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• Historical Analysis of State-Society Relations in Indonesia!
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THE ROLE OF CIVIL SOCIETY IN DEALING WITH PAST AND PRESENT CONFLICTS
Ms. Yasmin Sooka Truth and Reconciliation Commission, South Africa Paper presented at the 12th INFID Conference "Challenges for NGOs: The Role of Civil Society in a Changing Society," Bali/Indonesia, 14-17 September 1999
1. Introduction I start with a quote from our dearly beloved President, President Nelson Mandela.
These extraordinary words characterize the South Africa that we have inherited. We have recently enjoyed a second democratic election. President Thabo Mbeki is determined that his rule and that of his government will be focused primarily on delivery to the black majority who still bear the brunt of economic dispossession and the restoration of a new moral order. The events in East Timor which we have followed very closely in South Africa strike a resonance in our hearts for we were almost there. We watch in shame as the World failed to intervene and prevent the blood bath that is taking place there. In 1994, South Africa was almost in the same position, on the brink of a historic change but not knowing whether it would be accompanied by violence or not. I remember that many of the world's famous reporters and photographers arrived weeks before the election expecting to take pictures and write stories of violence. When that did not happen, they moved on to other trouble spots where the news was more exciting than watching millions of South Africans, braving the early morning cold, standing in long snaking queues to put their mark for the first time on a piece of paper that would take them to freedom. The patience as White and Black stood side by side, shared food and drink and swapped stories was humbling. We cried in the joy of tasting the sweetness of democracy. How was that possible? How did we achieve this miracle? What made it possible? What role did civil society play in this miracle? We need to be extremely careful when evaluating what made South Africa's transition to democracy possible. We should be careful not to romanticize it or believe that the south African situation can simply be transposed on other countries. A number of compromises were made in our situation and they may not be appropriate elsewhere. 2. Historical background To understand this miracle we need to go back in time. In 1652, the first slaves were imported into the Cape. Many of them share a common history with you. They were Malay political slaves who having been found guilty of political offences in their own countries were sent by the Dutch to the Cape. During 1652 and 1834, they were brutally treated. The White Settlers displaced the indigenous Khoi and San tribes in wars of dispossession and in the course of their colonial conquests penetrated further and further into the country until in 1906 they defeated one of the last great Black heroes, Chief Bambatha. During the seventeenth and eighteenth centuries, the Khoi and the San were systematically hunted down and exterminated. The Zulu inspired Mfecane displaced thousands and killed thousands as well. During the Anglo-Boer war in 1899 -1902, British forces herded both Afrikaners and Africans into concentration camps. More than 50 000 people died in the concentration camps. This year as the country celebrates the centenary of that war, hatred still exists between the English and the Boers because no attempt has been made by either side to address the historical issues that mar the relationship, even now. In 1909, South Africa became a country independent of Great Britain. Effectively, power had been transferred by the colonial power to a white minority. The Land Act of 1913 began the ghetoisation of Africans, it lay the basis for the future separation of Whites and Blacks. It effectively wiped out the African farmer and peasant and set in motion, the massive forced removal of African people. So whilst formal legalized discrimination and oppression only began in 1948, discrimination and oppression between the races began long before that. Thus discrimination and oppression existed before apartheid and had its roots far back in South Africa's colonial past. Nevertheless, the apartheid state that was constructed after 1948 was different from the discriminatory order that preceded it. Although many of its laws built on or updated a pattern of segregation, the apartheid system was of a qualitatively different type. From 1948, the new White Afrikaans government was no longer content to tolerate a pattern of segregation in which 'gray' areas of social mixing remained - such as in urban residential patterns and inter-racial personal contacts and relationships, including marriage. Instead, it set out to segregate by law every aspect of political, economic, cultural, sporting and social life. President Mandela wrote:
In terms of the Group Areas Act, the entire country was demarcated into zones for exclusive occupation by certain racial groups. Implemented from 1954, the result was mass population transfers involving the uprooting of (almost exclusively) Black, Colored and Indian citizens from the homes they had occupied for generations, and the wholesale destruction of communities. The legal moralism of legislating separation based on color allow the government to escape the immorality of it all. This failed to acknowledge that the law simply made crime legal. Thus, laws arose not out of reverence for justice, but out of a wish to legitimize the system. This process of legitimization provided a self-justification for those whose task it was to pass, enforce and defend the law. Stripped bare, the 1913 Land Act was an act of violence, a brutal separation of people from their means of sustenance. So too was much of the repressive legislation that followed down the years. Laws tore millions of workers from their families, forcing them to work in white areas and live in enclosed compounds to which their families had no access. Laws forced people to work for grossly insufficient remuneration and to endure the indignity of pay scales determined not by competence or experience, but by race. Laws forced people from their homes and communities and from their ancestral lands. Laws dictated with whom one might and might not have sex, marry or even drink. Laws allowed people to die rather than violate 'whites-only' hospital edicts, and then determined in which plot of ground they could be buried. The legislation of the early apartheid years and the implementation of those laws were countered by considerable political activity and campaigning in the 1950's. This took the form of non-violent resistance campaigns in the cities, such as the Defiance Campaign of 1952/53, the Congress of the People in 1955, the 1956 bus boycotts, and anti-pass laws campaigns in 1959 and 1960 and so on. The adoption of the Freedom Charter by the ANC in 1958, the growing mobilization of non-African sectors, the rising militancy of the breakaway PAC, and the widespread mobilization around wages and pass laws were perceived among an increasing sector of the white public as justifying the actions of the NP. On 21 March 1960 an unarmed group of demonstrators assembled outside the police station in Sharpeville, a township south of Johannesburg, to protest against the pass laws. The police responded by opening fire, and 69 people were killed. The government declared a state of emergency, banned the African National Congress (ANC) and the Pan-Africanist Congress (PAC). The ANC and PAC reconstituted themselves underground and began to establish offices beyond South Africa's borders. These events led to both Liberation movements abandoning non-violence as a method of resistance. Sharpeville provoked an international outcry. This was the era of decolonisation, and while most African countries were in the process of winning independence, the South African government was implacably set on entrenching White rule. In 1961 South Africa broke ties with the Commonwealth and became a Republic, thus turning its back on international censure. 1960 established a climate of surveillance and repression and placed the police above public scrutiny. Incommunicado detention, without access to lawyers, had a similar effect. Allegations of torture became widespread. A process of strengthening the police went alongside the legislative changes. The Security Police in particular expanded considerably. The impact on the liberation movements was dramatic. Already battling with the new experience of running organizations 'underground', individuals were ill-prepared to deal with long periods of detention that were accompanied by often brutal interrogation techniques. At the same time, the massive relocation of people by the Group Areas Act and the homeland policy, further constrained organization and opposition to the government. By the mid-1960's resistance had been successfully crushed. 3. The Role of the International community South Africa has enjoyed an extraordinary position in the International world. Our fight against apartheid has enjoyed the attention of the International community. One of the most important interventions at an International level was the funding of Liberation movements for humanitarian purposes by the World Council of churches. The famous Cottleloe Consultation concluded that :
In 1968, the WCC pledged itself to eliminate racism in the world. This was important for South Africa because the WCC declaration also went on to say that 'force may be used to dislodge entrenched injustice by Christians". This raised concern in many quarters. The WCC then took a decision to fund the Liberation movements fighting against the minority regimes in Angola, Mozambique, Rhodesia and South Africa. The WCC went on to say that '..the church must always stand for the liberation of the oppressed and for the victims of violent measures which deny basic human rights. It calls attention to the fact that violence is in many cases always inherent in the maintenance of the status quo' The WCC went on to fund the Churches in South African which ran many different social welfare programs for Black people. 4. The Development of the South African civil society One of the great strengths of the South African situation has been the resilience of its people, the strong civil society structures which included Ngos', the Faith communities, Trade unions and Human rights bodies which emerged in reaction to the struggles and injustice in our past. We should not underestimate the role played by anti-apartheid structures in other countries which included solidarity campaigns, sanctions, funding and lobbying the international community and their respective governments. The International community invested a great deal of funds and energy in developing South Africa's civil society at a number of different levels. This intervention allowed the growth and development of civil society different to many other countries in the world. This has left a legacy for Modern day South African a unique asset base of organized civil society which is assertive and aware of its rights and is intent on playing its role in the transformation of South Africa. The New government has after four years in office realized that whilst they can put in place empowering legislation to make delivery possible, they cannot deliver effectively on the ground. In this regard partnerships with organs of Civil society enhance delivery. In the new South Africa, the need for civil society partners also create a source of tension between NGO's as they compete with each other on the ground. How did Civil society dealt with he conflicts of our past ? It is worth dealing with some specific examples in order to answer this question. In the main, some of the responses to Apartheid and all its injustices include the creation of alternative structures, petitions, letters and private appeals, Official statements and resolutions, the development of an alternative Theology (Kairos and the emergence of an authentic Black religious voice), networking with International structures, civil disobedience campaigns and passive resistance, solidarity with the liberation movements, giving a voice to the voiceless, monitoring of violence and support of structures in the Townships. If one was to single out civil society movements, the major one would be the formation of the United Democratic Front (UDF) in 1984 which included diverse affiliate groups like the Cosatu (the trade union movement),student bodies, the civic structures, NGO's and faith community structures. In South Africa, civil society structures and the religious community took on apartheid and its structures and in doing so found expression in many different forms. Both the SACC and the SACBC through the Justice and Peace ministries were able to give succour to the rural poor and the oppresses. They made it possible for Black children to receive schooling particularly as Black education was meant to produce a nation of laborers only. They ran social and welfare programs including ministering to death row prisoners, refugees programs, legal assistance programs and women development programs. For most Black South Africans, the SACC and the SACBC became the place where you sought refuge if you were in trouble and needed assistance during Apartheid times. In effect, the organs of civil society took on the function of dealing with social welfare and justice issues for black people in the Apartheid society. South Africa was not a country where you have conflicts based on religious differences. In 1984, we formed the South African chapter of the World Conference on Religion and Peace. Many activists in the struggle opposed Apartheid because of their religious beliefs. Recognizing the plurality of religions in the country and the richness of its diversity, many of us came together in those days to fights apartheid. This involved dialogue with people of different faiths. Opposition to the Governments' policy based on common thread of faith. This has had an impact on public debate today as it is accepted that South Africa is a country where all the faiths are represented at State functions. 5. STRATEGY OF VIOLENCE ACCOMPANYING THE NEGOTIATIONS In order to understand the transition one has to examine the negotiation process in tandem with the organized cycle of violence that is characteristic of the 1990's period in our country and in which more than 14000 people lost their lives. There were a number of role-players who did not participate directly in the negotiations but who nevertheless had an enormous influence on the negotiation process. They include, the security forces, the military, the judiciary, magistracy and public administration services. The question that the Truth & Reconciliation Commission will have to deal with at the end of its process is "to what extent the agenda and pace of negotiations were driven by proponents of violence who were able to make their influence felt from outside the conference chamber. In any negotiation process, there are role-players who determine the final agenda from outside of the negotiations chamber. They are usually powerful role-players who have a vested interest in the outcome. Thus the shape of the eventual political and constitutional outcome was determined by these agendas. In the first transition period many of these people continued to play a role both in government, the military, the police, the judiciary, magistracy and in key civil society positions. I will attempt to deal with some of these issues because they may have resonance with your situation here. In the 1960's, South Africa had two major security forces. The South African police (SAP) and the Military (SADF) were given extensive powers including the power to detain and receiving virtual immunity from prosecution. In the period between 1960 and 1980, the police were used to suppress the Black majority ruthlessly. They adopted a shoot to kill policy and were able to do that with a great deal of immunity. This has left a lasting legacy of hatred, suspicion and distrust of the police. Today in South Africa, civil society finds it difficult to own the police, to identify it as its own and to trust it. This is fuelled by the inability of the police to deal effectively with crime thus resulting in people taking the law into their own hands. The Security police, the unit that concerned itself with political activists were regarded as the cream of the police units and were able to act with impunity. The emphasis in fighting political foes has meant that the police largely ignored the movement of crime syndicates into South Africa. In 1967, MK joined forces with Zipra, the armed wing of the Zimbabwe African People's Union. As many as 2000 policemen were sent to fight alongside the then Rhodesian security forces. When trouble broke out in Namibia, the police were sent there first. Whilst working alongside the Rhodesians, the police learnt intelligence gathering methods from them. Black soldiers would pose as guerrillas, they would operate in enemy territory, capture a guerrilla, interrogate him/her and use the intelligence gathered to launch an attack. The guerrilla would not be able to go back to his/her unit and so would be induced to act as a spy or an agent for the government forces. In South Africa, such 'turned guerrillas were known as Askaris. This issue of who is a spy and who collaborated continues to haunt our country. The paranoia under which members of the Liberation movements lived in exile and amongst civil society structures has meant that to be labeled as a spy meant death often by necklacing during the conflict. Our transition society still ignorant as to exactly spied is often rocked by allegations that high ranking government officials collaborated. A number of key policemen who served in Rhodesia, came back with this specialized knowledge and utilized it at home and in Namibia. (Koevoet and Vlakplaas). I will deal with two such units briefly. General Dreyer founded a unit in South West Africa which consisted of Black officers who were highly trained, mobile and heavily armed. They operated on a bounty basis with officers being rewarded for each killing they bagged. The only difference being that the bounty were Human beings and not animals. The demonization of the enemy by the former state has really confused White South Africa. Taught for generations to regard Blacks as enemies and as less than animals, they are forced to live with them as political leaders. This has a devastating effect on transition today as many Whites cannot accept or live graciously with the changes. Thus they carp incessantly on how standards are dropping and make no real effort to assist in transformation. Later another key policeman who was to become the most notorious head of a death squad, Eugene de Kock returned from Rhodesia and he became in 1979, the head of a group of Askaris. Their job essentially was to kill persons identified by the security branch. As in the nature of all covert operations which start out with a political basis, very soon they run into other kinds of illicit rackets. As many security policemen find no real home for themselves, they continue to run with these rackets in Modern day South Africa, thus continuing the cycle of crime and violence. A number of policemen were also sent to learn torture and interrogation techniques from Algeria, Chile and Israel. The military had in 1975 launched an unsuccessful attack into Angola. The lessons they learnt from it led to the development of the 'total onslaught ' strategy. Until 1978, they were not as powerful as the police until a change in government which brought a Military man into power as Prime Minister, cleared the way for them to take charge. This ascendancy allowed the strategy of a total onslaught to be pursued vigorously by the government. This involved combating sanctions, counter revolutionary strategies, the arming of vigilante groups in Black township, the fostering and fomenting of Black on Black violence. The structures that were set in place at every level of society which was centralized at the top in the State security council became more powerful than the cabinet. (example Matthew Goniwe and the Trust feeds case) The sheer force of numbers made it difficult for even the total onslaught strategy to work. In 1983, the Government in an attempt to co-opt coloureds and Indians introduced a three chamber Parliamentary system. Through the intervention of NGO's, the UDF and other civil society structures, this constitutional dispensation was boycotted. Bu 1985, the townships had become ungovernable with the UDF having provided leadership in the townships to oppose the Governments. The UDF, widely perceived to be the ANC's internal wing within the country attracted widespread support within the country and abroad. It was then that the idea of a clandestine secret strategy or third force was mooted. Both the Military and the Police put in place structures which would become death squads and engage in criminal activity. In addition, the Military trained 200 Black paramilitary personnel for Inkatha, an ethnic Zulu group having a power base in one of the provinces of south Africa. Inkatha having its roots of origin in the ANC broke with the ANC and became a powerful force in Kwazulu Natal. It's leader Chief Gatsha Buthelezi poised a real threat to stability on the eve of elections. The war between its forces(aided by the former government) and the ANC in the 1990's led to the loss of thousands of lives. South Africa at a political and social level became a highly militarized society. The difference between South Africa and Indonesia is that the Military did not control the rest of society. The commission found that the Politicians were careful to ensure that they did not explicitly command these units to carry out extra-judicial executions. Officers who were trained in covert and illegal work learnt to interpret the wishes of the Politicians. Politicians, turned a blind eye to the work of these units. This attitude on the part of Politicians from the Old order has had an impact on the responsiblity that Whites are prepared to accept for Apartheid and the economic deprivation it has caused. The inclination to blame the atrocities on a few bad apples and the tendency to view Apatheid as a policy that was not pragmatic has not generated an ethos or attitude for change. The spill on effect is that Black South Africa feels that things are too easy for Whites who have made no real commitment to change. This descent into corruption and criminal activity has had a huge effect on Modern day South Africa. The crime that we see today has its roots in the period when the police and the military were allowed to indulge themselves without impunity. After 1980, the International Community's campaign to make South Africa a pariah nation had an enormous impact on our economy. The imposition of sanctions on South Africa also created a huge industry in sanctions busting. The Military in particular were involved in setting up front companies which were used for sanctions busting. The elite Afrikaner Broederbond via the Reserve bank engaged in state sanctioned illegality. Leading Businessmen were themselves involved in white collar crime. The involvement of key sections of South society in this type of crime has meant a blurring of what constitutes criminality. In the new South Africa, most citizens decry crime but are unable to examine the way in which they themselves contravene the law particularly in regard to breaking the law. This is the legacy of the total onslaught strategy. Many of these front companies were involved in the trade of weapons, diamond and gold smuggling, the drug trade and the trading in rhino horn. When the military lost sway and a number of military personnel retired or left the service, they formed security companies and many became mercenaries for hire. Some of them operate in neighboring countries in Africa and are responsible for helping to spawn the violence in neighboring countries such as Angola and Mozambique. The plethora of security firms has meant that the right of communities to expect to be protected and feel secure has been compromised. Only the rich are protected whilst the poor are prey to criminals and are unable to afford privatised security. 6. The Impact of the end of the cold War on South Africa By 1990 a single political party had been in power for more than forty years .the emerged as the largest white opposition. However, a number of factors had an influence on the changing scene in South Africa. A number of influential businessmen had met with the ANC in exile. The government itself had decided to meet with Nelson Mandela, the Americans had a new approach to the Soviet Union and had placed pressure on South African on the Namibian question. The end of the cold war had also had an effect on the ANC who could no longer look to the soviet Union for support and arms. 1990 was a momentous year for South Africa. On 2 February, at the opening of Parliament, President FW De Klerk announced the unbanning of the ANC, the SACP, the PAC and 32 other organizations. The release of Nelson Mandela, imprisoned since 1962 followed in February. FW De Klerk announced these measures as steps to create a climate for negotiations on a new constitution - as part of a growing realization by an increasing number of South Africans that only a negotiated understanding among the representative leaders of the entire population would be able to ensure lasting peace. By the end of the year constitutional negotiations had not yet begun, but both the Groote Schuur Minute and the Pretoria Minute had been signed between the NP and the ANC and the SACP. In the first, the ANC had agreed to assist in curbing violence to enable the lifting of the four-year old state of emergency, and in the second, the ANC agreed to suspend the armed struggle it had launched in 1961. This was done "in the interests of moving as speedily as possible towards a negotiated peaceful political settlement." The government, for its part, equally made concessions on the release of political prisoners, the return of political exiles, the amending of security legislation. Here the Faith communities came together in a structure together with all the Liberation Movements to negotiate with the former Government on a process to bring the exiles home. Often when the Liberation movements were not talking to each other, the NCCR provided a forum where they were forced to deal with each other. This often meant a lessening of political tension. The negotiation process culminated in the setting up of a Transitional Executive Council which administered the first democratic elections and set a process in place for a new constitution which included a Bill of rights. In terms of the agreed interim constitution, approved by Parliament on 22 December 1993, the 1994 elections resulted in the establishment of the government of national unity. The constitution guaranteed a five year pact with no real change in the power structure which ran the country. Nobody would lose their jobs in the security forces, the judiciary, and the civil service. The lack of transformation in the first five years owes it to this fact. Civil servants loyal to the former government having no loyalty or commitment to the transformation process or to the new government played a role in destabilizing progress. The negotiations, set in motion a new phase of politics which essentially acknowledged that the political settlement required negotiations between popular political organizations and the government, and could not be resolved by attempts to win legitimacy outside of these political forces in society. Negotiations, though, were a lengthy, unsure and complex path into a political unknown where the apartheid government had not been defeated and the opposition political movements had not been victorious. The 1990s showed that the government remained militarily strong, but politically divided; while the liberation movements, and particularly the ANC were politically and symbolically strong, but organizationally weak. In particular the processes of turning previously banned and exiled political movements into more narrowly defined political parties was particularly problematic. The Liberations movements were not prepared for negotiations at the time that they were unbanned. One of the major contributions made by civil society to the process was that key leaders at various levels were given to the Liberations movement in the form of employees who were loyal to the cause and who could be trusted to carry out a task competently. Civil society lost many key leaders to government and all its attendant structures thus weakening the capacity of civil society in the early phase of transition. The reverse of this has meant that civil society has been able to play a major role in both policy and implementation. Through the Truth & Reconciliation Commission process, we have learnt that elements in the Security establishment were not able to accept the terms of the negotiated settlement and when their influence waned as they lost their power base to the National Intelligence services, many nurtured the idea that they would be able to carry out a coup d'etat. Pro-right-wing forces within the security forces joined with each other and armed rival Black groups which were then used to destabilize and weaken Black support for the ANC's bargaining position. The train and bus massacres that were carried out by clandestine forces during the 1990's period led to the deaths of an number of people. The violence in the province of Kwazulu Natal certainly led to the loss of life of thousands with many have their homes destroyed in arson attacks and many being physically displaced through being driven out of their homes. The ostensible Black on Black violence was being orchestrated by these seceurocrats. The former government weakened its own position by not exercising authority decisively and timeously over the third force. Steps taken by it such as the appointment of the Goldstone Commission and the premature retirement of key Military and police personnel including two Generals were too late. The President's inaction weakened his government's authority and lessened confidence. In contrast, the ANC which had been on the backfoot after the unbanning emerged stronger, sharper and more decisive around its negotiating strategy. The failure of the Indonesian government to act decisively in East Timor may have weakened their position considerably and their capacity to lead transformation. This was certainly true of the previous government. The government became dependent on the ANC for assistance in moving to reform. Through the negotiation process, the ANC put proposals on the table which reined Afrikaner nationalists in. In a dramatic fashion, the ANC on the stroke of midnight proposed an amnesty clause which was broadly acceptable to the Security Forces and in particular the Generals, who had held out for a blanket and secret amnesty. This amnesty created the potential for a Truth Commission to be set in place. It is important to note that there was very little consultation with civil society on the question of an Amnesty and many who had fought for the ANC felt betrayed at the compromise. 7. SOUTH AFRICA'S TRUTH AND RECONCILLIATION COMMISSION 7.1 Background South Africa shared with Latin American countries a number of similarities: South Africa, in common with other emerging democracies has had to deal with the following questions: In South Africa's case, the old Order sought a blanket amnesty in which the security forces would be indemnified. This was rejected by the ANC. Another option was 'Nuremberg 'style trials. This was rejected as it could have had the effect of destabilizing the country. Economic power was still vested in the hands of whites and from a security point risks still existed. A third option was of course to establish a Truth Commission. This represented a political compromise. It offered amnesty under very restricted conditions, and offered victims the possibility of establishing the truth, the restoration of dignity and nation building in terms of establishing accountability and the possibility of healing of a nation. South Africa studied the Truth Commissions of other countries very carefully and then crafted its own process. One cannot pretend that the Amnesty provisions were anything but a result of the political compromise. They provided the cornerstone for the whole negotiation process. If the Generals' had not been given this option, there is no doubt that the country would have been plunged into a civil war. Many former allies of South Africa, particularly Human Rights groups in the World felt that this was a betrayal of the cause fought by so many who had died in the process. After the 1994 elections had taken place, the then Minister of Justice signaled his intention of setting up a Truth & Reconciliation Commission. He was aware of the binding obligation contained in the interim constitution but was determined that he would not allow a process which would negate the rights of victims. Omar, himself a human rights lawyer who had been detained by the former government was determined to convert the right to amnesty into a process which would focus on the rights of victims. He initiated debate within civil society and took on board the suggestions and recommendations of the strong vocal organized civil society. The ANC government created the space for civil society to engage with it on this issue. When there were suggestions that the process should take place in secret, the opposition by civil society and the assertive way they went about making their points won the day. Many Human rights groups had monitored the violence during the Apartheid years and they networked with each other to monitor the government's handling of the process. In this way they played a crucial role on behalf of victims. 7.2 UNIQUE FEATURES OF THE SOUTH AFRICAN TRUTH COMMISSION Structure of the committee Opposition to amnesty One of the central debates in the world today is on the question of amnesty. The obligations of a nation state to punish those who perpetrate gross human rights violations conflict with the notion of a state granting amnesty. The South African option provided for individual application, full disclosure of the facts, the notification of victims of the hearing and the application and the provision of legal assistance for the victims. So in a sense, an amnesty hearing can become an encounter between victim and perpetrator. I cannot pretend that this was widely accepted in our country and quite early on in the process, very prominent families in the former struggle brought an application in the court to have the provisions of the amnesty law declared unconstitutional. In addition, they held that the amnesty provisions conflicted with South Africa's obligations in terms of Public International law. In a major judgment, our Chief Justice delivered the judgment of the constitutional court in very poetic language in which he deals with why countries make these compromises and the possibilities that reparation offer. One of the questions that will need to be dealt with in the future is whether a country's domestic arrangements will be upheld in International law. 7.3. TRUTH TELLING The first essential element of a truth commission is that it must deal with truth telling. In this regard the Commission has dealt with what I call five kinds of truth. Firstly there is the factual truth. The Act obliges us to 'prepare a comprehensive report which sets out its activities and findings based on factual and objective information and evidence collected or received by it or placed at its disposal' This operates at different levels. At an individual level, the commission is obliged to make findings on particular incidents. The commission is obliged to determine who did it, to whom, where and what was done. In this regard the Commission did a basic verification test using external sources to determine this factual truth. This findings policy was based on the test of a balance of probabilities. The second truth that the commission was concerned with was the 'systemic truth'. The commission was obliged to in terms of the act to look at the context within which violations took place, patterns underlying violations, the nature causes and extent of the violations. In other words it had to examine the systemic nature of the commission of gross human rights violations. This truth has been overwhelming. Nobody can deny the systemic nature of the violations and the role of the former state in the systematic commission of gross human rights violations. In this regard the words of Michael Ignatieff are pertinent.
Similarly in South Africa, it is no longer possible to deny that the state eliminated thousands of people clandestinely and buried them secretly in unmarked graves. In this regard, a number of exhumations still need to done. The nature of public discourse has changed in the white community from "it is not true" to "we did not know that it was happening". We need to change this to "we did not really want to know, we wanted to continue enjoying the privileges without knowing how and why" then public consciousness will be complete. Thirdly there is the personal or narrative truth. Through the telling of the story, both victims and perpetrators have given meaning to their multi-layered experiences of the south African experience. The oral tradition has been preserved.(visual and radio) This has been one of the most important facets of the work of the Truth commission. By allowing the victims to tell their own story in their own words, it has allowed the opportunity for the human and civil dignity of victims to be restored by relating their own accounts of the violations they had suffered. The Commission in this regard has contributed to the creation of a narrative truth by breaking the silence and unlocking the stories of the past. There has been a restoration of the collective memory of the nation in a humane way. People spoke to an official government body, in their own language and were treated with dignity. WE can never underestimate the power of the story beamed into thousands of homes by way of television and radio. Fourthly there is the social or dialogical truth. Judge Albie Sachs first introduced this concept. Dialogue truth, he said is social truth, truth of experience that is established through interaction, discussion and debate. The Truth & Reconciliation Commission process involved people from all walks of life, the faith community, the media, the legal and health community, civil society and political parties. Through the intense media coverage people became involved in the debates. The process of interaction was therefore transparent, a pattern of dialogue which I believe affirmed the values of our fledgling democracy namely truth, transparency, a commitment to democracy and participation as a mechanism to affirm human dignity and integrity. Finally there is the healing and restorative truth. The truth which the Truth & Reconciliation Commission is required to establish must contribute to reparation and rehabilitation. It must look at how to prevent gross human rights violations taking place in the future. In this regard, truth telling is not enough, there must be an official acknowledgement of what has happened. There must be an acceptance of accountability. We have in our report dealt with this. Our President has repeatedly stated that the cost of attaining our democracy was high. It was paid for by the lives of thousands of people. When Parliament debated the report all the political parties and government publicly acknowledged accountability for the crimes committed. This in a large measure contributed to healing. 7.4. Comments accompanied by amnesty clauses which seek to avoid the normal obligations of nation states. Essentially they are truth seeking and don't lead to retributive justice mechanisms. They focus on restorative justice as an option. 2. Essentially the South African Truth Commission brought another element to the table. It sought to bring a moral dimension to the work of the Truth commission. It upheld the almost religious terminology of a moral universe subject to the basic notions of morality. So its factual findings are accompanied by moral findings of culpability. In this regard, many people including the former state president have asserted that we have overreached ourselves in making findings of this nature. We have responded with the assertion that essentially the process is a moral one and the act allows for us to establish 'political or other accountability'.
9. Prosecutions We have always understood that the amnesty process was an intervention in very special circumstances. If you did not apply, then the law would take its normal course. In this regard, the Commission has recommended that prosecutions should follow. We are now in the second phase of transition and one of the questions that will need to be answered is whether the Truth & Reconciliation Commission process assisted the transition. In order to deal with this question, I will repeat a story told by a dearly beloved friend in my country. It is the folk tale of the lion and the rabbit. The lion catches the rabbit in the act of stealing from the lion. The enraged lion pounced on the thieving rabbit. As the lion was about to eat the rabbit, the rabbit shouts that the roof of the cave is falling down. He asks the lion who is stronger to hold up the roof while he will seek help. The lion, grateful for the fact that he has not eaten the clever rabbit releases the rabbit and immediately uses his powerful limbs to hold up the roof of the cave. The rabbit rushes away. Of course, the rabbit does not return. The lion after holding the roof up for hours ponders on his fate. Finally totally fatigued, he lets the roof go. Nothing happens to the roof of the cave and the lion realizes that he has been fooled. My clever friend went on to say that many in South Africa say that the clever rabbit represents the Whites who have left Blacks holding up the roof while they get on with their lives. One can be forgiven for thinking that the transition has been one big major trick because on the fact of it so little has changed. Whilst we have Black faces in government, they are heavily dependent on the White civil service for assistance. The business world is still dominated by the White majority and in many instances of black empowerment deals, Blacks have been left hold empty empowerment shells. In terms of a better life, the idealistic new government opted for an economic policy that would transform the lives of ordinary people. The impact of globalisation soon forced government to abandon its socialist policies and take on Gear, a policy that allows for very little spending on transformation. So the real tragedy of South Africa and the devastation that Apartheid as wreaked at an economic level cannot be redressed overnight. One of the problems of the TRC was the question of time and the fact that it focused on the grossest of human rights violations, namely killings, torture, abductions and severe ill treatment. It did not examine in great detail the grossest violation of all the policy of apartheid. The Commission focuses on the moral, political and legal consequences of the apartheid years. It did not focus on the socio-economic implications of apartheid. It is in this area that the greatest inequities exist. The beneficiaries of apartheid need to understand and accept that if reconciliation is to take place, it cannot be done without great personal sacrifices so that the poor can be uplifted and the gap be narrowed between the rich and the poor. At present the differences are stark and obscene. In the words of the Deputy President, we have one South Africa but two nations. The task in the next five years of the government will have to deal with the socio-economic issues. 8. The transformation of the Criminal Justice system Whilst there is political stability and the Military now serve the new government in the same manner that they served the old. Gradually older officers are retiring and making place for new ones. There is less criticism of them than of the police. It is the police who are not able to shake off their tainted image. Many policemen are hooked into corruption rackets that they pursued in the past under the guise of dealing with political foes. Now they are pursuing a purely criminal agenda. The chickens have also come home to roost. The weapons that were so widely distributed in the transition period is being use to kill and create mayhem in the country. The police have not yet been able to deal with our society which is heavily armed and highly volatile. Heists and highjackings are the order of the day. No sector of our society is immune. The culture of ungovernability fostered by civil society in the 1980's now has the potential of scuttling the running of cities with people still remembering the rent boycotts of the 1980's refusing to pay rental and the supply of services. The lack of respect for life which was so characteristic of the Apartheid society has meant that life has no value. People are killed and our society has become immune to the statistics. Civil society has now embarked on programs to restore the moral fibre of our nation. We put guns into the hands of 15 and 16 years olds. We turned them in to soldiers. We did not absorb them into structures which would normalize them. Now as they experience joblessness, a rejection from the society they broke laws for, they feel alienated and turn to crime. They are truly South Africa's lost generation. The first four years of the transition were the years dedicated to restoring political peace in our country. The next four years are about delivery, restoration of faith in the institutions of justice and a transformation at an economic level of our society. In my final comment I would like to say that societies will never be free of conflict. Rather we will learn to manage conflict and utilize it to transform our society. Recently, the new Minister of Justice incensed at the inadequacies of the Judicial system made some unflattering remarks about the Constitutional court and its judges. Whilst he was forced to apologize to the Judges who felt offended at the remarks, it created and stimulated public debate about the rationalization of judicial resources in our country. Indeed we South Africans have been proud about our Bill of rights and our Constitution. What we did not realize is that in the passing of the Constitution, it did not mean that we would automatically become a constitutional state. Many criticize and say that the constitution is too lenient and ask why criminals have so many rights. It is only through education and making the constitution accessible that ordinary people will understand the value and necessity of the constitution. Agreement between political parties don't bring change at the bottom rung of society. This has been the problem in South Africa. Unless civil society is engaged and brought on board, government will not have the capacity to transform a society.
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