Moral Arguments for reparations
The credibility of South Africa’s TRC is at stake
by Michael Lapsley, S.S.M., and Karin Chubb

The Truth and Reconciliation Commission (TRC) came into being in 1995 as part of a negotiated settlement to ensure a peaceful transition to democracy in South Africa. It was a moral response to the evil of apartheid. South Africa’s Promotion of National Unity and Reconciliation Act of May 1995 gave a mandate to the TRC to, inter alia, make recommendations for reparations to victims of human rights violations. In October 1998 the TRC presented its Final Report to then-President Nelson Mandela. However, at that time the amnesty hearings had not been completed, so the "final report" was not complete. The still-awaited codicil includes an amnesty report, a brief paragraph about each person declared to be a victim, and final comments on the amnesty report. The TRC Final Report’s recommendations on Reparations and Rehabilitation had five components:

The integrity of the entire TRC and, particularly, its credibility as a moral force hinges on the reparations issue. The Act itself allows only for restorative justice and prevents other forms of justice once amnesty has been granted. Normally, when people use the word "justice" they mean "retribution." In the case of the TRC, those granted amnesty will not experience retributive justice, as they may not be criminally or civilly prosecuted – the Act takes away the individual victims’ normal rights to pursue justice through the courts and to achieve such reparations or at least such satisfaction as may be possible in the criminal justice system.

However, their victims or the victims’ relatives will regain a measure of their dignity through the ways in which the TRC has respectfully acknowledged the truth of what happened to them and the wrong that was done to them – and through the different forms of reparation which have been recommended. Under the Act, the victims and survivors have to trust that the moral commitment made by the State when it established the TRC will indeed be honored by the implementation of a comprehensive and effective reparations policy. 

It is important, in the light of subsequent events and arguments put forward by the government to justify its delays on reparations, to understand that victims and survivors came forward on an individual basis. The government has spoken against individual reparations on the grounds that many millions of South Africans were victims of apartheid. Relatives of victims, survivors and perpetrators appeared before the TRC as individuals. To recognize the individuality of the one by granting him (we do not know of any women applicants) amnesty for human rights violations (HRV) and not of the other – by relegating their legitimate individual claims to a nebulous group identity –surely undermines the law on which the Commission is founded. If this is upheld, it will have tragic consequences in terms of trust in the law.

Why were victims and survivors prepared to trust the TRC?

In some cases, deep misgivings and hostility were expressed and some families and survivors refused to come forward to testify before the TRC. They did not want the perpetrators to have the chance to apply for amnesty and thus escape the legal consequences of their actions. 

AZAPO (The Azanian People’s Organization) and others went to the Constitutional Court to argue that the granting of amnesty would violate the constitutional right to justice. Although the case was dismissed, Judge Didcott pointed out that "Reparations are usually payable by States, and there is no reason to doubt that the postscript envisages our own State shouldering the national responsibility for those. It therefore does not contemplate that the State will go scot-free. On the contrary, I believe, an actual commitment on the point is implicit in its terms, a commitment in principle to the assumption by the State of the burden" (Azanian People’s Organization and others v. President of the Republic of South Africa and others [SA] 671 1996).

However, many more chose to tell their stories before the Commission and they thus accepted the possibility that those who were guilty of inflicting gross human rights violations might be granted amnesty – in return for nothing more than telling the whole truth.

Why were people who had already suffered so much then ready to trust the TRC process to such an extent? One reason is the human need to tell the story and to have its truth acknowledged by the wider society. Another is the hope of finally hearing the whole truth in the amnesty procedures. But yet another reason must surely lie in the nature of the new state itself. Here, at last, the democratic government was in power that they had longed for and in whose cause so many of their loved ones had suffered and died. Here, at last, was a government that would restore justice that had so long been denied to most of this country’s people.

Apartheid’s legacy: a damaged society

The establishment of the TRC was one important force in the moral reconstruction of a damaged society. It was one major pillar of the "bridge between the past of a deeply divided society characterized by strife, conflict, untold suffering and injustice, and a future founded on the recognition of human rights …" (Final Report vol.1, ch.5, p.103).

It is important to see that while the apartheid system benefited some and deprived the majority, it also damaged the moral fiber and integrity of the entire nation.

Not common guilt but common responsibility

The TRC dealt with all who came before it on an equal basis. Both perpetrators and victims from all sides of the conflict had the right to appear as individuals. The perpetrators had the benefit of legal counsels to argue their case. The victims had the recognition of being heard – and the prospect of reparations. The balance is a crucial one for the moral legitimacy of the TRC and there is a consequent moral responsibility by the State and by the nation as a whole. 

The breadth of the hearings in both the HRV and the Amnesty Committees makes it impossible to shift responsibility for all violations onto a few major criminals. While the broader oppression of apartheid was not a focus of the TRC, it did become clear through the public hearings that evil was done on a broad scale – and in the future, no South African can ever claim not to know.

This raises the issue of guilt and acknowledgment. The German philosopher Karl Jaspers defines moral guilt as wide-ranging and including criminal, political and military actions as well as indifference and passivity (The Question of German Guilt, New York, The Dial Press). He goes on to suggest that it is only the acceptance of culpability which provides the opportunities for a new national beginning. In terms of the moral trajectory of the TRC, this shifts the responsibility of acknowledgment to the nation as a whole. We are required to accept responsibility for the history of which we are a part. 

In a surprising application to the TRC’s Amnesty Committee, a group of young black people applied for amnesty for "apathy." In their application they argued "that we as individuals can and should be held accountable by history for our lack of necessary action in times of crisis, that none of us did all of what we could have done to make a difference in the anti-apartheid struggle, that in exercising apathy rather than commitment we allow(ed) others to sacrifice their lives for the sake of our freedom and an increase in the standard of living" (copy of the original application). 

Whether the TRC will make a lasting contribution toward moral reconstruction and renewal in South Africa hinges on two factors: the acceptance of responsibility for the past, especially by those who benefited from apartheid, and the formulation and implementation of an effective reparations policy. According to the laws the government itself has passed, the latter is the responsibility of the State. 

One of the failures of the TRC process was that, on the whole, the white community did not engage with it. A clear reparations policy formulated and administered by the State but involving all sectors of civil society would open constructive ways in which we could, indeed, "take responsibility for our history."

What if the State fails?

It must be stressed that all who testified before it also understood that within the TRC process there was the obligation to recommend reparations. Expectations were raised by commissioners themselves in many of the HRV hearings, when victims were asked what they would like the TRC to do for them. Unfortunately, many victims and survivors did not and do not realize that the obligation for reparations does not rest with the TRC but with the State. The TRC has been criticized and even vilified for not achieving something which, from the outset, it was neither empowered nor designed to accomplish.

If there are no effective reparations, the question will be asked as to who benefited from the TRC. Apart from the staff of the commission and highly paid lawyers, it is mainly the perpetrators who will have benefited. From the beginning, the amnesty provisions created the suspicion that the TRC would favor perpetrators rather than victims – on all sides of the past conflicts. Already, the treatment of perpetrators has deepened the anger and pain of victims. Many feel that the condition of proportionality has not been taken into account sufficiently, or that the truth as they saw it or knew it had not been told. Credible and satisfactory reparations would help to address that anger now. If there are no reparations, or if there continue to be only minimal tokens, the judgment of history will indeed be that the TRC was a perpetrator-friendly exercise. 

Enormous damage would be done, at all levels, to the trust in a new democracy and to any faith in the rule of law. 

If the State fails, comparisons will be made between a defense budget of 32 billion rand and an individual reparations budget estimated at 5 billion. Under apartheid, defense and security spending overrode all other concerns. Are we heading down that road again? 

If the State fails, there will be disastrous longer-term consequences. The TRC will have left not so much a legacy of reconciliation but a community of embittered and angry people. The inversion of justice and moral order which we inherited from the apartheid era would continue. It would be a moral tragedy for all South Africans if the Truth and Reconciliation Commission were to go down in history as a perpetrator-friendly exercise. 

We can do no better than to quote from the moral argument put forward in the Reparation and Rehabilitation Policy of the TRC’s Final Report: 

"If we are to transcend the past and build national unity and reconciliation, we must ensure that those whose rights have been violated are acknowledged through access to reparation and rehabilitation. While such measures can never bring back the dead, nor adequately compensate for pain and suffering, they can and must improve the quality of life of the victims of human rights violations and/or their dependants. (...) Without adequate reparation and rehabilitation measures, there can be no healing and reconciliation" (Final Report vol.5, chapter 5, pp.174, 175).

In November of 1998, the recommendations for Final Reparations were made to the State. By September of 2002 the South African Government had not yet stated its response and intended course of action with regard to implementing Final Reparations. The government appears to be waiting for the release of the codicil, which has been delayed until January 2003 due to a court challenge by political opposition leader Mangosuthu Buthelezi.

More information

One way that people around the world can support the campaign for reparations in South Africa is to write to our government. Letters urging the implementation of reparations should be sent to:

TRC President’s Fund for Reparations
c/o Mr. F. Hoosen
Department of Justice
Private Bag X81
Pretoria 0001, South Africa

More information about the reparations issue can be obtained from

The Institute for Justice and Reconciliation
www.ijr.org.za

The Centre for the Study of Violence and Reconciliation
www.csvr.org.za

The Home to All campaign
www.hometoall.org.za