Ransitional Justice In Post Apartheid

Introduction

This essay discusses the conceptualisation of transitional justice in South Africa in the post-Apartheid era through the establishment of the Truth and Reconciliation Committee of South Africa. This is done through the analysis of the documentary film Long Night’s Journey into Day. The documentary was chosen because it concerns the efforts at healing of a society that had been bitterly divided through Apartheid and beyond. The Apartheid era had witnessed violence that was from both sides, White and Black. Therefore, blame for the violent acts was not limited to any one group and involved all. Therefore, how a society torn by such violence used transitional justice methods to find healing is an interesting and intriguing area of study, making the movie an interesting and learning experience.

Long Night's Journey Into Day, does not offer a false hope about justice being served through the mechanisms of the Truth and Reconciliation Committee of South Africa, but is based on the premise that it is not possible to deliver complete justice with regard to the events such as those that are covered by the four case histories in this documentary. The film shows that what is possible is the uncovering of the truth and with this the hope of starting the healing process. As Archbishop Tutu says in the documentary, the focus of the Truth and Reconciliation Committee was not to pillory anyone but to seek the truth. I think this proceeds from the acceptance of the fact that in a situation that has seen intergenerational violence over a prolonged period of time, it is not possible to identify the direct actors of the violence with the hope that such identification will be enough to start the process of healing and reconciliation. Violence in such societies and situations is often very complex and involves direct as well as indirect actors, none of whom can be totally absolved or given amnesty, unless such actors admit to the truth in the first place, which can start the process of healing for the victims as well as the perpetrators.

The film’s case histories themselves show how complexity is the principal characteristic of violence in societies as troubled as South Africa was in the Apartheid period. Through the movie, one learns to empathise with some of the perpetrators of the violence while having the sensitivity to the plight of the victims. To explain this further, one gets the sense of the violence that has shaken the society and pushed some people onto the commission of violent crimes. This is not to condone the acts of violence but to understand that sometimes situations may be bigger than the individual. This is brought out the most keenly by the case history of the black man who has killed an American freedom activist, who also happens to be a Fulbright scholar. The fact that she is a sympathiser of the anti-Apartheid movement, who gets killed by a member of that moment because she is White, is one of ironies which makes the experience of seeing her parents accept amnesty for the man who killed her, hard to watch. The process also brings to fore questions of agency to the victim, which cannot be provided because the victim is no longer alive and the issue of whether forgiveness can rightly be given to people who are guilty of such heinous and senseless crimes.

On the other hand, it is hard not to sympathise with the mother of one of Amy Biehl’s killers who seems to be just as heartbroken as Amy’s parents. Interestingly, it is through the parents of Amy and the mothers of the perpetrators, we see the costs of the violence. This raises the question as to victimization being beyond the direct actors and the impact of the violence on people other than the direct victims.
Representation of victims has been one of the tricky issues in transitional justice. Often the victims are not around to forgive or reconcile with the perpetrators as we see in Amy’s case, where her parents substitute for her by agreeing to the killers being granted amnesty by the committee. Therefore, the question of agency is an important one within the transitional justice discourse. At the same time, post-conflict situations present difficulties in providing agency to all victims as the complexity of the conflict spills over to the post conflict situation also. It has been noted:
“It is true that in some post-conflict situations or in situations of prolonged authoritarianism victims often lack the space or skills to speak for themselves vis-a`-vis elites – both state and others such as aid workers, NGO officials, and ‘academic migrant workers’. But the practice of speaking for and about victims further perpetuates their disempowerment and marginality. To be sure, as transitional justice experts, both from the First World and Third World, we appropriate the right to speak for victims by dint of our geopolitical and institutional privilege.”
While the above statement is more true for those victims who are alive but somehow denied the agency to represent themselves, the issue does extend to victims who are dead, especially in terms of forgiveness on behalf of the victim. This is the other important issue that is brought to the fore in the movie: can forgiveness for the commission of violent crimes against the victims be given by the families of the victims?

The film documented the case histories which brought murderers face to face with the families of the victims. Although, the murderers were essentially asking for forgiveness for their actions, the fact remained that the victims could no longer forgive them and many of the family members were not willing to forgive them for their crimes.
The South African experience with the Truth and Reconciliation Committee is generally regarded to be a successful one, however, it is also noted that “truth commissions are no panacea for the vast wounds and unfathomable damage that gross violations of human rights and systematic, state-sponsored terror perpetrate.” This issue of the inability of the truth commissions to provide blanket resolution of the past is one of the highlights of the movie and one that is apparent throughout the movie. The film shows how justice is a very complex and subjective concept. In some societies, justice for victims of conflict related violence would be punishment for the accused. In the Truth and Reconciliation Committee of South Africa, a very different approach to justice was taken where those convicted of violent crimes were given an opportunity to ask for permission for amnesty from the victims or their families provided that they admit to and accept the truth about the atrocities committed by them. Therefore, this would not be a traditional or conventional conceptualisation of justice. However, in the film what we see is that many of the survivors conceptualized justice as a process by which they got closure from the pain of the past by the act of the perpetrators’ admission of guilt and truth.
Indeed, transitional justice system is not so much about justice as it is about seeking to find a process by which the needs of the victims are met while the perpetrators are given lesser degree of accountability. The South African Truth and Reconciliation Committee was premised on the need to provide a space where the stories and truth about the atrocities could be told so that the victims and the society could start the process of healing. The thrust was on investigation and truth telling and not on justice. The perpetrators were promised that they could receive amnesty for their crimes if they agreed to participate in the committee’s proceedings honestly. Therefore, the participation of the perpetrators was based on the amnesty.

It has been alleged that the committee offered perpetrators impunity and not amnesty. While the Truth and Reconciliation Committee may seem as a way of providing an easy way out for the perpetrators, the film shows that it must not have been easy for the perpetrators to face their victims’ families and explain to them their role in the atrocities and crimes against the victims. Therefore, what may seem like an easy way out situation for the perpetrators was actually a long and painful process of confrontation and acceptance of the past. The South African government used this as an opportunity to provide reparations programmes for victims, as well as memorialise the victims of the conflict.

The survivors or their families place a significant amount of value on the truth of the past atrocities and its acceptance by those guilty of wrongdoing against them. The film shows how some of the perpetrators have carried the guilt around with them for years and how it is has impacted their lives. At the same time, the victims’ experience of the atrocities also impacts them and their families. When the truth about the atrocities is accepted by the perpetrators, it is an important moment of acknowledgement of the wrong by the perpetrator to the victim or his family.
The central message of the movie is Truth and Reconciliation Committees and transitional justice mechanisms cannot provide quick fix solutions in post conflict situations, but these mechanisms do offer a chance to perpetrators to admit to their wrongs and share the truth about the events that led to the victimization of others as well as offer the victims or their families an opportunity to share their experiences and explain to the perpetrator how their actions affected the victims. In other words, the thrust is on the reconciliation that can come after the truth about the events is revealed. This can provide closure to some of the victims and their families.
The most important lesson that I learnt from watching the movie is that societies that experience conflict, experience it in a variety of ways that compound the complexity of the situation. In a post conflict situation, transitional justice mechanisms are used to provide some closure to the victims and their families and an opportunity to the perpetrators of violence to ask for forgiveness and contribute to the process of restitution. However, the process is painful and there are many issues that make the process difficult and controversial at times. For one, many of the victims are not around to give their forgiveness to the perpetrators. It is the family of the victims who substitute for the real victims. Therefore, the

concept of forgiveness itself is flawed and incomplete in the Truth and Reconciliation Committee.

Conclusion

The Truth and Reconciliation Committee of South Africa was premised on the need to provide a space for the truth of the atrocities to come out so that the process of reconciliation could begin in earnest. It was believed that it was important to confront the past in order to create lasting peace for the future and the committee was considered to be the best way forward. The film showcases how the committee was not a panacea for the atrocities and how the committee did not have the power to offer quick fix resolutions. Rather, the process of the truth was a painful one that brought to fore not just the atrocities committed by the perpetrators but also the fractured nature of the African society in the Apartheid era, which bred violence.

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Bibliography
Articles/Books/Reports

• Cole, Catherine M., ‘Reverberations of Testimony: South Africa’s Truth and Reconciliation Commission in Art and Media’ in Clara Ramírez-Barat (ed.), Transitional Justice, Culture, and Society: Beyond Outreach (SSRC, 2014).
• Madlingozi, Tshepo, 'On Transitional Justice Entrepreneurs and the Production of Victims' (2010) 2(2) Journal of Human Rights Practice 208.
• Mamdani, Mahmood, ‘Amnesty or impunity? A preliminary critique of the report of the Truth and Reconciliation Commission of South Africa (TRC)’ (2002) 32 (3/4) diacritics 33.
• Reiter Andrew G, ‘The development of transitional justice’ in Olivera Simic (ed.), An Introduction to Transitional Justice (Routledge, 2016).