Harrowring the Ground

The South African Truth and Reconciliation Commission

‘Harrowing the Ground so that Others May Build’

The second time I went to South Africa to sit in on TRC hearings, Antjie Krog, a radio journalist with the South African Broadcasting System gave me a copy of a letter. The letter had been signed, first name only, and although the writer indicated what part of the country she was from, she wrote: ‘I prefer to keep our address anonymous. We don’t need any ‘silencers’... an accident happens too easily.’

‘After my husband had spent about three years with the Special Forces, our hell began. He became very quiet. Sometimes he would just press his face into his hands and shake uncontrollably... I never knew. Never realized what happened during ‘the trips’. I had to be satisfied with ‘what you don’t know won’t hurt you....’

‘Today I know the answers to all my questions. I know where it began... The role of ‘those at the top’... and ‘our vultures’ who had to carry out their bloody orders. The churches and community leaders. Of those who did everything to keep exclusive power. Today they all wash their hands in innocence and resist the realities of the TRC... I stand by my murderer who let me and the old White South Africa sleep peacefully... While those at the top were targeting the next ‘permanent removal from society’.

‘I have forgiven the freedom fighters for their bombs, mines and AK-47s they used so liberally. There were no angels... I would have done the same had I been denied everything... if I had to watch how White people became dissatisfied with the best, and still wanted better, and got it.’

‘I envy and respect the people of the struggle. At least their leaders have the guts to stand by their vultures, to recognize their sacrifices... As long as the vultures were useful, tributes were dished out. Today, the same vultures are wasted and ask only recognition and support. They do not get it....’

‘One night my wasted vulture told me: They can give me amnesty a thousand times but I have to live with this hell. The problem is in my head, my conscience. There’s only one way to be free of it. Blow my own brains out. That’s where my hell is.’

Reconciliation after war and a hideously grotesque pattern of gross violations of human rights is a matter of creating peace in the present, and of sustaining peace in the future. Peace is not simply a matter of stopping physical violence. It is also a matter of helping people overcome what has been done to them... and of overcoming what they have done, so that a future might be built.

In and of itself, no Truth Commission can create reconciliation. Much less can a Truth Commission create peace. However, they do create conditions which make reconciliation and peaceful coexistence possible. They do this by uncovering the reality which embraces the factual truth of the past, and the emotional truth of both the past and of the present. No Truth Commission to date has done more to create such a full picture of reality than the South African TRC. The TRC has made it possible for the citizens of that country to begin to understand why people participated in such grotesque actions, and it has made clear what must be done to prevent such things from happening again.

This was accomplished in two ways. First, the TRC chose to work with a restitutive, rather than a retributive concept of justice. And second, they made the choice that all aspects of the Commission’s work would be kept absolutely transparent. They emphatically encouraged the national -and international- public and media to be a part of this work.

Not all South African citizens are happy with the way in which the TRC functioned. In particular, some who survived torture, rape, abduction, and some whose loved ones were tortured and murdered in cold blood passionately desire that the perpetrators of atrocity be punished for their crimes. There’s a strong undercurrent that justice has not been done; that the only thing that will assuage the bitterness of loss, of acid grief, of harrowing memory, and continuing painful present, is retribution.

A person who has not personally lived through such horrors is in no position to argue with this. Instead, let us consider how the TRC worked, and why it worked the way it did.

The TRC is the result of a negotiated settlement that ended the war in South Africa. No side won that war. If the negotiations had failed, there was a ghastly prospect that civil war would continue.

Military and security chiefs wanted a blanket amnesty, while some representatives of the liberation forces demanded trials. But some form of amnesty provision was essential to ending that war: without it the killing, the torture, the rapes and disappearances would have continued.

A compromise was eventually reached, and in May of 1995 President Mandela signed the Promotion of National Unity and Reconciliation Act (the Act) which lead to the creation of the TRC.

The TRC consisted of the Human Rights Violations Committee (HRV), the Reparation and Rehabilitation Committee (R&R), and the completely autonomous Amnesty Committee. Each of these committees was assisted in their work by the Investigation Unit, and by the Research Unit which was also responsible for the creation of the Final Report. The HRV Committee was at work for about 15 months. They received and investigated more than 21,000 statements from Apartheid’s victims and survivors. They also oversaw hearings for various South African institutions, including media, business, the medical profession, and religious organisations.

The R&R Committee was responsible for developing a policy for reparations and rehabilitation for victims and survivors. They made recommendations on the basis of what was learned from the HRV hearings and submissions.

These recommendations were sent to the office of the President, and then to the Parliament. The TRC’s Final Report recommends that over a six year period a little under three billion South African Rands should be paid out; however, this is being debated in Parliament at the time of this writing, and it is uncertain what the final decision will be.

The Act also included some specific elements which made it possible for the South African TRC to penetrate, to an unprecedented degree, the reality that had existed during apartheid.

One unusual element of the Act was that it granted the TRC power of subpoena. The TRC could and did legally compel persons to attend hearings and give evidence. If a subpoena was refused, legal penalties, including fines and jail terms were applied.

But the most important of these elements was the TRC Amnesty Provision. According to the Act, amnesty could be granted to individual persons who made full disclosure of all relevant facts relating to acts of violence associated with a political objective. The Act specified that employees of the state, including both Security Forces and the military, and members of the liberation forces, were eligible for amnesty for acts of political violence committed between March, 1960 and May, 1994.

Persons receiving amnesty from the TRC’s Amnesty Committee are immune to prosecution in South Africa’s civil or criminal courts. Conversely, those who applied but did not receive it, or those who did not apply at all, may face either or both criminal and civil charges, providing enough evidence can be found to write indictments. (97 percent of amnesty applications heard as of June, 1998, have been denied.)

The South African Truth and Reconciliation Commission created a direct linkage between amnesty granting and truth telling: amnesty for truth. If perpetrators had not voluntarily come forward much truth and much reality of that time would have been lost. Paper trails and evidence regarding perpetrators of gross violations of human rights do exist. But not a lot of it. And not enough to successfully prosecute all perpetrators of gross violations of human rights during apartheid. 

The agonizing cascade of information coming out of the TRC hearings was challenged many times, particularly in courts of law. The TRC faced a barrage of litigation from perpetrators who didn’t wish to be named in HRV hearings, and from political parties who had constitutional and bias problems with the process. Lawsuits were filed by survivors who did not require more information out of Amnesty proceedings because they knew what had happened to their loved ones and wished to see either criminal or civil cases mounted against alleged perpetrators in the hope that they would be found guilty and punished. Although only a few of these challenges had the specific intent of silencing the torrent of raw information pouring forth from the TRC in many cases, had they been successful, their effect would have been just that.

The truth that came out of these TRC hearings is about delivering justice, but not as in ‘justice equals punishment of those proven guilty in a court of law’. For the TRC justice is about uncovering what really happened: it’s about establishing reality in all it’s conflicting perspectives. This essential form of justice would have not been found in the work of adversarial court cases. It required an amnesty process.

But justice is also a matter of the victims and survivors being able to tell their stories, to tell the reality of their experience and to make it public. There will always be a gap between the factual truth, and the reality which encompasses both factual truth and the emotional truth. To re-create the reality which existed before, the TRC has demonstrated that one must have the factual truth. But it has also clearly shown the urgent necessity of making room for the emotional truth of the victims, the survivors, and the perpetrators. All of these people must tell their stories: if the intention is to foster reconciliation, all of these people must be heard.

As was noted by the Constitutional Court of South Africa, the desire to see perpetrators of human rights violations vigorously prosecuted and then punished for their callous and inhuman conduct is legitimate. But they also wrote that: ‘Much of what transpired in this shameful period [of apartheid] is shrouded in secrecy and not easily capable of objective demonstration and proof. Loved ones have disappeared, sometimes mysteriously, and most of them no longer survive to tell their tales...

‘The Act seeks to address this massive problem by encouraging these survivors and dependents of the tortured and the wounded, the maimed and the dead to unburden their grief publicly... and, crucially, to help them to discover what did in truth happen to their loved ones, where and under what circumstances it did happen, and who was responsible. That truth, which the victims of repression seek so desperately to know is, in the circumstances, much more likely to be forthcoming if those responsible for such monstrous misdeeds are encouraged to disclose the whole truth with the incentive that they will not receive the punishment which they undoubtedly deserve if they do this. Without that incentive, there is nothing to encourage [perpetrators] to make the disclosures and to reveal the truth...’

To really understand the stunning accomplishment of the TRC, one need only turn to the five-volume Final Report. There were limits to the amount of truth the TRC could dredge up in its two and a half year life span, but within those limits, a picture of the whole is bitterly plain: it is impossible to create or sustain any mythology with regard to this civil war in the face of what the Final Report records.

The legacy of the TRC is eternal. Now, when we are still so close to it, we can only barely make out the meaning of the whole: each succeeding generation must build further on the reality the TRC has offered. There were flaws and omissions in the TRC’s process and results. But the Commission did an extraordinary job of beginning.

This article has been written by Colleen Scott.