the consequences of the law – in particular, the possibility of prosecution by the National Prosecuting Authority (NPA). It was this combination of judicial stick and TRC carrot that was intended to encourage people to come forward and account for their wrongs.

As was stated in the TRC report: “It has always been understood that, where amnesty has not been applied for, it is incumbent on the present state to have a bold prosecution policy in order to avoid any suggestion of impunity for contravening its obligations in terms of international law.”

On the completion of its work, the amnesty committee handed over about 500 missing person cases and 300 cases to the NPA – but very little has been done since then. According to former national director of public prosecutions Vusi Pikoli, “there was political interference that effectively barred or delayed the investigation and possible prosecution of the cases recommended for prosecution by the TRC”.

Earlier this year, litigation was launched on behalf of the family of Umkhonto weSizwe member Nokuthula Simelane, whose apartheid-era killers have neither been granted amnesty nor been held to account – which will hopefully lead to action being taken. To date, however, in failing to pursue these matters, the victims and their families have been let down by the state, the police and the NPA. In my view, a continued failure to do so will do serious damage to the legacy and the gains made by the TRC.

Of course there are stories that remain untold and truths that remain hidden. Some may come to light and others may never be known.

I am reminded of the words of former Czech president Václav Havel: “I am not an optimist because I am not sure that everything ends well, nor am I a pessimist because I am not sure that everything ends badly. I just carry hope in my heart. Hope is not a feeling of certainty that everything ends well. Hope is just a feeling that life and work have a meaning. It is not an estimate of the state of the world. It is something that you either have or you don’t, regardless of the state of the world that surrounds you. It is a dimension of human existence.”

I remain hopeful that history will continue to bear out that the reconciliatory approach that we adopted in South Africa was the correct way forward.

This is an edited version of a speech delivered by George Bizos, author of No One to Blame? and counsel for the Legal Resources Centre, at the invitation of the Foundation for Human Rights. He was assisted by Avani Singh of the Legal Resources Centre