Responsibility and Accountability in Theory and Practice

Responsibility and accountability in theory and practice:

The Truth and Reconciliation Commission’s investigation of human rights abuse in South Africa

Marina Carman B.A. (Hons.) Sydney

A thesis submitted in fulfilment of the requirements for the degree of Master of Arts.

University of New South Wales. July, 2005.

ABSTRACT

The TRC did not specifically discuss or define theoretical concepts of responsibility or accountability. However, I argue that it is possible to draw out some important features of its implicit approach – particularly in terms of its emphasis on collective responsibility and social context (in addition to individual responsibility), and its emphasis on moral arguments for individuals and collectives to accept responsibility and hold themselves accountable by contributing to future change. This ambitious and complex approach raised some important theoretical issues, which have been discussed and debated in the theoretical literature. These include: the relationship between individual responsibility, collective responsibility and the influence of “the system”; the nature of collective responsibility; the nature of morality; the distinction between moral and political responsibility; and how individuals and collectives can or should be held accountable.

In South Africa, these theoretical debates inter-mingled with a range of other factors, including individual and collective interests, motives and political perspectives. From an analysis of the existing literature on the TRC and original interviews conducted with key informants, I draw out three main opposing views which I argue arose in the South African social context about responsibility and accountability, and what the TRC could and should have done to address these. In a detailed analysis of the TRC’s hearings and Final Report, I draw out how theoretical debates, and these three opposing views, were present within and impacted on the TRC’s work. I argue that it was impossible for the TRC to satisfy everyone and resolve these debates, and that its approach led to unrealistic expectations of its work and its role more generally. This has impacted negatively on how the TRC was and is perceived.

ACKNOWLEDGEMENTS

Thanks to my first supervisor, the late Rob Steven, for the enthusiasm and inspiration which stayed with me until the end. Thanks to Gavin Kitching, my second supervisor, for his interest and feedback. Thanks to David Philips for his help with drafts. Thanks to Marc Williams for his indispensable help in finishing off. Thanks to those who agreed to be interviewed, all of who did so with openness and enthusiasm. Thanks to the staff at the Centre for the Study of Violence and Reconciliation who provided me with help in many different ways. Finally, thanks to all my friends for their support.

For my parents, whose hearts were also broken by this past.

ii Table of contents

Abstract i

Acknowledgements and Dedication ii

Table of contents iii

List of abbreviations v

Chapter 1: Introduction 1 - The TRC as an institution 2 - The TRC’s approach 4 - Theoretical debates 12 - Practical implications 15 - Contextual debates 17 - Practical implications 26 - Structure 27

Chapter 2: Analysing the TRC 29 - Truth commissions 29 - Contextual literature 33 - Methodology 35 - Views on the TRC 45 - Conclusion 59

Chapter 3: Theorising responsibility and accountability 61 - Individual and collective responsibility 61 - Moral and political responsibility 71 - Accountability 82 - Conclusion 89

Chapter 4: Perpetrators and state institutions 90 - Individual perpetrators 90 - The politicians and parties 94 - State Security Council 102 - The TRC’s findings 107 - Perceptions 113

Chapter 5: Social institutions and groups 116 - Expectations 116 - Individual and collective 117 - Responsible for what? 119 - Moral responsibility 123 - The TRC’s findings 124

iii - Accountability 132 - Perceptions 135

Chapter 6: Accountability: who or what should pay? 138 - Damage caused by abuse 138 - What change was needed? 142 - Who or what should pay? 148 - The ANC’s response 151 - Perceptions 155

Chapter 7: Conclusion 164 - Theoretical debates 165 - Practical implications 166 - Contextual debates 167 - Practical implications 169

Bibliography 171

Appendix A: List of analysed transcripts from the amnesty hearings 189 Appendix B: List of analysed transcripts from the political party hearings 194 Appendix C: List of analysed transcripts from the State 195 Security Council hearings Appendix D: List of analysed transcripts from the business and 196 labour hearings Appendix E: List of analysed transcripts from the human 199 rights violations hearings Appendix F: List of interviews 206 Appendix G: Interview schedule 211

iv ABREVIATIONS

ANC African National Congress

COSATU Congress of South African Trade Unions

CSVR Centre for the Study of Violence and Reconciliation

HIV Human Immunodeficiency Virus

IFP Inkatha Freedom Party

NP National Party

MK Umkhonto we Sizwe

MP Member of Parliament

NGOs Non-Government Organisations

PAC Pan Africanist Congress

SACP South African Communist Party

SSC State Security Council

TRC Truth and Reconciliation Commission

UDF United Democratic Front

v Chapter 1: Introduction

The main aims of the investigation conducted here are to draw out important debates in theory and in the South African social context over the concepts of responsibility and accountability for human rights abuse, and to look at how these were present within, and impacted on, discussions within and around the Truth and Reconciliation Commission. The TRC was a product of the negotiated settlement which ended Apartheid rule in 1994. It met for the first time on the renamed “Day of Reconciliation”1 December 16, 1995. It handed down its Final Report in 1998. Its amnesty process concluded in December 2001, after which a codicil to the Final Report was released in early 2003.

1 Previously a day used by conservative Afrikaners to celebrate the Battle of Blood River in which the Zulu army led by chief Dingane was defeated in 1836.

1 Final Report, I draw out how theoretical debates, and these three opposing views, were present within and impacted on the TRC’s work. I argue that it was impossible for the TRC to satisfy everyone and resolve these debates, and that its approach led to unrealistic expectations of its work and its role more generally. This has impacted negatively on how the TRC was and is perceived.

The purpose of this chapter is to introduce the TRC as an institution and to draw out its approach to responsibility and accountability. I will then outline the main steps in the investigation which follows.

The TRC as an institution

The TRC consisted of three committees: the Human Rights Violations Committee; the Amnesty Committee; and the Reparation and Rehabilitation Committee. Large research and investigative units aided and complemented the work of these committees. The Commission was appointed to run for a period of two years. It established a head office in Cape Town, regional offices in Cape Town, Johannesburg, Durban and East London and a sub-regional office in Bloemfontein. The main objectives set for the TRC were as follows.

1) The TRC was to take submissions from victims of gross human rights violations, investigate such abuses and hold public hearings.

More than 20,000 statements were received from victims2. These contained around 50,000 individual human rights violations. Once the statements were received, they were logged in a database and investigated. Corroborative evidence and background research material was collected and cross-referenced where possible with other cases. Pre- findings were made either accepting or rejecting the statements of alleged violations, and these were then referred on for final national findings. Public hearings were held all around the country. Cases were selected for these hearings that were deemed to be representative and illustrative of the abuses that had occurred in a particular area. As the

2 In the TRC literature, the term “victims” is more prevalent than the alternative “survivors”.

2 Commission travelled around it took further statements. This was particularly important for the involvement of people in rural and isolated communities.

2) The TRC was empowered to grant amnesty to perpetrators who made a full and complete disclosure of their involvement in gross human rights violations with a political motive.

After an initial focus on the hearings and statements of victims, the work of the TRC shifted towards amnesty. By early 1997, it became obvious that many more applications for amnesty were going to come in than at first expected. This increased as the cut-off date for amnesty applications was changed from December 5, 1993 (when the negotiations process was completed) to May 10, 1994 (when President Mandela was officially inaugurated). This was an attempt to include the white right-wing (such as the Afrikaner Weerstandsbeweging) and black groups such as the Pan Africanist Congress and the Azanian Peoples Liberation Army, which had continued to pursue armed struggle during the negotiations. (TRC, 1998: Vol. 1, Ch. 5, Section 63) Amnesty applications were taken in written form, and then hearings were held. Each case was investigated and the hearings prepared in order to gain the maximum information possible. By 1998, virtually all of the TRC’s resources were devoted to amnesty applications. The TRC applied for additional funding to expand the capacity of the Amnesty Committee. The amnesty process was not complete by the time the Final Report of the TRC was presented to the president at the end of 1998. While initial findings had been made on all statements, it had not been possible to hear and decide upon all applications. At the time of its Final Report only 150 amnesties had been granted, with a further 2000 still to be dealt with. (TRC, 1998: Vol. 1, Ch. 1, Section 50) At the completion of its work in December 2001, the Amnesty Committee had considered 7,126 applications, of which 1,146 were successful.

3 3) The TRC was charged with making recommendations to parliament regarding reparations for victims, and with producing a final report containing recommendations aimed at ensuring that such abuses did not occur again.

Throughout the TRC’s operation, the Reparation and Rehabilitation Committee took applications for reparation from individuals, and considered matters referred to it by the other committees. During the TRC’s operation it was granted the power to enact small amounts of urgent interim reparation (usually related to health care or burial costs). Its main role, however, was to formulate recommendations on reparation and change to be contained in the Final Report.

As stated earlier, the TRC did not specifically discuss or define theoretical concepts of responsibility or accountability. In its discussions and Final Report, it uses the terms “responsibility”, “accountability” and “culpability”3 fairly interchangeably, without clearly defining or distinguishing between these. However, I argue that it is possible to draw out some important features of its implicit approach.

The TRC’s approach

In a theoretical sense, the most basic definition of responsibility implies a causal relationship with abuse, whether direct or indirect. Responsibility is therefore a theoretical argument which is applied to a particular set of past circumstances. What I will show is that on the basis of particular arguments about responsibility, the TRC’s approach was based on establishing responsibility by making judgments or findings about individual perpetrators (as a precondition for amnesty), but also about responsibility more broadly – i.e. the contributory actions of state and other social institutions which resulted in abuse, as well as the influence of the social context in terms of pushing perpetrators towards abuse. It also established a process which aimed to ameliorate the damage caused by abuse and made recommendations about what

3 The term “culpability” generally implies moral blame. In the thesis, I have generally subsumed it under consideration of moral responsibility.

4 change was needed. This raised the issue of holding individuals and collectives accountable on the basis of their responsibility.

Accountability has most often been used as a term in the literature on government to describe systems whereby elected representatives or bodies can be held accountable if their responsibility for an action (or inaction) is established. (Przeworski, et. al. 1999; Held, 1996) It also appears in legal and business literature to describe systems for establishing the consequences of responsibility. A problem with applying accountability in terms of widespread human rights abuse is that in most cases formally established and agreed-upon standards and systems of accountability did not exist at the time. A further problem for the TRC was that its amnesty provisions removed the ability to prosecute or sue perpetrators. However, what I will show later in the thesis is that beyond this accountability can be considered as an action which aims to acknowledge or ameliorate responsibility. This can be encouraged through moral argument – i.e. securing an apology and voluntary contribution to reparation. It can also be achieved through formal legal or legislative means (even though retrospectively established). Options here include removal from office or being compelled to contribute to reparation through taxation.

The TRC’s approach to responsibility was based on establishing individual responsibility for abuse, but also looking at the social context which influenced perpetrators towards abuse, and the collective responsibility of various groups and institutions for causing or contributing to abuse.

Individual and collective

The TRC was mandated to establish the individual responsibility of perpetrators – to make findings in relation to individual amnesty for those who had committed or caused politically motivated gross human rights violations. In doing so, the legislation establishing the TRC defined its work in relation to time, space and scope.

The starting date of the period to be investigated was 1960, the year of the Sharpeville massacre. While recognising that abuses had occurred prior to this date, Parliament

5 deemed it necessary to make the task of the TRC more manageable. The difficulty of investigating events that occurred more than 30 years before was an important factor. Most of the violations reported to the TRC occurred in the period after the un-banning of political parties in 1990. The second largest group of violations occurred in the period of states of emergency 1985-1989. (TRC, 1998: Vol. 1, Ch. 6, Section 25) Violations which occurred outside South Africa were included because of the inter-related politics of neighbouring states during this period – particularly Angola and Namibia. The fact that the liberation movement had established and used bases outside the country, and that the Apartheid state had conducted a war against Angola and occupied Namibia made this an important inclusion. There were numerous assassinations of African National Congress (ANC) members in Botswana and Swaziland. Human rights abuses occurred in ANC training camps in other African countries. Beyond this, the TRC further defined and refined its mandate.

The TRC formally limited the scope of its investigations to gross human rights violations. In doing so it states that it had to “walk a tightrope between too wide and too narrow an interpretation of gross violations of human rights”. (TRC, 1998: Vol. 1, Ch. 4, Section 43) The legislation defined the acts to be considered by the commission as:

(a) the killing, abduction, torture or severe ill-treatment of any person; or (b) any attempt, conspiracy, incitement, instigation, command or procurement to commit an act referred to in paragraph (a), which emanated from conflicts of the past and which was committed during the period 1 March 1960 to 10 May 1994 within or outside the Republic, and the commission of which was advised, planned, directed, commanded or ordered, by any person acting with a political motive. (Government of South Africa, 1995: Ch. 1, Section 1 (ix))

After consideration, and despite what the TRC describes as a “deep awareness” of the “systematic discrimination and dehumanisation” which occurred in Apartheid society, the commission resolved that its mandate only allowed it to cover:

… human rights violations committed as specific acts, resulting in severe physical and/or mental injury, in the course of past political conflict. As such, the focus of its work was not on the effects of laws passed by the Apartheid government, nor on general policies of that government or of other organisations, however morally

6 offensive these may have been. This underlines the importance of understanding the Commission as but one of several instruments4 responsible for transformation and bridge-building in post-Apartheid South Africa. (1998: Vol. 1, Ch. 4, Section 55)

The TRC formally narrowed its work to dealing with acts for which it could find individuals or collectives directly responsible. However, it also interpreted its mandate to include the following:

The Commission was obliged to identify all persons, authorities, institutions and organisations involved in gross violations of human rights. This meant that it had to go beyond the investigation of those that had actually committed gross violations of human rights and include those who had aided and abetted such acts. This is consistent with the definition of gross violations of human rights, which includes attempts, conspiracy, incitement, instigation, command or procurement to commit such acts. (TRC, 1998: Vol. 1, Ch. 4, Section 137)

In terms of collective responsibility, the TRC included a focus on institutions which had ordered or were complicit in abuse. This idea had a long historical precedent. Even at the Nuremburg trials, various German government and military bodies were put on trial.

Further, the TRC argued that the usefulness of a truth commission process was that it helped establish a “pattern of events” (TRC, 1998: Vol. 1, Ch. 5, Section 68), and avoided the problem that in the case of prosecution of key individuals the “structures of society and its most formative institutions remained unchallenged”. (TRC, 1998: Vol. 1, Ch. 5, Section 99) As such, it included a range of investigations which were concerned with the social context within which abuse occurred, and the role of various groups and institutions in relation to abuse. It did so on the basis of its mandate to provide as complete a picture as possible of the causes, nature and extent of gross violations of human rights committed inside and outside South Africa’s borders between 1960 and 1994. (TRC, 1998: Vol. 1, Ch. 5, Section 31)

4 These are listed as the Land Claims Court, the Constitutional Court and the Human Rights, Gender and Youth Commissions. (TRC, 1998: Vol. 1, Ch. 4, Section 2)

7 In terms of a focus on social context, a number of “event hearings” were held. These looked at particular “window cases” that the TRC felt could allow some insight into broader patterns of abuse. These included the 1976 Soweto student uprising, the 1986 killing of the “Guguletu seven” (following infiltration by security forces into the ANC structures in the Western Cape), and clashes in the early 1990s between the ANC and Inkatha Freedom Party supporters. The IFP, led by chief Mangosuthu Buthelezi, is a conservative Zulu-ethnic party which was based predominantly in the KwaZulu homeland. Special investigations were held into security forces such as Vlakplaas, security police in KwaZulu and Natal, chemical and biological warfare, and the Mandela United Football Club. Another special investigation was held into the unauthorised destruction of government records. The TRC’s Research Department provided important background information which was used in the hearings to put individual testimony in context. The department also provided information about Apartheid which was included in the Final Report – through a series of chronologies, a catalogue of Apartheid legislation, and through sections aimed at putting perpetrator actions and human rights abuses in historical context. The TRC’s emphasis on social context was also central to the way it approached perpetrators. While the TRC considered the psychological and individual causes of abuse, it stressed the need to consider the context of Apartheid, the cold war and political struggle in influencing perpetrator actions. (TRC, 1998: Vol. 5, Ch. 7) The TRC also decided to hold special hearings to elicit the experiences of particular groups. These included children and youth, women and those involved in compulsory national service.

In terms of collective responsibility, institutional hearings were held into the role of the health sector, legal system, business sector, prison system, the media and faith communities. Political parties were also invited to make submissions about their view of the conflict and an explanation of their role.

The TRC’s Final Report includes numerous findings about the responsibility of perpetrators, state institutions, state leaders, political parties and institutions. It also attempted to establish a process which aimed to ameliorate the damage caused by abuse

8 and made recommendations about reparation and future change. Particularly in terms of addressing accountability, the TRC chose to frame and implement its work from a predominantly moral perspective.

Moral approach

The dominant approach within the TRC – and thus in its public discussions – was an overwhelmingly moral one. This was influenced by its Chairperson (Archbishop Desmond Tutu), and closely tied to Christian views of reconciliation and forgiveness. Tutu’s No Future Without Forgiveness (1999) is the most detailed explanation of the version of reconciliation which came to dominate in the TRC hearings and the public discussion surrounding the commission. Wilson argues:

The dominant formulation of the term linked reconciliation with notions of confession, forgiveness, sacrifice, redemption and liberation. Orthodox versions of reconciliation were forged within TRC committees, memos and internal policy documents and were conveyed to the population primarily through the Human Rights Violation (HRV) hearings. (2001: 98)

The TRC was legislated to combine its amnesty provisions with a process of testimony by victims. This was intended to have a function for the individual victims – ameliorating the damage caused by abuse by allowing their stories to be told and promoting healing. As such, the hearings were a positive experience for many. “What has become very evident and what has become very clear – clear during these briefings, is that for the first time many of us feel that people are now caring and that people are listening.” (William Henry Little, testified in Cape Town, April 26, 1996)5 Allan and Allan write that individuals who have been traumatised have an instinctual need to tell their stories, have the experiences validated and their suffering recognised. They argue that in societies marked by human rights abuse this is best done through a supportive but also official setting. (2000: 462-463)

5 William Henry Little was injured in a bombing of the Department of Coloured Affairs in Durban in 1972. For a discussion of methodology, see Chapter 2.

9 However, the TRC’s hearings also had a function in promoting responsibility and accountability. This was done on the basis of the Act establishing the TRC, which put all its objectives and functions in the context of promoting national unity and reconciliation. (TRC, 1998: Vol. 1, Ch. 4, Section 31) Through its work with the individuals who it assumed would participate in its hearings, the TRC hoped that it could promote the following process:

One of the main tasks of the Commission was to uncover as much as possible of the truth about past gross violations of human rights – a difficult and often very unpleasant task. The Commission was founded, however, in the belief that this task was necessary for the promotion of reconciliation and national unity. In other words, the telling of the truth about past gross human rights violations, as viewed from different perspectives, facilitates the process of understanding our divided pasts, whilst the public acknowledgement of “untold suffering and injustice” (Preamble to the Act) helps to restore the dignity of victims and afford perpetrators the opportunity to come to terms with their own past. (1998: Vol. 1, Ch. 4, Section 3)

The TRC saw its human rights violations hearings in particular (based on individual testimony) as important in influencing society. Bozzoli writes:

It sought to transform individuals and assemblies of individuals from stances of resentment, anger, hatred and guilt, to those of acceptance, wholeness, forgiveness and confession. These changes would then, it was hoped, be “writ large” upon society as a whole, freeing it from the burdens of unspoken passions and from a possible future age of retribution. Public ritual was designed, therefore, to generate personal and social “transition” from one state of affairs to another. (1998: 169)

The TRC itself explains:

Each story of suffering provided a penetrating window into the past, thereby contributing to a more complete picture of gross violations of human rights in South Africa. The nation must use these stories to sharpen its moral conscience and to ensure that, never again, will it gradually atrophy to the point where personal responsibility is abdicated. The challenge is to develop public awareness, to keep the memories alive, not only of gross violations of human rights, but of everyday life under apartheid. (TRC, 1998: Vol. 1, Ch. 5, Section 109)

10 Within and beyond its formal mandate, the TRC saw itself as facilitating broader social discussion of responsibility for the past – and therefore promoting individuals and groups voluntarily holding themselves accountable by contributing to change.

Through its work with selected individuals, the TRC hoped to prick the conscience of its “audience” – beyond those with whom it directly worked.

The emergence of a responsible society, committed to the affirmation of human rights (and, therefore, to addressing the consequences of past violations), presupposes the acceptance of individual responsibility by all those who supported the system of apartheid (or simply allowed it to continue to function) and those who did not oppose violations during the political conflicts of the past. It is, therefore, not only the task of the members of the Security Forces to examine themselves and their deeds. It is for every member of the society they served to do so. (TRC, 1998: Vol. 1, Ch. 5, Sections 101-102)

Groups which this may have been directed towards include perpetrators, those who ordered the abuse, those who benefited from it (e.g. business) and white South Africans and other communities who stood by while abuse was perpetrated. However, the TRC undertook this in an implicit and consensus-building way – primarily based on a discussion of the immorality of the past, and the wish to move on to a new moral future. So for instance, the TRC says of the need to examine and accept responsibility:

This moral responsibility goes deeper than legal and political accountability. Such individual and shared moral responsibility cannot be adequately addressed by legislation or this Commission. What is required is that individuals and the community as a whole must recognise that the abdication of responsibility, the unquestioning obeying of commands (simply doing one’s job), submitting to the fear of punishment, moral indifference, the closing of one’s eyes to events or permitting oneself to be intoxicated, seduced or bought with personal advantages are all essential parts of the many-layered spiral of responsibility which makes large-scale, systematic human rights violations possible in modern states. Only this realisation can create the possibility for the emergence of something new in South African society. In short, what is required is a moral and spiritual renaissance capable of transforming moral indifference, denial, paralysing guilt and unacknowledged shame into personal and social responsibility. (1998: Vol. 1, Ch. 5, Section 103)

11 The importance of this is that it leads on to accountability. In its Final Report, the TRC made a vast range of recommendations for reparation, and institutional and socio- economic transformation, as collective ways of ameliorating the damage caused by abuse. Within this, the TRC also hoped to promote individuals and collectives voluntarily holding themselves accountable through contributions towards ameliorating the damage caused by abuse – via apology, and contributions to reparation and socio- economic transformation. “Reconciliation requires a commitment, especially by those who have benefited and continue to benefit from past discrimination, to the transformation of unjust inequalities and dehumanising poverty”. (TRC, 1998: Vol. 5, Ch. 9, Section 152) A large problem that the TRC faced is that it did not have the power to implement this change or to directly hold individuals and collectives accountable. It could argue for or recommend particular measures to government, but there was no guarantee that change would be forthcoming. The TRC’s moral approach was an attempt to promote future change. However, the results in terms of reparation and socio- economic transformation have been disappointing. (This will be returned to below.)

What I will show in the thesis is that as the TRC tried to implement its approach in its hearings, findings and recommendations, a number of problems emerged. These were related to important debates in theory and in the South African social context over the concepts of responsibility and accountability for human rights abuse.

Theoretical debates

The TRC chose to pursue a complex and ambitious approach. In doing so, a number of important points of theoretical debate emerged as important. These include: the relationship between individual responsibility, collective responsibility and the influence of “the system”; the nature of collective responsibility; the nature of morality; the distinction between moral and political responsibility; and how individuals and collectives can or should be held accountable.

12 Individual and collective

The TRC emphasised individual agency and responsibility, but it also acknowledged, and included in its investigations, the influence of social context and collective responsibility. What I will show in my analysis of the TRC’s hearings and Final Report is that this raised some difficult questions: To what degree are individuals responsible? If particular collectives are to blame, then which ones and for what? If the social context or “the system” was to blame then does this let individuals and collectives off the hook? And in the light of these issues, who or what should pay to put things right? The TRC’s approach to responsibility and accountability raised these issues, but it had difficulty dealing with them. This is in no small part due to the fact that they are related to deeply- contested theoretical concepts and approaches.

The level at which responsibility should apply – individual or collective – goes back to important debates in political theory over determinants of human action and historical change. Within the theoretical literature, there are a number of different perspectives on how to understand and prioritise individual agency and how it relates to collective action and the dynamics of social systems. Collective responsibility in particular is a contested concept because it raises the issues of the relationship between the responsibility of collectives and the individual responsibility of their members, and also the relationship between collective responsibility and the influence and functioning of “the system”. Defining collective responsibility requires consideration of two important issues – the nature of the collectives under consideration, and what collectives might be held responsible for.

In considering the nature of collectives under investigation, it is important to note that some collectives have a structure and leadership, whereas others have no clear structure or leadership. In the thesis, I have used the term “institutions” to refer to the former. As such, I have not used a broader sociological definition which may include social institutions such as the economy, government, religion, education, and family. While the TRC’s institutional hearings could be interpreted as enquiring into some social institutions in this sense – the legal system, health system, the media – these hearings

13 were based on calling specific bodies to testify. So in the thesis, I have used the term “institutions” in a narrower sense – to consider formally constituted and actually existing bodies such as businesses, state structures, and various legal and health authorities. Beyond this, I use the term “social groups” to refer to collectives such as white South Africans, which have no clear structure or leadership. This makes it relatively more difficult to establish the responsibility of these collectives (and the responsibility of their members). This discussion then leads on to what collectives might be held responsible for. This requires looking at how to define active participation in or collusion with human rights abuse, as well as how to consider the rather more passive actions of benefiting and standing by.

What I will argue is that the TRC had difficulty dealing these complex theoretical issues, and in any case it would have been impossible for it to construct an approach which would have satisfied everyone. This also becomes obvious in considering what type of responsibility should apply. The distinction between moral and political responsibility is another point of theoretical debate which emerged as important.

Moral and political responsibility

In the first instance, this debate goes back to definitions of morality. What I will show is that the TRC saw morality as a given, something which could be found and agreed upon through discussion. However, the TRC’s approach proved to be very difficult to apply. The divisions and conflicts of the past often meant that there was little common ground on what “morals” were even being discussed. Within its search for consensus, many debates remained unresolved – including the nature of morality itself and whether it was the best way to consider and interrogate responsibility.

There is a lot of debate and discussion in the literature over whether and how to distinguish between moral and political responsibility, and then how this should be applied to individuals and collectives. Considering individuals in relation to social context and collective responsibility introduces a range of influencing factors which go beyond individual morality. Individuals do have moral views and will act in relation to

14 these – and this can certainly be interrogated. But an emphasis on individual agency may actually contradict an approach based on asking an individual to take moral responsibility for the actions of others – or for a collective. There is also a lot of debate about whether or how collectives can be judged from a moral perspective. Does it make sense to say that a collective has a morality? In addition, moral responsibility is somewhat reliant on admissions from individuals and collectives. In the light of all this, it is perhaps important to consider ways of finding an individual responsible in a political sense for influencing others (particularly when they are in a position to order them), and to look at ways of assigning collective political responsibility (and apply this to members). These are difficult and contested issues.

Accountability

The reason that these issues are important is that they lead on to debates about holding individuals and collectives accountable in terms of ameliorating the damage caused by abuse. Different ideas about how to analyse and understand the past lead on to a range of ideas about what change is needed. Then, in terms of enacting this change, while acceptance of moral responsibility may help motivate voluntary apologies and contributions to compensation for victims, findings of individual and collective political responsibility justify compelling accountability – possibly through removal from office or taxation for reparation. How to approach this, in theory and in practice, is something which would be hotly-debated in any society – and even more so in a context marked by human rights violations and a deeply-divisive past.

Practical implications

The TRC’s inclusion of the issues of social context and collective responsibility was admirable, but as an institution based on individual testimony, it ran into the difficulty of how to interrogate these in its hearings. Many of the agencies and organisations that might have been called to testify had either folded or been subjected to massive leadership and policy change, so there were no longer identifiable individuals who could be called or be asked to act to put things right. Beyond these institutions, it was even

15 harder to call social groups which may have contributed to abuse, but had no clear leader or structure. One large problem that the TRC came up against is that while “the state” and “business” are collective terms which can be used, they are not real things. They cannot be called to testify. An alternative is to deal with such entities by producing individuals who can “represent” them. But it does not always make sense to hold individuals responsible for the actions of a broader collective, or for social processes. These issues can get very confused in a legal or quasi-legal context in which “persons” must be found to “embody” the entities being questioned. The TRC had difficulty dealing with the nature of the collectives it was investigating, and the relationship between individual and collective responsibility. In terms of investigating social context, there was no-one who could or would take full responsibility.

What I will show is that the TRC’s emphasis on morality also created difficulties in its hearings. Representatives of important institutions did have a morality and could be questioned as such, but did it make sense to ask them to take individual or collective moral responsibility for a group or institution? In pursuing the responsibility of collectives for contributing to abuse, the TRC strayed into more general questions about the role of various institutions under Apartheid. This led to a lack of clarity about what it was trying to find collectives responsible for. These difficulties were less obvious in the TRC’s Final Report – where it was mandated to make findings – but were far from resolved. The TRC also drew in more general discussion of abuse under Apartheid as part of its efforts to promote moral repudiation of the past. But it was always going to have difficulty dealing with, let alone resolving, the issues of responsibility and accountability this raised. In its recommendations the TRC had difficulty defining what change was needed, and then linking its findings of individual and collective responsibility to accountability.

In the thesis, I will argue that the TRC did not and could not have come up with an approach which resolved the theoretical debates raised by its approach. These are hotly- debated and contested issues. In addition, it could not resolve the very different

16 conceptions of responsibility and accountability which existed in the South African social context.

Contextual debates

From the beginning of the negotiation process in 1990 between the then ruling National Party (NP) and the ANC, how to deal with those who had committed past human rights abuses and political crimes were points of contention. During negotiations, the NP proposed a blanket amnesty for all those who had committed political crimes. Most other parties strenuously opposed this – dismissing it as an attempt to avoid responsibility and accountability. However, in a country where a transition was enacted without any clear victor, prosecution was also rejected almost immediately as an option. In his foreword to the Final Report, TRC chairperson Archbishop Desmond Tutu states:

There is no doubt that members of the security establishment would have scuppered the negotiated settlement had they thought they were going to run the gauntlet of trials for their involvement in past violations. It is certain that we would not, in such circumstances, have experienced a reasonably peaceful transition from repression to democracy ... Had the miracle of the negotiated settlement not occurred, we would have been overwhelmed by the bloodbath that virtually everyone predicted as the inevitable ending for South Africa. (TRC, 1998: Vol. 1, Ch. 1, Section 7)

In addition to their political problems, criminal trials were seen as costly and less productive in terms of delivering information, justice, healing and speed of resolution. Between the options of general amnesty and pursuing criminal trials, the compromise position emerged of individual amnesty linked to a truth commission process. The ANC began to argue for this course during negotiations.6 After the Interim Constitution was finalised, a “postamble” was recorded:

… amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past. To this end, Parliament under this Constitution shall adopt a law determining a

6 The ANC’s push for a truth commission was prompted in part by its own experience of commissions. It set up the Stuart, Skweyiya and Motsuenyane commissions in the early 1990s to deal with accusations of human rights abuses in ANC training camps outside South Africa. (Boraine, 2000: 11)

17 firm cut-off date, which shall be a date after 8 October, 1990 and before 6 December 1993, and providing for the mechanisms, criteria and procedures, including tribunals, if any, through which such amnesty shall be dealt with at any time after the law has been passed. (Government of South Africa, 1993)

In this sense, the initial impetus for the TRC was establishing individual responsibility. However, it was also seen as an option which would combine amnesty with allowing victims a space to tell their stories, facilitating public acknowledgment, and promoting discussion of responsibility and accountability. In terms of how the TRC then chose to carry this out, its emphasis on social context and collective responsibility was a product of its context. In a forum held during the TRC, Mahmood Mamdani raised what became a well-known critique of the TRC’s overall framework – that it was overly individualised and was not bringing out the systemic nature of abuse under Apartheid. (2000) In response to views of this type, Ntsebeza explains:

Months after the TRC commenced its work – following many internal debates – we decided that we would have to place the Report into some kind of context, hence the institutional hearings into the legal system (focussing on the role of the judiciary), the media, business, the health sector, and so forth. (2000: 104)

TRC Human Rights Violations Committee member, Russel Ally, was central to preparing the business and labour hearings for the TRC. He says:

The difference in the South African commission is that it was something the world hadn’t seen before. It brought all the elements together in a unique way. There were internal divisions. There was external pressure. It had to work out how to consider gross human rights violations, and how these were linked to the broader violations of Apartheid. (interview conducted May, 2002)

Deputy general secretary of the South African Communist Party (SACP)7 and ANC MP, Jeremy Cronin, says

Like most aspects of the transition it was contested, and there was disagreement amongst the TRC itself about what it should focus on. Some did support it taking up the broader systemic issues. Others wanted to stick with the more limited

7 The South African Communist Party (SACP) was closely allied to the ANC through the “Tripartite Alliance” which also included COSATU. (Pampallis, 1991: 223)

18 legislation. But despite the legislation I don’t think there was anything stopping the TRC from discussing these issues. And it in fact did. (interview conducted, May 2002)8

The TRC’s emphasis on morality and consensus was also linked to its context. Post- 1994 was a time of great optimism, and this infused the formulation, operation and process of the TRC. However, the TRC was established as part of a settlement which resulted from a complex process of compromise.

Despite attempts at reform from the late 1970s onwards9, the continuing existence of the Apartheid state served to unify opposition amongst the black population and the regime faced unremitting political protest and armed struggle. Price argues that the ascendancy of F.W. de Klerk as state president in 1989 marked the rise of a new leading faction within the NP, displacing the “securocrats” who were bent on repression. (1991: 276) This set the scene for state approaches to the ANC about negotiations. The ANC was not able to seize power directly through military means – under the weight of state repression, important military defeats in the frontline states, and the collapse of the Soviet Union. The NP retained a large degree of military and bureaucratic power throughout negotiations10, but it had clearly lost the battle for legitimacy. Apartheid had been condemned internationally, backed up by sanctions.

The settlement which ended Apartheid was based on significant political and ideological change, while the ANC compromised on major economic issues such as property rights, redistribution, nationalisation, land reform, control over foreign investment, and involvement of the International Monetary Fund and World Bank. (Marais, 1998) Marais outlines the main elements of the eventual compromise as follows:

8 For a full discussion of methodology, see Chapter 2. 9 Reforms included: increasing wage levels and educational opportunities for some urban, semi-skilled blacks; upgrading black living conditions in the townships; allowing some black business activities in the city centres; reforming some laws mandating discrimination and segregation, including in the areas of marriage, sexual relations and public amenities; and allowing some regulated union organisation. Later in the 1980s, passes and influx control were abolished, as was the Mixed Marriages Act. The 99-year leasehold home ownership for some blacks in the townships was converted to freehold. 10 Covert operations continued into the negotiations period. (Marais, 1998: 89) The NP was also accused of aiding operations under the guise of the so-called “third force” and aiding of Inkatha Freedom Party violence against the ANC.

19 • Power-sharing: establishment of a Government of National Unity after general elections to rule for five years; executive power to be shared between parties with more than 5% of the vote; 70% majority required to form government.

• Continuity in the state: agreement to leave the civil service and security forces intact.

• Protection of minority rights: agreement to 33 binding constitutional principles, including protection of “diversity of language and culture”, recognition of “institution, status and role of traditional leadership”, strengthening the leverage of the provinces (which allowed the NP and IFP to gain footholds in the Western Cape and KwaZulu-Natal after 1994), and the “independence” of the Reserve Bank.

• Protection of rights: adoption of a Bill of Rights which ranks as one of the most progressive in the world, but also enshrines property rights. While this was weakened in the final Constitution adopted in 1996, it still limited the ability of the state to expropriate property, embark on land reform and effect redistribution. (1998: 90-93)

Much of the state remained the same after 1994, but the political leadership changed. The TRC emerged at a time of victory for the liberation movement. However, Sparks reports of Mandela’s inauguration speech on May 10, 1994:

… there was no spirit of triumphalism. Reconciliation was the theme, and the voice of the new president, Nelson Mandela, slow and measured, boomed it out across the great crowd: “We enter into a covenant that we shall build a society in which all South Africans, both black and white, will be able to walk tall, without fear in their hearts, assured of their inalienable right to human dignity – a rainbow nation at peace with itself and the world”. (1994: 229)

Reconciliation was emphasised by the liberation movement from a position of victory. In this context, there was a perceived need amongst the liberation movement to embrace old enemies, the NP and IFP in particular – and to reassure white South Africans. A non- racial dispensation was created – and the ANC promised to pursue a focus on meeting

20 basic needs and further socio-economic transformation. (This will be dealt with in detail in Chapter 6.)

Within this context, the TRC went to great lengths to achieve a consensus which would allow the maximum participation in its operation, and acceptance of its work. Tutu writes: “I have been at great pains to demonstrate the Commission’s independence and lack of bias because we are concerned that its work and report should gain the widest possible acceptance.” (TRC, 1998: Vol. 1, Ch. 1, Section 60) task, because:

• The IFP opposed the TRC on the basis of, amongst other things, the need for plurality of truths, rather than one government-sponsored truth.

• The Freedom Front, a conservative Afrikaner party led by General Constand Viljoen, continued to argue for general amnesty and express concern about the likely lack of “even-handedness” on the part of the TRC.

• The leadership of the South African Police also opposed the TRC, arguing against individual amnesty on the grounds that the responsibility should rest with the political leaders who gave the orders. (Boraine, 2000: 52-60)

• The extreme right-wing, represented by the Afrikaner Weerstandsbeweging and the Afrikaner Volksfront, also opposed the TRC.

• The NP agreed to the TRC, and participated in its hearings on political parties. However, it consistently criticised the TRC for being “biased”, a “witch-hunt” focussed on individuals, and unnecessarily digging up the past. Former state president P.W. Botha refused to appear before the commission, despite repeated subpoenas.

• Black groups such as the Pan Africanist Congress (PAC) and the Azanian Peoples Liberation Army (APLA) opposed the TRC as a conciliatory exercise.

21 The TRC operated in a more general climate of consensus-building coming out of the negotiated settlement, as outlined in the postamble to the new Constitution:

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 pursuit of national unity, the well-being of all South African citizens and peace require reconciliation between the people of South Africa and the reconstruction of society.

The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.

These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not retaliation, a need for ubuntu11, but not for victimisation. (Government of South Africa, 1993: postamble)

Within this, morality emerged as an important ingredient in the TRC’s arguments about responsibility and accountability.

One example of this is how the TRC chose to consider human rights violations on all sides – with some distinction made on the basis of the “just war” doctrine. According to the “just war” thesis idea, the justness of the war itself must be evaluated, and then the justness of the means used in that war. Those who are fighting for a just cause are “under an obligation to employ just means in the conduct of this fight”. (TRC, 1998: Vol. 1, Ch. 4, Section 74) In this way, the TRC refuted attempts by defenders of Apartheid to lay claim to a “just war”, while also ensuring that abuses committed by the liberation movement were included. On this basis all sides could be found legally, as well as morally, responsible for their role in the past.

The TRC also sought to generate a legal and moral denunciation of the past. So, for instance, it labelled Apartheid a crime against humanity:

22 It has been stated that the Commission – as part of the international human rights community – affirms its judgement that apartheid, as a system of enforced racial discrimination and separation, was a crime against humanity. The recognition of apartheid as a crime against humanity remains a fundamental starting point for reconciliation in South Africa. (1998: Vol. 1, Ch. 4, Appendix)

And further: “Conceptually, the policy of apartheid was itself a human rights violation. The determination of an individual’s civil and political rights by a factor – skin colour – over which he or she has no control, constitutes an abuse of those rights.” (TRC, 1998: Vol. 1, Ch. 2, Section 22) Beyond this, it also stressed the generally immoral nature of the past system:

At the practical level, the vexed issue of apartheid as a crime against humanity impinges perhaps more directly on moral than on legal culpability. A simple focus on the criminal culpability of isolated individuals responsible for apartheid can ignore the broader responsibilities presently under discussion. (TRC, 1998: Vol. 1, Ch. 5, Section 104) [my italics]

The TRC’s emphasis on morality was also about building commitment to a new moral consensus in moving away from this past. Tutu outlines the hope for a new moral future, quoting the constitution:

Ours is a remarkable country. Let us celebrate our diversity, our differences. God wants us as we are. South Africa wants and needs the Afrikaner, the English, the coloured, the Indian, the black. We are sisters and brothers in one family – God’s family, the human family … Let us move into the glorious future of a new kind of society where people count, not because of biological irrelevancies or other extraneous attributes, but because they are persons of infinite worth created in the image of God. Let that society be a new society – more compassionate, more caring, more gentle, more given to sharing – because we have left “the past of a deeply divided society characterised by strife, conflict, untold suffering and injustice” and are moving to a future “founded on the recognition of human rights, democracy and peaceful co-existence and development opportunities for all South Africans, irrespective of colour, race, class, belief or sex.” (TRC, 1998: Vol. 1, Ch. 1, Section 91)

11 Ubuntu is roughly translated as “humaneness”, the idea that people are people through other people.

23 Despite this, during and after the TRC it became obvious that there were very different ideas in South Africa about responsibility for the past, and how this should be applied in terms of accountability.

Views on the TRC

From an analysis of the existing literature on the TRC and original interviews conducted with key informants, a number of opposing views emerge about responsibility and accountability in the South African social context, and what the TRC could and should have done to address these.

Most of the existing literature assesses the TRC within the broader experience of truth commissions worldwide, as a practical “model” within particular fields such as law, as an instrument for delivery of particular things such as healing or history, or within a general philosophical discussion of issues such as truth, justice, reconciliation, forgiveness and morality. Most of the literature is overwhelming positive in its assessment of the TRC. However, important criticisms have emerged, particularly in recent years as South African literature has begun to appear. (A literature review is included in Chapter 2.) In this literature and in discussions within and around the TRC, I argue that three main views have emerged about responsibility and accountability in relation to the TRC.

The “systemic view” is reflected in criticism along the lines of Mamdani (2000) – that the TRC should have done more to expose the systemic nature of abuse, the individuals and groups responsible for Apartheid, and outline a plan of systemic change. This view is related to the strong body of literature on the theory and history of Apartheid (and race and class) in South Africa from a Marxist or systemic perspective. (See Chapter 5.) It generally criticises the TRC’s moral approach as being overly individualised, and insufficiently specific about responsibility for the past. This view seems to suggest that the TRC could have named individuals, groups or things which were responsible in a “systemic” sense and therefore should be held accountable, but failed to do so. This view critiques the theoretical underpinnings of the TRC’s approach. However, it does

24 not consider in detail practically how the TRC could or should have done things differently, within it stated mandate.

In contrast to the theoretical focus of the “systemic view”, the “practical view” asserts the practical confines of the TRC’s mandate, and the limitations imposed by its context. This view generally defends the TRC’s emphasis on individuals – both in its amnesty process and its work with victims – and its emphasis on morality. While acknowledging that the TRC could have been better prepared and better organised, those who ascribe to this view argue that it did its best to bring in issues related to social context and collective responsibility, and could not have done more in establishing responsibility and accountability in a “systemic” sense.

The “procedural view” is a synthesis of the first two views – in that it agrees that more needed to be done in South Africa to establish the responsibility and accountability of individuals and collectives, but argues that it was not practical for the TRC to achieve all that was expected of it. The implication of this view is that the TRC should have concentrated on what it could achieve itself, within an ongoing and broader discussion and engagement with the issues of responsibility and accountability in South Africa. In this context, it targets the moral consensus-building approach of the TRC as it is seen as prematurely stifling this discussion. In line with the “procedural view”, what I will argue is that the TRC could not hope to please everyone or resolve all the debates around responsibility and accountability that it encountered. However, its emphasis on social context, collective responsibility and morality created some confusion over what it was trying to do and what could realistically be expected of it. This served to fuel anger and criticisms post-TRC.

In a detailed analysis of the TRC’s hearings and Final Report, I draw out how the theoretical points of debate outlined above, and these three opposing views, were present within and impacted on the TRC’s work.

25 Practical implications

The TRC hoped that its moral approach would promote a more general process where individuals and collectives accepted responsibility. However, its approach was heavily contested in the South African context. Even those appearing in its hearings often did not participate in the way the TRC hoped. As I will show, individuals testifying at the institutional hearings eschewed personal blame. Individual perpetrators blamed the system. Political leaders blamed the individual perpetrators. Other groups/institutions/individuals refused to appear. The TRC also made a moral argument for individuals and collectives to voluntarily hold themselves accountable. However, large-scale business and individual contributions to reparation were not forthcoming, and even the government’s response to its recommendations was disappointing. The TRC put forward reparation and socio-economic transformation as means of taking “collective accountability” for the damage caused. However, important questions about what change was needed, and who or what should pay, remained unresolved. After the TRC, the government refused to pay the reparation recommended. Eventually, in April 2003, the government announced that it would make a one-off reparation payment of R30,000 to each victim, costing R900 million in all. The TRC itself recommended an annual payment of R22,000 to victims (estimated to cost R3 billion). In addition, the delivery of the socio-economic transformation the TRC envisioned would accompany reconciliation has been slow. (See Chapter 6.)

Commentators have been unanimous in the view that there is still much to be done to achieve reconciliation post-TRC. What I believe that the existing literature and public discussion reveals is that there is no agreement on what the TRC’s role was within this. It was never up to the TRC alone to bring about reconciliation, for instance, or to resolve all issues of responsibility and accountability. The TRC was formally mandated to consider responsibility for gross human rights violations and make recommendations for reparation and change. As an institution which was limited in time, scope and resources it was impossible for the TRC to achieve everything that everyone expected of it. The TRC was only one institution and it had limited control over what happened afterwards.

26 The influence of important social distinctions and divisions which continued to exist post-Apartheid, and the direction of economic and social policy being pursued by the ANC, were much more important. (See Chapter 6.)

The TRC could not have resolved the theoretical and contextual debates it encountered around responsibility and accountability. However, its emphasis on social context and collective responsibility, and its moral approach, fuelled unrealistic expectations of its work – both in terms of what issues it could cover and what results could be expected. What I will argue is that this contributed to unrealistic expectations and a backlash of anger post-TRC.

Structure

This chapter has introduced the TRC itself, characterised its approach to responsibility and accountability, and outlined the main steps in the investigation being conducted.

Chapter 2 considers the existing literature on the TRC. The chapter also outlines the methodology employed in analysing the TRC. It outlines in detail the three main views I have draw out on the TRC in relation to responsibility and accountability.

Chapter 3 includes a closer investigation of the theoretical issues involved in discussing responsibility and accountability.

The purpose of Chapter 4 is to begin to look at how theoretical and contextual debates were present within and impacted on the TRC’s work. In particular, this chapter looks at the issue of the responsibility of individual perpetrators and state institutions – both within the TRC’s hearings and in the formulation of the findings contained in the Final Report. It also considers the practical implications of the difficulties the TRC encountered in its discussion of responsibility and accountability – in terms of the impact on public perceptions of these aspects of the TRC’s work.

Chapter 5 looks at how theoretical and contextual debates were present within and impacted on the TRC’s institutional hearings and in the formulation of the findings contained in the Final Report. Given that the hearings on business and labour have so far

27 been central to debates about how the TRC dealt with collective responsibility, it was felt that a more detailed analysis of these hearings would be most relevant and useful. The chapter also considers the practical implications of the difficulties the TRC encountered in its discussion of responsibility and accountability – in terms of the impact on public perceptions of the TRC.

Chapter 6 looks at the issue of accountability – how theoretical and contextual debates were present within and impacted on the TRC’s recommendations contained in the Final Report. It also considers debates and difficulties the TRC encountered in drawing out the damage caused by abuse (particularly in its human rights violations hearings), and in discussing what change was needed. The chapter draws out the practical implications all of this had in terms of the impact on public perceptions of the TRC.

In Chapter 7, the conclusion, I return to each of the main steps in the investigation, and particularly the main argument around the impact of theoretical and contextual debates on the TRC’s work and how it was perceived.

28 Chapter 2: Analysing the TRC

The extraordinary nature of the TRC, the huge volume of research and analysis involved, and the wide-ranging discussions that it prompted in South Africa and internationally, have resulted in a significant body of writing. The purpose of this chapter is to conduct a review of the existing literature on the TRC as a means to locating the investigation being conducted here, and to outline the methodology employed in analysing how theoretical and contextual debates were present within, and impacted on, discussions within and around the TRC. In the following chapter, I consider in detail the theoretical literature and debates raised around the concepts of responsibility and accountability.

Truth commissions

Towards the end of the twentieth century, truth commissions have come to the fore as a means of investigating the past and considering the future in societies divided by violent conflict and marked by human rights violations. This has been prompted partly by the failure of previous attempts at prosecution for massive atrocities and war crimes, and partly by the recognition of the need for extra-judicial structures to address the past more broadly, promote healing and discuss ways of going forward. Twenty commissions have been held over the last twenty-five or so years. The most famous of these have been held in Latin American countries such as Chile, El Salvador, Argentina and Guatemala. Other less publicised commissions have been held in Chad, Uganda, the Philippines and Sri Lanka. (Hayner, 2000: 34) The majority of the literature on truth commissions in general

29 deals with Latin America, but the TRC is often looked upon as the zenith of truth commissions.

There were a number of unique features of the TRC, compared to other truth commissions around the world. It was the largest commission in terms of staff and budget that had ever been created. It was also the most public in terms of participation and discussion. The hearings were open, and broadcast through the media. The TRC writes:

A distinctive feature of the Commission was its openness to public participation and scrutiny. This enabled it to reach out on a daily basis to large numbers of people inside and outside South Africa, and to confront them with vivid images on their television screens or on the front pages of their newspapers. People saw, for example, a former security police officer demonstrating his torture techniques. They saw weeping men and women asking for the truth about their missing loved ones. The media also helped generate public debate on central aspects of South Africa’s past and to raise the level of historical awareness. The issues that emerged as a consequence helped the nation to focus on values central to a healthy democracy: transparency, public debate, public participation and criticism. (1998: Vol. 1, Ch. 5, Section 6)

The TRC had more significant powers of subpoena, search and seizure than other truth commissions, and even established its own witness protection program. (TRC, 1998: Vol. 1, Ch. 4, Sections 25-30) It had the power to grant amnesty to individual perpetrators. This is in contrast to the blanket amnesty that was granted in other countries in Latin America and Africa. The TRC writes:

No other state had combined this quasi-judicial power with the investigative tasks of a truth-seeking body. More typically, where amnesty was introduced to protect perpetrators from being prosecuted for the crimes of the past, the provision was broad and unconditional, with no requirement for individual application or confession of particular crimes. The South African format had the advantage that it elicited detailed accounts from perpetrators and institutions, unlike commissions elsewhere which have received very little co-operation from those responsible for past abuses. (1998: Vol. 1, Ch. 4, Section 25)

Hayner’s (1994, 1996) writing is influential in the literature on truth commissions – particularly her work on comparisons between commissions and on formulating

30 international guidelines for minimum standards to which such commissions should adhere. Shea (2000), for example, has sought to measure the TRC according to an interpretation of Hayner’s guidelines. Hayner argues that the unique features of the TRC which received the most attention internationally were the public hearings, its powers to grant amnesty, and the emphasis on national healing and reconciliation. (2000: 34)

Other literature has analysed the South African TRC as a successful “model”. From its beginnings, the South African TRC has been drawn upon to inform other truth and reconciliation initiatives internationally. Countries where aspects of the South African commission have been considered and discussed include Rwanda, Sierra Leone, Nigeria, Lesotho, Cambodia, Indonesia and East Timor. In Australia and the United States, the TRC has been drawn upon to strengthen arguments and suggest models for tribunals and reparation. The TRC’s general approach to reconciliation is also used as an example internationally.

Within this, the TRC is mostly dealt with as a positive example of a practicable policy option, or placed within a general philosophical discussion of issues such as truth, justice, healing, reconciliation, forgiveness and morality. (Minow, 1998; Rotberg and Thompson, 2000) The TRC is also dealt with in literature focussed on transitional justice (Dugard, 1997; Crocker, 2000), restorative justice (Kiss, 2000), and theology/ethics (Graybill, 1999). Others have been interested in the TRC as an international model or as a source of “lessons” in particular fields, such as law (Goldstone, 1996; Dugard, 1997; Dugard, 1997a). However, others writing in the fields of psychology (Hamber, 2001; Allan and Allan, 2001) and history (Nuttal and Coetzee, 1998; Bundy, 2000) have tended to be more critical of the TRC’s work in delivering healing and a historical record.

While there are useful aspects of the TRC process that could be applied in other countries, the operation of the South African TRC cannot be seen in social or historical isolation and could not be easily replicated. At a certain point it even becomes nonsensical to compare different processes – because they occur in, and are affected by, very different contexts. For instance, the South African commission is an inspiration to

31 those in Australia who support reconciliation and wish to see the country deal with its colonial past. However, Australia has a relatively small indigenous population compared to South Africa; it has not undergone a political revolution; and the political will does not exist to even publicly apologise for past human rights abuses against indigenous people. Ridgeway writes that: “the road to reconciliation in Australia … remains blocked and blurred by the failure to honestly and openly confront stories of lived experience”. (2000: 13) TRC Commissioner Alex Boraine stated at the opening of the Australian Reconciliation Convention in Melbourne in 1997:

It is wrong to simply say, “Turn the page”. It is right to turn the page, but first you have to read it, understand it and acknowledge it. Then you can turn the page … I find it breathtaking that a government can refuse to acknowledge the damage that was done, the damage that continues. (quoted in Durbach, 2001)

This failure is at least partially motivated by a fear of becoming liable for compensation and reparation.12 Despite a reconciliation convention, the establishment of the Australian Reconciliation Council, and massive demonstrations for reconciliation after this council handed down its final report in late 2000 – the suffering of the victims of Australia’s colonial past remains unacknowledged and unaddressed.

The context within which the TRC emerged set the basis for the legislation that formed the TRC, but perhaps more importantly it set the basis for many of the discussions and decisions within the TRC about how to carry out its work and to view its role. Chapman and Ball write:

While truth commissions are often portrayed as generic bodies, they have very different approaches to the kind of “truth” they are seeking. Their official mandates, the perceptions and priorities of their commissioners and key staff, the methodological orientations utilized, and the level of resources available all shape the nature of their findings and the type of report they produce. In addition, decisions made by those working within a specific truth commission, sometimes

12 As an alternative, the Liberal government in Australia since 1996 has opted for an approach of “practical reconciliation” – which it argues entails funding programs for things such as Aboriginal education and housing. In fact, funding to the Aboriginal and Torres Strait Islander Commission and to other indigenous programs such as the Abstudy income support program has been cut since 1996.

32 without an understanding of their implications, often have important consequences for truth-finding. (2001: 4)

It is not a central aim of the thesis to develop on the literature on truth commissions in general, or on the TRC as a “model”. My aim is to investigate the debates which arose in theory and in the South African social context around responsibility and accountability, and how these played out within and around the TRC.

An important thing to note about the literature considered above is that most of it is overwhelmingly positive. The South African transition in general was perceived as a great success story in contrast to numerous other transitions world-wide. However, important criticisms have emerged, particularly in recent years as South African literature has begun to appear.

Contextual literature

In line with the optimism and praise present in the international literature, most of the initial commentary on the TRC within its South African context was positive.

The first publications to appear about the TRC, by Boraine, et. al., were Dealing with the Past: Truth and Reconciliation in South Africa (1994) and The Healing of a Nation? (1995). These discussed the process of setting up the TRC and the thinking behind it. (This subject matter was reprised in more detail in Boraine’s later book, which is covered below). Reconciliation Through Truth (Asmal, et. al, 1997) is the first book assessing the TRC process which appeared after it began, but before it produced its report. Written by Kader Asmal (minister in the ANC government and influential in formulating the TRC), Louise Asmal and Ronald Suresh Roberts, the book is an argument for the TRC from a legal perspective as a means of facing the past and rebuilding a moral, ethical culture. Next to emerge was the influential Country of My Skull (1998). As a journalist working on the TRC, Antjie Krog produced this moving and very informative account. While capturing brilliantly the mood and exceptional experience of the TRC, and some of the internal wrangling that happened behind the media glare, this is more of a literary contribution. After the TRC, contributions by TRC

33 commissioners were the first to appear. These were generally a mixture of memoir and argument in defence of the TRC. Desmond Tutu’s No Future without Forgiveness (1999) outlines and defends its moral/therapeutic approach. Piet Meiring’s Chronicle of the Truth Commission (1999) and Wendy Orr’s From Biko to Basson (2000) add to the picture of what happened but do not provide a sustained analysis or critique.

After the TRC, critical accounts did begin to appear. Anthea Jeffrey’s The Truth About the Truth Commission was one of the first. This was focussed on technical criticisms in relation to the TRC’s claims to be factual, independent and comprehensive. (1999: 7) One of Jeffrey’s main concerns is the methodology of establishing responsibility – questioning the status of victim statements as “evidence”, for example. Other critical accounts were contained in two important edited compilations produced two years after the Final Report in an attempt to promote debate around the impact and aftermath of the TRC. After the TRC (James and van de Vijver: 2000) was compiled mostly from presentations to a conference held in Cape Town in August 1999. Looking Back, Reaching Forward (Villa-Vicencio and Verwoerd: 2000) was compiled by TRC researchers and academics Charles Villa-Vicencio and Wilhelm Verwoerd. Contributors include academics (South African and international), former TRC commissioners, judges, parliamentarians and government ministers, journalists, religious figures, victims who participated in the TRC, and others involved with similar commissions and processes internationally. In this body of literature on the TRC, criticisms of the TRC process and its results began to appear. Authors such as Wilson (2001) have added to criticisms of the way the TRC formulated, discussed and carried out its work. An edited collection by Posel and Simpson (2002) also brings together a range of critical papers assessing the TRC’s portrayal of the past, presented at an earlier History Workshop conducted at the University of the Witwatersrand. A number of these have been drawn upon in the thesis.

One of the strongest themes overall in the literature has been the “unfinished business” of the TRC. Commentators have been unanimous in the view that there is still much to be done to achieve reconciliation post-TRC. However, what I believe that the existing

34 literature and public discussion reveals is that there are important disagreements over the TRC’s role – what it could and should have done. This is particularly evident when one considers criticisms which have emerged. In further research, what I hoped to draw out were what I saw as important ambiguities around the concepts of responsibility and accountability themselves, and the TRC’s role in establishing these.

Methodology

My initial interest in divergent views on the role of the TRC more generally (in portraying the past, making findings and promoting change) led me to a more focussed interest on theoretical and contextual debates around responsibility and accountability – and on how these were present within and impacted on the work of the TRC, and how it was perceived. In conducting this investigation, I have drawn upon a number of sources.

The TRC’s work

In analysing how responsibility and accountability were dealt with within the TRC’s own work, a vast amount of empirical material is available. Its Final Report is available in full. All hearings were transcribed and available over the internet. My focus on the material available through the hearings was driven by the concept of unobtrusive research (Kellehear, 1993) – i.e. exhausting the possibilities of existing data before embarking on my own research. (This was particularly relevant in relation to drawing out the views of victims of human rights abuse.) The added advantage of looking at the TRC’s hearings is that these were central to the public impact of the TRC, and debates around it. More people in South Africa are likely to have seen at least part of a hearing than read the Final Report (consisting of five large volumes). In utilising the material from the hearings, it is important to note that my purpose is to draw out the range of views expressed on responsibility and accountability, rather than marshalling testimony as “fact” in making an argument about who or what was responsible or should have been held accountable. My interest is in drawing out debates around the deeply-contested issues of responsibility and accountability and looking at how these impacted on the TRC, and perceptions of the TRC.

35 In line with my focus on responsibility and accountability, an examination of selected amnesty hearings, the political party hearings and the hearings into the State Security Council was included. The amnesty hearings began in 1996 and concluded in 2001. Transcripts of 50 hearings were analysed. (A list of transcripts analysed is included in Appendix A.) I had a specific interest in representing a selection of what perpetrators themselves had to say about responsibility – and how the commission responded. I have included testimony from white and black members of the security forces, and from members of the liberation movement. I have included hearings relating to abuses committed in metropolitan, rural and homeland areas. I have included some of the high profile cases that received public discussion.

I have included an analysis of the political party hearings for both the National Party and the ANC. Unfortunately, the transcripts of the first hearings where parties presented their submissions were not available. However, transcripts are available of the hearings where they were recalled by the commission, May 12-16, 1997 in Cape Town. (Details of the hearings are included in Appendix B.) In order to delve further into the question of state responsibility, I have included an analysis of the hearings into the State Security Council. (Details of the hearings are included in Appendix C.)

I have also included an examination of the institutional hearings. All the TRC’s institutional hearings were recorded, transcribed and posted on its website. (Details of the hearings are included in Appendix D.) Given that the hearings on business and labour have been central to debates about how the TRC dealt with social context and collective responsibility, it was felt that a more detailed analysis of these hearings would be most relevant and useful. The hearings on business and labour were held from November 11-13, 1997 at the Carlton Hotel in Johannesburg. Numerous different businesses, chambers of commerce for different industrial sectors and population groups, trade union representatives, non-government organisations and academics made written submissions. Based on these a three-day hearing was constructed with selected representatives. While the hearings included an investigation into unions and business, they came to be predominantly focussed on a discussion of the role of business. The

36 hearings themselves were analysed, along with some of the written submissions. However, an analysis of the public hearings was chosen as the main focus because these are what received media coverage and public attention.

I have also included an analysis of the findings and discussion contained in the TRC’s Final Report, particularly as these correspond to the hearings outlined above. A focus on accountability also necessitated looking at the range of comprehensive recommendations for reparation and change contained in the Final Report. In pursuing further how debates around responsibility and accountability impacted on discussions within and around the TRC, I have also drawn on my own research.

Contextual debates

I conducted a fieldwork trip to South Africa in May/June 2002. During my fieldwork I conducted a series of interviews with commentators that it was felt could reflect on the TRC process itself, but also make assessments and provide analysis of the TRC in retrospect. It was not within the scope of the thesis to conduct a thorough examination of broad public opinion on the TRC – although this has been included to some extent through data from opinion polls on reconciliation and the work of the TRC. It was felt that others had conducted substantial studies of community attitudes (white and black), which could be drawn upon. There was also a range of literature on the TRC which could be drawn upon. Some of those selected for interviews had written on the TRC previously or publicly commented on it. However, it was felt that this study could expand on this literature.

In collecting data, my feeling was that there was an ambiguity over the role of the TRC, so my respondents were selected from those who were likely to be articulate in expressing that ambiguity. For this reason, I selected people who had expressed strong views on the TRC in this regard. This resulted in a bias towards those who were critical (to varying degrees) of the TRC’s role. This bias was unavoidable in that it was important to the study to draw out divergent views on the TRC. My selection of respondents was also biased towards those who wanted the TRC to have a role in

37 responsibility and accountability (as opposed to those who didn’t) and towards people participated in, or conducted research and analysis on, those areas of the TRC’s work which were more concerned with these issues. Out of this, my argument began to develop around how theoretical debates around these issues inter-mingled with a range of other contextual factors, including individual and collective interests, motives and political perspectives. By selecting respondents from important institutional/community locations it was felt that a wider range of representative views could be collected. This was important in that there are a range of institutions in South Africa which are strongly embedded in communities – particularly amongst the black population – given the history of mass political organisation and struggle. Later in the chapter, I will outline the three main views on the TRC which emerged as a direct result of this approach.

Respondents were drawn from two main groups – those intimately involved in the TRC process and those observing it (from close quarters or from afar).

The first group is made up of commissioners, committee members, investigators and researchers who worked for the TRC, and some victims who participated.

TRC participants

Commissioners were selected through a national process aimed at producing a “representative” group. Within this group, and the broader category of those who were intimately involved in the TRC, respondents have been selected from different “racial” groups and genders – factors which it was felt were significant in shaping the experiences and views of respondents. It was difficult to locate and talk to commissioners, as interest in the TRC internationally has meant that some have taken up other busy posts overseas and in South Africa since the end of the TRC. A number replied that they could not participate directly but that their views were adequately represented in their writings – to which I have had access.

TRC Commissioners Wendy Orr, Yasmin Sooka and Dumisa Ntsebeza were interviewed. All three had been prominent in public debates post-TRC. Dr Wendy Orr served as the Deputy Chair of the Reparation and Rehabilitation Committee of the TRC,

38 and was the main facilitator for the TRC’s hearings into the health sector. As a medical doctor, Orr was involved in attempts to prevent torture of detainees by the Apartheid state. While generally supportive of the need for a process like the TRC, Orr has been heavily critical of the results – particularly in relation to reparation. (2000) Yasmin Sooka served on the TRC’s Human Rights Violations Committee, and its Legal Sub- Committee. She served on the committee established by the TRC to compile a codicil to the Final Report, once the amnesty process had been completed. Sooka has similarly been critical of the lack of follow-up by the government on the TRC’s recommendations. Sooka has a legal background and was Director of the Foundation for Human Rights in South Africa. Dumisa Ntsebeza was head of the TRC’s Investigation Unit. He was a prominent human rights lawyer and anti-Apartheid activist. Ntsebeza has been an advocate for addressing the “unfinished business” of the TRC (2001), and also served on the committee established by the TRC to compile a codicil to the Final Report. Russel Ally, a member of the TRC’s Human Rights Violations Committee, was also interviewed. Ally was involved in preparing the business and labour hearings. Ally has a background in economic history, and pursued this through the hearings – pushing the need to take a more “systemic” view.

The commissioners were the public face of the TRC, but it was felt that the experience of investigators and researchers (the “foot-soldiers” of the TRC) was also important to include. Piers Pigou was part of the TRC’s Investigation Unit in Gauteng. He worked on Winnie Mandela case, and is a researcher at Centre for the Study of Violence and Reconciliation (see below) on their Violence and Transition Project. He has been heavily critical of the TRC, particularly in terms of its “unfinished business” in relation to amnesty. (2002) Pigou has criticised the failure to follow-up with prosecutions and investigations where amnesty was not sought. Zenariah Barends was head of the Investigation Unit in the Western Cape, and worked there with Zenzile Khoisan. Barends and Khoisan (2001) have taken a critical view of the TRC’s work in establishing responsibility, based on their experience. Their unit was the first to search a military base, and ran into a large degree of controversy in its investigations of security structures. Unfortunately, I was unable to directly interview any researchers.

39 In terms of representing the views of victims, I interviewed people who have worked closely with victims, including a number involved with trauma counselling. Lazarus Kgalema is a clinical psychologist working at the trauma clinic run by the Centre for the Study of Violence and Reconciliation in Johannesburg. He works in victim empowerment and trauma management, and is also researching victim-perpetrator dialogue within the TRC. Margaret Green was a trauma counsellor at the Trauma Centre for Survivors of Violence and Torture in Cape Town. These organisations have both been centrally involved in lobbying the TRC and advocating in relation to victim needs and supporting victim empowerment during and after the TRC.

The victims I interviewed were ones I felt could comment on the experience of victims more generally. In particular, these were drawn from the Khulumani Victim Support Group. This group has been vocal in campaigning for the implementation of reparations and working with victims at a community level. Thandi Shezi, Khulumani project manager, testified at the TRC’s women’s hearings. Duma Khumalo testified at the TRC’s human rights violations hearings and the prison hearings. Sarah Mthembu was a founding member of what became the Alexandra Civic Organisation who testified at the TRC’s human rights violations hearings in Alexandra. The questions I asked them related to their views and feelings about the TRC process now – not about their own past experience of abuse. It should be noted that victim advocates have tended to be very critical of the TRC, and this is not necessarily representative of all victims – although such groups do represent an important range of victim concerns.

To get around this, and further investigate the views of victims, I also conducted a large- scale analysis of the human rights violations hearings. However, most of this data has not been included, as my interest became focussed around those aspects of the TRC which dealt more directly with responsibility and accountability. Their relevance in terms of drawing out what damage had been caused by abuse, and therefore what change was needed to ameliorate this, will be covered in Chapter 6.

The hearings began in April 1996, and were held in around 70 locations in metropolitan and remote communities. Most hearings went for a few days, with 20 to 60 victims

40 testifying. The transcripts of every testimony were gathered and posted on the TRC website. An analysis of the transcripts of 200 testimonies by victims before the TRC was undertaken. (A list of transcripts which were analysed is included in Appendix E.13) The testimonies I selected come from hearings conducted by all four regional TRC offices in Johannesburg, Cape Town, Durban and East London. They include cases from inside and outside South Africa, from the main regions and the homelands. However, as I was interested in the public impact of the hearings I chose mostly metropolitan hearings and included most of the high profile cases that received public discussion. The testimonies I selected include victims from each of the Apartheid-enforced “racial” groups, victims of state violence (both random and directed), victims of the liberation movement (both white and black), and victims of “internal” strife in the townships.

Various other writings on the views and experiences of victims were also consulted. Examples include studies by Hamber (2000) on victims’ attitudes to reconciliation and the TRC, and Crawford-Pinnerup (2000) on the effects of urgent interim reparation. Other unpublished works include Colvin (2001), Kayser (2001) and Kgalema (2002).

Observers and commentators

The second group of key informants includes other observers and commentators – including representatives of non-government organisations (NGOs), academics and political parties.

An important NGO which has been influential in research, public commentary and criticism of the TRC is the Centre for the Study of Violence and Reconciliation. A number of CSVR staff were interviewed. Polly Dewhirst was a senior researcher in the CSVR’s Transition and Reconciliation Program. She worked for the TRC as a coordinator of a project to compile a human rights violation database, as preparatory

13 The web pages of all the victim testimonies are also included in the bibliography. To give some context to quotations, some details of each case are included in footnotes. The complications of translation and transcription produced numerous inaccuracies. Sometimes names and dates of testimonies are recorded incorrectly. When quoting the transcripts, I have edited them slightly to allow better understanding. However, certain grammatical errors remain.

41 work for the commission. She also chaired the South African NGO Coalition on the TRC which lobbied for transparency and a victim-centred approach for the TRC. She works on researching disappearances of people under Apartheid, and supporting families. Hugo Van Der Merwe was a Project Manager in the CSVR’s Transition and Reconciliation Department. He has written extensively for the CSVR on the TRC from the perspective of conflict resolution and transitional justice. Thloki Mofokeng was the manager of the CSVR’s Transition and Reconciliation Program, and has written specifically on reparations. (Hamber and Mofokeng, 2001) Carnita Ernest was a researcher with the CSVR on victim’s perspectives on reconciliation. The CSVR has also worked closely with the Khulumani Victim Support group. The Institute for Justice and Reconciliation has also been influential in the discussion after the TRC. The IJR has commissioned a range of research on reconciliation after the TRC. Fanie Du Toit, from their Reconciliation and Social Reconstruction portfolio, was interviewed. Former political prisoner Dennis Brutus had also been vocal in campaigning for reparations, with the group Jubilee South Africa. These groups have been heavily critical of the economic policy pursued by the ANC.

A range of intellectuals and other commentators who had researched and analysed the TRC were also included. Deborah Posel, from the Wits Institute for Social and Economic Research at the University of the Witwatersrand, organised the “The TRC: Commissioning the Past” conference held in Johannesburg in 1998. This resulted in a volume edited by Posel and Simpson (2002). Tom Lodge works at the School of Politics at the University of the Witwatersrand. He has written extensively on South Africa politics (historical and contemporary). (Lodge, 2002) Sheila Meintjes worked at the Commission for Gender Equality, and contributed to a submission on gender issues presented to the TRC. It was felt that a gender perspective was important to include. Patrick Bond from the Graduate School of Public and Development Management, University of the Witwatersrand, has produced a range of work analysing the political economy of post-Apartheid South Africa. (1999) He has also researched the TRC’s business and labour hearings. Dale McKinley is a community activist and author on the ANC (1997). Andre Du Toit, Head of Political Studies at the University of Cape Town,

42 has also written extensively on the TRC. (2000) Along with Alex Boraine, he was influential in the discussion about setting up the TRC.

In terms of political parties, I approached the ANC for an interview and was referred to Cedric Mayson, national co-ordinator of the ANC’s Commission for Religious Affairs. Mayson participated in the TRC’s hearings in faith communities. Jeremy Cronin from the South African Communist Party has commented publicly on the TRC within the more general context of the transition (1994), and more specifically on reparation and the business and labour hearings. He is deputy general secretary of the SACP, an ANC MP and sits on the ANC National Executive Committee. Neil Coleman was the head of the parliamentary office of the Congress of South African Trade Unions. COSATU contributed strongly to the TRC’s business and labour hearings. (1997) Themba Godi was the national organiser of the Pan Africanist Congress. The PAC opposed the TRC as a conciliatory exercise.

The eventual list of respondents (Appendix F) varied from my initial list, due to lack of availability and suggestions made by respondents about other useful people to interview. However, given that many respondents were drawn from institutional bases – NGOs or political parties – it was often easy to find an alternative.

An interview guide was drawn up with a range of questions grouped under particular themes. (Appendix G) This asked for some fairly broad assessments of the TRC and its work – with a focus on clarifying and drawing out views on the role of the TRC. What emerged strongly in an analysis of the interviews was the confusion and disagreement over the role of the TRC – and I became interested in looking at debates around responsibility and accountability as a way of analysing this material. The exact questions and order of questions varied substantially in the interviews. However, each of the major themes was touched upon in every interview. Most of the interviews went for around an hour, though some were shorter – mostly the higher-profile respondents who did not have an hour available and some of those who had not been directly involved in the TRC.

43 I introduced myself as a research student from Australia, but that I had been born in Johannesburg and was coming back to learn more about South Africa. This seemed to put people at ease, and establish rapport. However, each of the major themes was touched upon in every interview. Most of the interviews went for around an hour, though some were shorter – mostly the higher-profile respondents who did not have an hour available and some of those who had not been directly involved in the TRC. Respondents were initially asked how they had become interested in the TRC, or what their involvement had been, however indirect. This helped to draw out their particular expertise and often led to a long and fruitful exchange. This was a particularly important device given the wide range of people interviewed, and their varying degrees of involvement with the TRC.

During the time of my fieldwork, president Thabo Mbeki granted a pardon to 33 imprisoned ANC and PAC operatives (20 of whom had been denied amnesty by the TRC), on the recommendation of the Department of Justice. Given that no reparation payments had been mooted at this stage, it is likely that this influenced the critical response of many respondents. It perhaps made it easier to gain access because people wanted to talk. However, it made it harder to obtain an interview from the ANC. When I assured them that I would not be conducting a “hard journalistic interview” they were less suspicious and eventually quite helpful. In addition to the interviews, I engaged as many people as possible in conversation about the TRC – people I met in passing or while waiting for an interview. A small number of these conversations have been included as data.

An analysis of these interviews, together with an analysis of the existing literature, led to my characterisation of three main views on responsibility and accountability and the role of the TRC in establishing these. Again, in utilising the material from my interviews, it is important to note that my purpose is to draw out debates and divergent views, rather than marshalling “facts” in making an argument about who or what was responsible or should have been held accountable. My purpose is to prove that debates existed, both in

44 theory and in the South African social context, and to draw out the impact these had on the TRC’s work and the discussion around it.

Views on the TRC

In developing and carrying out its approach, the TRC faced the complex task of responding to the needs of those it dealt with directly (victims) as well as what was demanded of it more broadly by other social actors and commentators.

Expectations of the TRC amongst victims in relation to responsibility and accountability were many and varied. Many wanted to know who was individually responsible. Hamber and Wilson write that, in terms of healing, “labelling responsibility can appropriately redirect blame towards perpetrators and relieve the moral ambiguity and guilt that survivors feel”. (2002: 38) However, beyond this, other victims wanted to understand the context – and who was responsible more broadly:

I want to know why David in particular was killed. What are the reasons that somebody decided that he should be killed? And I want to know who it was who made that decision. I’m a lot less interested in the people who were in the car and who pulled the trigger. (Maggie Friedman for partner/comrade David Webster, testified in Johannesburg, May 3, 1996)14

Other victims expressed the feeling that knowing more about the time and what individual perpetrator’s motivations might have been, helped in the process of putting things to rest. However, the following sorts of statements were mostly made by white victims.

Now it becomes more clear to me what was really going on ... and I can see the viewpoint of the liberation movement as well, which they held to bring about what we are experiencing in this new South Africa of ours, and that it cost us all to be liberated. So therefore I don’t bear any grudges against anybody for what

14 David Webster, a well-known human rights activist, was gunned down outside his home in Johannesburg in 1989.

45 happened, although I was a victim of it, but I understand now. Before I didn’t, no. (Gregory Beck, testified in Johannesburg, April 29, 1996)15

Lazarus Kgalema, a clinical psychologist working with victims, says that expectations were mixed:

Some were activists, famous victims – they already understood the intricacies of the system. Others did not have a chance to get a formal education, were not politically involved – they didn’t understand the system but they understood localised pain. Some will want to know what happened, the name of who did it, who gave orders. There were different layers of understanding. (interview conducted May, 2002)

In addition, political parties, organisations linked to different communities, and intellectuals of different theoretical persuasions were influenced by different individual and collective interests, motives and political perspectives. Through an analysis of the existing literature and my own research material, I developed a characterisation of three main views on the TRC in relation to responsibility and accountability.

1) The “systemic view”

The “systemic view” tended to be expressed by representatives of political parties, intellectuals and non-government organisations associated with the broad liberation movement. It is reflected in criticism along the lines of Mamdani (2000) – that the TRC should have done more to expose the systemic nature of abuse, the individuals and groups responsible for Apartheid, and outline a plan of systemic change.

Mamdani originally raised what became a well-known critique of the TRC’s overall framework – that it produced a focus on an individualised victim/perpetrator dichotomy and failed to explore the systemic victim/beneficiary dichotomy. (2000: 60) Mamdani has been a vocal critic of the TRC’s mandate – dealing with “gross human rights violations” committed between 1960 and 1994. He argues that the TRC focussed on a tiny minority of cases – mostly consisting of the worst cases of violence by state agents

15 Gregory Beck, a policeman, was injured in a politically-motivated attack in 1988.

46 against political activists. He argues that a focus on “illegal” activity under Apartheid obscured the massive human rights abuse which occurred “legally”. (2000: 60) In his view, the TRC should have given more attention to the structural inequality that had marked South Africa’s past, and the social change needed to address it. Others have also argued that the TRC’s approach individualised and distorted the “truth”. Wilson draws on a critique of the hearings in Alexandra to argue that they “only presented a sequence of individualized victims, as opposed to a richly complex and layered history of a state of war”. (2001: 50) Others agree that the TRC’s focus on individuals distorted the discussion of the past. Sheila Meintjes from the Gender Commission, who was involved in preparing a submission to the TRC on gender issues, states:

The Act itself defines human rights abuse in individual terms. It doesn’t look at the systemic aspects of Apartheid which shaped everybody’s lives. That is a serious, serious flaw. Unfortunately the team who drew up the report were not sufficiently versed in the theory of how patriarchy and capitalism are structurally related to racism and Apartheid. We were part of an intervention for the TRC to see itself in a broader light. It was about coming to terms with Apartheid. I don’t think this was brought out enough. (interview conducted May, 2002)

Community activist and author on the ANC, Dale McKinley, says:

From the point of view of the nation there was the need for social and political healing that goes beyond the individual. While I accept that individual healing is important, the focus on the individual seemed to obscure some of the structural issues and it is in its failure to address structural issues that the TRC failed. (interview conducted April, 2002)

The TRC sought to uncover the responsibility of various collectives in relation to human rights abuses, and to address the influence of the social context within which abuses occurred. However, the analysis and picture of the past produced in its Final Report and the special and institutional hearings are the subject of much criticism. For instance, Mamdani and Terreblanche (2000) argue that the TRC’s institutional hearings on business and labour failed to adequately take into account, expose or make recommendations to address the socio-economic context within which past abuses were perpetrated and within which reconciliation was supposed to occur.

47 According to the “systemic view”, while the end of formal discrimination was important, the historical legacy of racial oppression and continuation of class relations has meant that massive inequality has persisted, predominantly along race lines. For instance, Sampie Terreblanche reminded in his summary remarks to the TRC’s hearings into business and labour:

Let us picture for ourselves two groups of South Africans: on the one hand, the million richest people, mainly white South Africans with their learned tax advisors; on the other hand, the poorest 20 million South Africans, mainly Africans, people living in poverty and depravation. Although the two groups are standing in many ways miles apart, their past, their present and especially their future are structurally more closely linked than many business people were prepared to acknowledge during this week. (testified at business and labour hearings, Johannesburg, November 13, 1997)

Community activist and author on the ANC, Dale McKinley, says:

Within the international attention that was paid to the transition and the TRC, it was assumed that the transition effectively dealt with Apartheid. This is totally false. The TRC reflected the more general failure to deal with Apartheid in political and economic terms. The transition and institutions like the TRC did not deal with the reality of the past under Apartheid, or the reality of the present (where many of the day to day experiences of Apartheid still haven’t gone away). (interview conducted April, 2002)

In this sense, such critics are arguing that the TRC’s approach to responsibility and accountability failed to adequately identify the structural causes of abuse, the role of important collectives within this (such as business) and their accountability in terms of ameliorating the damage caused.

Those who lean towards this view also criticise a consensus approach based primarily on morality. Wilson (2001) argues that the requirements of “nation-building” and the need to legitimate the new state heavily influenced the version of reconciliation used by the TRC. He argues that this meant that the TRC failed to produce an adequate picture of the past. It was more concerned with creating a consensus on the immorality of past gross human rights violations, than exposing the system which produced such acts (and the large amount of other “legal” violent and oppressive acts).

48 Others question the usefulness of appealing to morality in general as a way to deal with the past. Manager of the CSVR’s Transition and Reconciliation program, Thloki Mofokeng says:

Tutu and others took a religious approach. But we did not have a religious conflict in South Africa. We had a political conflict. You shouldn’t preach reconciliation from a religious perspective – despite the fact that we are a very religious county. It wasn’t a religious problem. (interview conducted May, 2002)

In addition, some of those who lean towards the “systemic view” tend to argue that the TRC portrayed a false equality in terms of abuse. Some are not happy with the way that the TRC weighed up and dealt with abuses committed on both sides. They argue that the TRC adopted an “artificial even-handedness” and that this compromised its operation and the extent to which it placed responsibility and accountability where they were due.

For instance, former political prisoner and campaigner for Jubilee South Africa, Dennis Brutus, says: “[Its] biggest contradiction was that you treated the man who defended himself as the burglar who was breaking in, as the moral equivalent to the burglar, as equally morally reprehensible – which is ridiculous.” (interview conducted May, 2002) National organiser of the PAC, Themba Godi, says:

The TRC was intensely debated in the PAC. We were presented with a situation where the government was not going to give amnesty to our members unless they appeared. The only way out of prison, or being hunted down, was the TRC. But we had serious misgivings with the TRC as it was constituted. Our members who had fought against the regime and been arrested were on equal footing with those who defended Apartheid. They were supposed to confess their crimes and plead forgiveness. That was inconceivable for us. But we wanted our members to be free. So we ultimately, but reluctantly, agreed to encourage our members to appear, go through the humiliation, and see what happens. But we still saw it as a betrayal. (interview conducted May, 2002)

Cedric Mayson, national co-ordinator of the ANC’s Commission for Religious Affairs, states:

The objection from the ANC side is that it is quite impossible to class the atrocities committed by the oppressors (which still mark South Africa) in the same class as

49 those who are struggling against a repressive system. Tutu said that what matters is what you did. If you killed someone, then that is the same. We said that it is not the same. We fought for freedom but we really believed in peace. The miracle of 1994, the lack of a massive black uprising and slaughter, was due to the ANC’s long-term commitment to non-violence. MK16 was resorted to reluctantly. This is totally different to the attitude of racial hatred that came from the Apartheid state. What you are trying to do is reconcile these approaches. The liberal approach, which sees them as one, is not going to solve the fundamental problems of South Africa. (interview conducted May, 2002)

Boraine is cynical of the motives behind some such criticisms – most famously leveled by then vice-president Thabo Mbeki against the TRC’s Final Report – seeing them as attempts by the ANC leadership to escape the process. (2000: 316) Mbeki – contrary to the views of Mandela – was behind ANC criticism of the TRC’s treatment of human rights abuses committed by ANC members.

For the purpose of the argument here it is most important to note that these criticisms reflect some deeper theoretical issues. The ANC seems to have taken issue in general with an approach based on individual responsibility and morality. Asmal, et. al., argue that the TRC failed to take into account the full nature of the “just war” doctrine for which they initially argued – one based on an acknowledgement of the collective responsibility for abuses committed under Apartheid and the generally moral cause of the liberation movement. “There is simply no proportionality between the two sides of the struggle, a fact that is lost in the Commission’s decision to individualise its definition of gross human rights abuse.” (2000: 93) Others feel that the TRC did its best to carefully construct a position which dealt with abuses on both sides, while still condemning Apartheid. Author on South African politics and head of the School of Politics at the University of the Witwatersrand, Tom Lodge, says: “Activists were annoyed at the even-handedness. But if you read the report carefully, it is argued pretty well about who was primarily responsible. It’s just that they acknowledge that others did things as well.” (interview conducted May, 2002) It is important to stress again at this point that the TRC was mandated to and did make numerous well-argued findings in its Final Report. However, the predominantly moral approach of the TRC to responsibility

16 This is the abbreviation used for Umkhonto we Sizwe, the armed wing of the ANC.

50 (especially during its hearings and the public discussion surrounding these) emerged as a key point of contention with the ANC, and others from the liberation movement. (This will be returned to in later chapters.)

The general thrust of the “systemic view” is that the TRC should have been more focussed on exposing the systemic nature of abuse, the social system of Apartheid, the individuals and groups responsible for running it, and on outlining a plan of change within which these individuals and collectives were held accountable. It generally criticises the TRC’s moral approach as being overly individualised, and insufficiently specific about responsibility for the past. This view seems to suggest that the TRC could have named individuals, groups or things which were responsible in a “systemic” sense and therefore should be held accountable, but failed to do so. This view attacks the theoretical underpinnings of the TRC’s approach. However, it does not consider in detail practically how the TRC could or should have done things differently, within it stated mandate.

2) The “practical view”

Most defences against the “systemic view” have tended to focus on the practical confines of the TRC’s mandate. Tom Lodge, author on South African politics and head of the School of Politics at the University of the Witwatersrand, says:

Much of the criticism of the TRC from the left is that it didn’t put Apartheid on trial. But it was never its role. It had a specific mandate … It was a commission set up for an amnesty process, and to ensure that those who had broken the law of the time would not become vulnerable to civil or criminal proceedings if they made disclosure. And although it limited the scope of the commission, it was only practical. It had plenty to do. (interview conducted May, 2002)

Commissioner Wendy Orr says:

Its mandated, legislated role was to look at gross human rights violations. I think it was wise to limit it. Putting Apartheid on trial would have been such a huge endeavour and there would have been such huge resistance. But in a sense we did. We put aspects of Apartheid on trial. And it was better to do it implicitly like that, rather than explicitly. (interview conducted May, 2002)

51 This defence of the TRC is based on the idea that it was not practical (given the TRC’s mandate and its context) for the TRC to have done more in establishing responsibility in a “systemic” sense.

Many acknowledge that it made mistakes along the way, but ascribe these to lack of resources and/or the pressure of social/political context, while generally defending the TRC’s approach. Commissioner Wendy Orr states:

Given the constraints we faced we probably did the best that we could. But we needed more set-up time. We were formed and flung into statement-taking before we knew what was happening. If we had had six months quiet time to meet, discuss our understandings, definitions and modus operandi, it would have made an incredible difference. (interview conducted May, 2002)

Ntsebeza writes:

We had only eighteen to twenty-four months within which to investigate thirty- four years of South African apartheid history. When we started our work in January 1996, we had nothing: no support staff, no systems, no office space … no precedent, and Commissioners drawn from a range of political and cultural backgrounds. We literally hit the ground running, and once we started, we worked under tremendous pressure until we produced the Report. That we were able to produce the Report at all is a miracle. We therefore ask our critics to look at our work in perspective. (2000: 104)

What I have termed the “practical view” tended to be expressed by TRC Commissioners and some intellectuals. It generally defends the TRC’s emphasis on individuals – both in its amnesty process and its work with victims.

In its Final Report the TRC outlines some of the difficulties it faced in conducting its operations: “Political crimes are committed by highly skilled operatives, trained in the art of concealing their crimes and destroying evidence. They are thus notoriously difficult to prosecute and to prove guilty beyond reasonable doubt.” (1998: Vol. 1, Ch. 5, Section 72) This is especially the case if those under investigation have had or retain some control of the state. The TRC documents the unauthorised destruction of government records between 1960-1989, and the systematic destruction of records

52 carried out between 1990-1994. After 1994 much of the state apparatus remained intact as a result of the settlement. In this context, Commissioner Alex Boraine (2000) defends criticisms of the TRC’s amnesty provisions. Boraine acknowledges that prosecutions would have had the advantage of establishing the concept of retributive justice (perpetrators will be punished), and limited the possibilities of private acts of revenge. However, on balance he still argues that the TRC offered more to South Africa in terms of establishing responsibility than prosecutions did, particularly in the specific circumstances of the settlement. (2000: 280)

In addition, Boraine explains how the TRC rejected approaches early in its operation about setting up a process which privileged submissions by political parties. (2000: 187) For instance, the ANC wanted to accept responsibility for abuses in a specific way:

The political and operational leadership of the movement is ready to accept collective responsibility for all operations of its properly constituted offensive structures, concerning operations that might have been outside of the established norms. (quoted in Orr, 2000: 165)

An early amnesty application was granted for 37 ANC leaders (including Mbeki) – not for any specific act, but based on an idea of collective responsibility for acts committed by the ANC. The TRC took its own Amnesty Committee to court over the issue and the decision to grant amnesty in this way was reversed. (Shea, 2000: 28-38) Boraine states:

The argument for “collective responsibility”, as held by General Viljoen [Freedom Front] and proposed to us by De Klerk and Mbeki, was flawed: we decided that individual accountability was the focus of the Truth and Reconciliation Commission. But in the political party hearings and the institutional hearings, we did address the broad responsibility of institutions for the climate in which individual acts took place. (2000: 187)

In addition, the TRC’s focus on individual victims is defended. In general, Hass argues that:

There is no substitute for the sheer power of personal testimony. Survivors are people, not a phenomenon. Whenever I teach a course about the Holocaust, it becomes apparent that the most important, the most felt resource for the student

53 will be neither my lectures nor the assigned readings but, rather, the ninety-seven minute videotape of a survivor, Barry Bruk, recounting what he felt, observed and endured. (1995: 192)

Sachs argues that the focus on individual cases of extreme abuse was important because these cases were buried and denied, because they were illegal even in terms of the laws of Apartheid, and because they were “the epitome of domination and dehumanisation, and of organised, institutionalised control of one section of the population”. (2000: 96- 96) He argues that personalising the accounts maximised the impact.

This view also generally defends the TRC’s emphasis on morality. TRC Commissioner Wendy Orr argues:

A moral consensus that human rights should be at the heart of the democracy was an important role of the TRC. The daily reports for 18 months meant that society could not escape from a broad understanding of the past. The impact that that had on the capacity of society to grow and develop a human rights culture was significant. (interview conducted May, 2002)

While acknowledging that the TRC could have been better prepared and better organised, those who ascribe to this view argue that it did its best to bring in issues related to social context and collective responsibility, and could not have done more in establishing responsibility and accountability in a “systemic” sense. In contrast to the theoretical focus of the “systemic view”, it is focussed on the practical limitations imposed by the TRC’s mandate and its context.

3) The “procedural view”

The “procedural view” tended to be expressed by non-government organisations which had been directly engaged with victims and the TRC process, as well as some intellectuals. In general, it comes from a perspective of understanding the internal and practical limitations of the TRC, but also a position of sympathy for victim and community expectations in relation to responsibility and accountability. It is a synthesis of the first two views – in that it agrees that more needed to be done in South Africa to establish the responsibility and accountability of individuals and collectives, but argues

54 that it was not practical for the TRC to achieve all that was expected of it. For instance, despite his sympathy for a systemic approach, former TRC investigator, Piers Pigou, argues:

The TRC was constrained by the legislation. It couldn’t look in detail at the structural issues around Apartheid. But it could have investigated gross violations better. And it could have communicated the link between those issues and gross human rights violations. A weakness was not making it clearer that gross human rights violations were just one end of the spectrum of a panoply of broader violations. (interview conducted May, 2002)

In the light of this, some feel that the TRC should have stuck to a narrower view of its role, but set the basis for its work to continue after it finished. Project manager of the Transition and Reconciliation Department at the Centre for the Study of Violence and Reconciliation, Hugo Van Der Merwe, states:

I would have said stick to the narrow mandate but use the opportunities available to do some broader public education, engage with the issue of Apartheid. In terms of the limited time it had and limited money, it had to have a narrow focus. But it created expectations that were too big. And it really should have fitted into a broader program. It was a bit isolated, a one off event that opened things up and closed them down quickly. If there was more government/civil society/religious organisation collaboration on a broader program, with the TRC as one element of that, it could have been a more exciting, ten year engagement with South Africa’s past. (interview conducted June, 2002)

The implication of this view is that the TRC should have concentrated on what it could achieve itself, within an ongoing and broader discussion and engagement with the issues of responsibility and accountability in South Africa. In this context, it targets the moral consensus-building approach of the TRC as it is seen as prematurely stifling this discussion and silencing some individuals.

For instance, after the TRC, large questions have been raised as to how important forgiveness really was for victims. In reality, individual forgiveness was not the main concern of many victims. Commissioners often discussed the question of forgiveness with victims. There was a mixed response.

55 I’ve said this to many people, what I would really, really like is, I would like to meet that man that threw that grenade in an attitude of forgiveness and hope that he could forgive me too for whatever reason. But I would very much like to meet them. (Beth Savage, testified in East London, April 17, 1996)17

I wouldn’t be able talk to them ... I personally feel what the Commission can do for me is that these people should be brought to justice. The whole nation must see these people and they must say why they shot our children. They must account for the death of our children. (Ms. Khonele for Zabonke Khonele, testified in Cape Town, April 23, 1996) 18

Wilson states that some way into the hearings the TRC made a policy decision to stop asking victims if they forgave perpetrators, based on numerous hostile responses. However, he argues that the pressure to forgive was still strong, if implicit. (2001: 174) When the commission asked if he would like to meet the people who killed his son, Mr. Juqu replied:

… what will they do when I meet them because my son is already dead … I didn’t want to come here to this Commission because I was – I got very hurt. Now this makes me mad really. Now if I meet these people what am I going to do with them? (Mr. Juqu for Fuzile Petros Juqu, testified in Cape Town, April 23, 1996) 19

After the TRC, criticism of the emphasis on forgiveness has grown. Commissioner Yasmin Sooka says:

Forgiveness can only take place between an individual victim and perpetrator. The concept doesn’t mean that the victim has to forget their own demands. That is legitimate. It is also legitimate to be angry, because anger is what gives one a sense of self-worth. That is really important in the notion of restoring dignity. For those who fall into the trap of saying you must forgive, that’s ridiculous! The only thing you can do is to say that revenge is not an option because that would de- stabilise the political settlement … I’m not one of those people who say: “you must forgive”. That cheapens the process. It must come naturally. (interview conducted May, 2002)

17 Beth Savage was injured in an attack on a Christmas party at the Kingwilliamstown Golf Club in 1992 by an unknown black assailant. Gunfire and a grenade killed four people in the attack. After meeting her attacker in an amnesty hearing in April 1998, she reported no longer having nightmares about the attack. 18 Zabonke Khonele was one of the Guguletu seven, killed in 1986. 19 Fuzile Petros Juqu was15 years old when he was shot dead by police in 1985.

56 Margaret Green, from the Trauma Centre for the Survivors of Violence and Torture, says:

As a psychotherapist I watched the TRC and I thought that to push forgiveness under those circumstances was an outrageous idea. And I still think that. It obviously came from a Christian framework. It was a bad idea to extract forgiveness from people. Truth is not enough for that. (interview conducted June, 2002)

According to a study conducted by the Centre for the Study of Violence and Reconciliation and submitted to the TRC, many victims still favoured punishment over amnesty as a way of dealing with perpetrators. (1998) Based on public opinion surveys and his own research in townships surrounding Johannesburg, Wilson argues that during and after the TRC the overwhelming majority of people in South Africa still favoured retributive understandings of justice (punishment and the right to sue) over versions of reconciliation which emphasised forgiveness and amnesty. (2001: 25-27) Villa-Vicencio (2000) questions the extent to which the emphasis on forgiveness served to silence victims’ legitimate anger and wishes for revenge. Even for those who did want to forgive, knowing who was responsible was still very important. “At the time of course I was very upset, who would not be. But at the moment, time has gone by, and one would like to forgive those people but if you only knew who they were.” (James Simpson, testified in Johannesburg, April 29, 1996)20

Interestingly, others have objected to the focus on morality even from the perspective of building a new human rights culture. In a minority position submitted as part of the TRC’s Final Report, Commissioner Wynand Malan writes:

Promoting a human rights culture does not mean, at least to my mind, the moral judgement of others, especially if they do not share your mindset. As I have often said in the immediate past, I find moralising, if not counter-productive to reconciliation and national unity, offensive to my taste. (TRC, 1998: Vol. 5, Minority Position, Section 71)

20 James Simpson was injured in the Church St bombing in Johannesburg in 1983, conducted by ANC operatives.

57 Others have argued that the emphasis on consensus damaged the TRC’s work. Some argue that the TRC’s message would have been much more powerful if it had more fully acknowledged the range of conflicting views which it encountered in its work. Commissioner Wendy Orr says:

We say we are a Rainbow nation. There are the reds, and the blues and green and we don’t want to mush that all up and get a horrible, yukky brown. And that’s OK. Just because we haven’t got consensus doesn’t mean we can’t work together. I think it would have been more powerful to say that there is not consensus, there are differences, but we can work through, work with and even benefit from those differences. (interview conducted May, 2002)

Beyond this, researcher on disappearances with the CSVR, Carnita Ernest, claims:

There are still a whole lot of things which need to be addressed on a social level. But I worry that the truth commission has closed the door a bit. People saying: “We’ve had the commission. We’ve dealt with the past. Why do we have to keep going back?”. There is a new silence on the past now. (interview conducted May, 2002)

Author on the TRC and academic at the University of the Witwatersrand, Deborah Posel states:

The amazing thing has been how huge its impact it has been outside and how minimal inside. It is almost like: “The TRC. What’s that?” It is amazing how quickly it has been forgotten … To the extent that there is any notion of reconciliation now it is about putting the past behind us. The TRC should take some responsibility for why that version prevails, rather than coming to terms with the past. There is too much they left unresolved. (interview conducted May, 2002)

However, was it really possible for the TRC to resolve the issues of responsibility and accountability? Sheila Meintjes from the Gender Commission, who was involved in preparing a submission to the TRC on gender issues, asks the following questions about future discussion around these issues: “The unfolding of politics in this country is not finished. Are we seeing an opening up of politics or a closing down? The TRC did open up some spaces, but will they remain?” (interview conducted May, 2002) In the light of this, Hugo Van Der Merwe from CSVR says:

58 We need some level of consensus, but the TRC was too ambitious – trying to bring everyone into a grand narrative. But what I think we should have focussed on is: what are the basic facts that cannot be denied. Then it is a matter of building on that foundation. Beyond that it needed to be a broad collection of different versions and different understandings. I think it was a mistake to try to make it a solid, scientific document. The methodology of how you would do that … I don’t think they had a clear process which served the legitimacy of the outcome. (interview conducted June, 2002)

Hamber and Wilson write that, regrettably: “Truth commissions aim to construct memory as a unified, static and collective object, not as a political practice, or as a struggle over the representation of the past that will continue to be vigorously contested after their existence”. (2002: 36) Ignatieff argues that too much is expected of truth commissions:

A truth commission cannot overcome a society’s divisions. It can only winnow out the solid core of facts upon which society’s arguments with itself should be conducted. But it cannot bring these arguments to a conclusion. Critics of truth commissions argue as if the past were a sacred text which has been stolen and vandalised by evil men and which can be recovered and returned to a well-lit glass case in some grand public rotunda like the US Constitution or the Bill of Rights. But the past has none of the fixed and stable identity of a document. The past is an argument and the function of truth commissions, like the function of honest historians, is simply to purify the argument, to narrow the range of permissible lies. (1996)

In line with the “procedural view”, what I will argue is that the TRC could not hope to please everyone or resolve all the debates around responsibility and accountability that it encountered. However, its emphasis on social context, collective responsibility and morality created some confusion over what it was trying to do and what could realistically be expected of it. This served to fuel anger and criticisms post-TRC.

Conclusion

The TRC was working in a context where past inequalities and political conflicts were still very much present. It faced the very difficult task of defining and limiting its work within this context. In analysing the TRC’s own hearings and Final Report, and drawing on my own empirical material, along with the existing literature, I hope to draw out the

59 important theoretical and contextual debates that it encountered in its discussion and investigation of responsibility and accountability – and investigate the implications this had for the TRC’s work and how it was perceived. The following chapter deepens the discussion of the theoretical issues raised.

60 Chapter 3: Theorising responsibility and accountability

In Chapter 1 I outlined the most basic definition of responsibility as implying a causal relationship with abuse, whether direct or indirect. Responsibility is therefore a theoretical argument which is applied to a particular set of past circumstances. On the basis of such arguments, it is possible to make judgments and findings about the responsibility of individuals and collectives. Accountability flows on from this as an action (whether voluntary or compelled) which aims to acknowledge or ameliorate responsibility.

As outlined in the previous chapter, there were different views in South Africa about how to consider and prioritise individual and collective responsibility. The “systemic view” emphasises collective responsibility in the context of a social system. The “practical view” emphasises a focus on individuals, while acknowledging the influence of social context and considering some issues of collective responsibility for human rights abuse. The “procedural view” is more concerned with what the TRC could practically deliver, and how to promote a more general and ongoing engagement with the issues of responsibility and accountability in South Africa.

The TRC’s approach to responsibility and accountability in relation to human rights abuse was complex and ambitious. It raised some important theoretical issues, which have been discussed and debated in the theoretical literature. These include: the relationship between individual responsibility, collective responsibility and the influence of “the system”; the nature of collective responsibility; the nature of morality; the distinction between moral and political responsibility; and how individuals and collectives can or should be held accountable. In this chapter, I begin to look at where and how these became relevant within the TRC’s work, and the discussion around it.

Individual and collective responsibility

The first important issue which emerges is the level at which responsibility should apply – individual or collective. This goes to the heart of debates in political theory over determinants of human action and historical change.

61 Individual and social

French argues: “History is often written as the acts of individuals, and social change is interpreted in terms of the choices of individuals”. (1998: 33) However, the opposite view can be drawn from the following quote from Marx about individual capitalists: “Inasmuch as I consider the development of the economic structure of society to be a natural process, I should be the last to hold the individual responsible for conditions whose creature he is”. (Marx, 1964: 864) Cooper writes that this could be interpreted to mean the following: “It is the system, whose members are somehow dupes, or products and creatures of it, that is to blame”. (1998: 135) However, McLennan argues that Marx’s work need not be interpreted in this way:

Structural principles must be complemented by, or even include, notions of individual action, natural causes, and “accidental” circumstances. Historical outcomes depend on them, too. Nevertheless, material and social relations can be long-term, effective real structures that set firm limits to the nature and degree of practical effect that accident and even agency can have. (1981: 233-234)

Marx writes: “Men make their own history, but they do not make it just as they please; they do not make it under circumstances chosen by themselves, but under circumstances directly encountered, given and transmitted from the past”. (1975: 96) Nevertheless, some theory basing itself on Marx’s work has tended towards an emphasis on structural and systemic factors to the exclusion of individual agency. But this sort of philosophical determinism does not make a lot of sense in the real world – is it really true to say that individuals have no choice in relation to their actions? However, when discussing the relationship of individuals to social systems and groups, it is very easy to slip into determinist language. (This is a point which will be returned to throughout the thesis.)

Much of the existing literature on the theory and history of Apartheid (and race and class) in South Africa has concentrated on collective interests/action and systemic dynamics. Wolpe (1988) identifies three main theoretical approaches which are applied to explaining South Africa’s history. Wolpe outlines liberal modernisation theory as locating racial oppression primarily in the political/ideological sphere. The economy is

62 perceived as rational, while a political order based on skin colour and not universal human attributes is perceived as irrational. This theoretical approach assumes that racism as an idea will be eliminated in an evolutionary way within the market economy of capitalism. (Wolpe, 1988: 25-27) Race-based approaches theorise race (whether it is seen as biologically based or socially constructed) as the primary division in society and the determinant in all social relations. The formation and interests of social groups originate in racial or ethnic differences. All social structures exist to perpetuate the domination of white over other groups. (Wolpe, 1988: 12-14) Marxist theory by contrast states that the primary cleavage in society is class. Racism as an ideology is rooted in the economic benefit that it holds for the capitalist class, and is reinforced through the structures of capitalist society. Influential works influenced by Marxist theory include Saul and Gelb (1981), Marks and Trapido (1987) and Wolpe (1988). This emphasis on collectives and systemic dynamics is perhaps explained because the social division in South Africa was so obvious and so brutally enforced.

In this context, the TRC emphasised individual agency and responsibility in its investigations, but it also acknowledged, and included in its investigations, the influence of social context and collective responsibility. In doing so, it entered into a complex theoretical discussion about the relationship between these. A number of theorists have attempted to construct an approach based on an integrated understanding of individual agency, group dynamics and social systems. Developing this approach has been based on rejecting a view of individuals as simply fitting into pre-determined roles, or as being ruled solely by an abstract social system or structure. It also involves rejecting the view that society can only be understood as the sum of individual experience and action. Berry writes:

From the perspective of “society” we obtained a caricature of the individual as a determined and predestined creature assigned his [sic] role prepared for him [sic] by society. From the individualistic perspective, however, “society” itself only exists in so far as it is experienced and understood by individuals. (1974: 29)

Berry makes the point that examining social forces in and of themselves can become overly abstract and useless if it divorced from the “real world” – a world which is in the

63 end experienced by individuals. While arguing against a “mystical” view of society and its influence on individuals, he writes that: “it may be said that while society can be no more than the social association of its members it is nevertheless experienced as an independent objective reality by its members”. (1974: 12)

In the South African case, for instance, it varied in terms of how aware individuals were of being influenced by a social “system”. Perhaps because the social division in South Africa was so stark, many were aware of social influence on their lives. For instance, black victims were (and felt themselves to be) disempowered because of the exertion of power over them by perpetrators, but also by a broader social group. However, how people identified this group varied. Some would identify this group as being white people. Others would single out the Apartheid state, or their most immediate representatives in daily life – the police and military. White perpetrators also felt themselves under the influence of a broader social power. They felt the need to protect the way of life of a group of people to which they belonged. Black perpetrators felt that the imposition of restrictions on their options for action justified extreme measures.

But beyond how people “feel”, how does one define the “social” and the influence it has on individuals? Giddens argues against a view of social structure as “‘external’ to human action, as a source of constraint on the free initiative of the independently constituted subject”. (1984: 16) Instead, he argues that structure should be considered as the generative rules and resources that individuals draw upon, and also thereby change, in their continuous production and reproduction of society. His theory of structuration is an attempt to understand the relationship between social structure and human agency. He argues that to “enquire into the structuration of social practices is to seek to explain how it comes about that structures are constituted through action, and reciprocally how action is constituted structurally”. (1976: 161)

Rubinstein writes that there is much academic debate over an abstract definition of “social structure” (“external”, “objective” determinants of behaviour and events). However, he makes the point that there is much more agreement than there seems when this question is considered more practically. He argues that social structure, a concept

64 used in a wide range of different literatures and circumstances, most often means the structure of opportunities – the influence on the range of actions, thoughts, benefits and costs available to individuals. (2001: 5) Social structure is thus not a “given”. It is the result of various historical and even accidental factors. It is also the result of struggles to assign and re-assign costs and benefits. Individuals stand in a relationship with society, but the power relations which exist within that society also influence them.

When viewed more practically, this often comes down to group dynamics. Rubinstein writes: “most commonly, the structural concept of opportunity implicates the efforts of groups to exercise power on behalf of their own members and to constrict the opportunities of others”. (2001: 40) Differences in control of societal resources such as wealth or armed power mean that some social groups can enforce an inequality between themselves and others. Rubinstein argues that this is often chosen as a perspective against liberal notions of individual choice and action. However, at its base is often the concept of self-interested individuals maximising their benefits by rationally choosing group solidarity – and he argues that this makes it a poor explanation for human thought and action. He argues that what is needed is a synthesis of structural and cultural explanation – that structural opportunity cannot be considered separately to the ideas of people in society or about society. Giddens agrees that the way that individuals think is influenced by social structure, but also influences social structure:

Structure is not to be equated with constraint but is always both constraining and enabling. This, of course, does not prevent the structured properties of social systems from stretching away, in time and space, beyond the control of any individual actors. Nor does it compromise the possibility that actors’ own theories of the social systems which they help to constitute and reconstitute in their activities may reify those systems. (1984: 25)

According to this approach, for instance, individuals do not combine in groups due to self-interest alone, but often due to ideas about the group or about society as a whole. The ways in which people view social groups are important, and in fact help shape and break these groups. Culture is thus not “inert” and irrelevant, but neither is it the sole determinant “relentlessly controlling conduct”. (Rubinstein, 2001: 89) Rubinstein makes

65 the point that rules and norms exist, but it is people who make sense of these. People make sense of culture based on their experience – this allows for culture to change, and for different experiences to create space for resistance. Although there are limits to interpretation, as Rubinstein points out: “Culture is open to variable ‘readings’ that are, in part, guided by the array of opportunities”. (2001: 79) Based on this dialectical understanding of opportunity and culture a different theory of agency arises:

The actor is modelled as engaging both cultural imperatives and opportunities, but is a träger [bearer] of neither. While both forms of determination are acknowledged, agency is preserved in the ability of the actor to critically engage each in the light of the other. (Rubinstein, 2001: 150)

In addition, he argues that individuals have their own specific histories, personalities and feelings which affect their actions and the way in which they think about the above. This results in a perspective which views individuals as social actors, who make individual choices, albeit within certain limits. From this perspective, “the social” is not something completely outside of individual perception, influence and control. While influenced by the power dynamics and prevailing ideas of any particular social system, individuals have choices. Individuals can choose not to conform (and some do). Individuals can choose to adhere to or join certain social or political groups. In more concrete terms, the social context of Apartheid encouraged and allowed violent actions to protect the status quo and the “Afrikaner nation”. However, some individuals chose to kill or to “follow orders”, while others did not. Some in fact chose to heroically resist. The social system and individual agency both played a part. According to this perspective, individual perpetrators can be considered responsible for not resisting or acting to change the social influences which pushed them towards abuse. This allows a notion of individual agency (and thus responsibility) within a social system.

What I will show in later chapters is how the TRC attempted to address some of these issues. Discussing and developing political theory was not a primary focus or main role of the TRC. Nevertheless, its investigations and discussions raised these underlying theoretical issues, discussions and debates – and the TRC had difficulty dealing with them. In addition, it was always going to be impossible for the TRC to construct an

66 approach which satisfied everyone or resolved these important underlying debates about how to view individuals, society and collectives. This became most obvious in the TRC’s discussion of collective responsibility. Collective responsibility in particular is a contested concept because it raises the issues of the relationship between the responsibility of collectives and the individual responsibility of their members, and also the relationship between collective responsibility and the influence and functioning of “the system”.

Collective responsibility

There is a large amount of academic debate about how to define collective responsibility. This relates to the varying approaches to the relationship of the individual and the social outlined above. For instance, Downie outlines what he calls the “individualist” and “collectivist” approaches:

Discussions of the large-scale crimes or tragedies of human history characteristically produce two lines of argument: that for any crime there must be some individual or individuals who can be blamed, and, to the contrary, that it is unfair or unrealistic to blame individuals for it is really “the system” which is to be blamed. (1998: 65)

In line with the former approach, French writes:

Some philosophers argue that all ascriptions of collective responsibility are only shorthand devices for ascribing of responsibility to the individual human beings who happen to be involved in groups. It is said that all statements about collective responsibility ultimately can be completely reduced to ascriptions of individual responsibility. (1998: 33)

However, others argue that collective responsibility can be considered aside from individual actions, and within the context of “the system”. The TRC chose to deal with collective responsibility, and thus adopted a position where collectives were considered as more than the sum of the individuals of which they are composed. However, in a theoretical sense other issues remained unresolved – how to define collective

67 responsibility and then re-consider how this inter-relates with the responsibilities of each member of the collective.

Cooper argues that the term “collective responsibility” can mean different things: a general sense that responsibility or guilt should be more widely spread; to indicate that each member of a group, regardless of their own actions, is responsible for the actions of the group as a whole; or to indicate that the collective itself, beyond its members, is responsible. (2001: 206) He suggests the latter as an approach which could help to facilitate reconciliation, but argues that what could be added to it is some individual responsibility – where particular individuals (“the architects of oppression”) could and should be singled out. (2001: 210)

However, in moving towards discussing collective responsibility, an important problem is that it potentially eclipses individual responsibility. For instance, perpetrators can claim that dynamics within and between collectives made it impossible to act otherwise. Finding a state institution collectively responsible for abuse may obscure more specific individual responsibility within this. In addition, finding a group like white South Africans collectively responsible may be difficult if some individuals chose to be perpetrators and others chose to resist.

In discussing this issue, it is possible to argue that social arrangements and group dynamics which reward conformity and punish resistance are mitigating circumstances and thus dull the responsibility of individual members to some extent. However, Feinberg writes:

No individual person can be blamed for not being a hero or a saint … but a whole people can be blamed for not producing a hero when the times require it, especially when the failure can be charged to some discernible elements in the group’s “way of life” that militates against heroism. (1968: 683)

To the degree that this could be said about white South Africans, for instance, responsibility could potentially be established. According to this perspective, the fact that some resisted does not remove responsibility from “white South Africa” as a group

68 (but does remove responsibility from those individuals to a large extent). This discussion becomes particularly important in terms of considering how collective responsibility relates to accountability. Whether collective responsibility is considered as distributive to members of collectives, or not, leads to different views on who or what should be encouraged or levied to contribute to compensation for victims, for instance. This issue will be covered in more detail below.

Considering the relationship between individual and collective responsibility became a particular issue for the TRC in its hearings. In following chapters, I will show that the TRC attempted to interrogate collective responsibility by calling prominent individuals and representatives of important bodies to testify in its hearings, and asking them to take individual or collective responsibility on behalf of that collective. However, the status of those appearing as “representatives” varied. In the case of “business”, for instance, there was no collective body and no-one that would or could represent it. This problem also came up in terms of dealing with the responsibility of “the state”.

Defining collective responsibility thus requires consideration of two important issues – the nature of the collectives under consideration, as well as what collectives might be held responsible for.

Who and what?

As I will show in later chapters, the TRC ran into confusion over the nature of the collectives it investigated. For instance, was “business” a term being used to designate a set of actually existing institutions, or a social group or a theoretical concept?

In discussing this, it is important to note that some collectives have a structure and leadership, whereas others have no clear structure or leadership. In the thesis, I have used a narrow definition of the term “institutions” to refer to the former as actually existing and formally constituted bodies. Beyond this, I use the term “social groups” to refer to collectives such as white South Africans, which have no clear structure or leadership. In terms of institutions it is potentially easier to make a finding of collective responsibility – in some sense or another people chose to join these institutions,

69 participated in a formal decision-making structure and either participated actively or acquiesced in the actions taken on behalf of the institution. Within this, it may well be possible to single out particular leaders who were more closely involved in or had more power to determine the decisions and actions of the institution. This allows for a finding of collective responsibility, while relating this to individual agency.

Bodies that the TRC dealt with that would fall under this category are Cabinet, parliament, ministries, military institutions, security organisations and political parties. In discussing these formally constituted and actually existing institutions, “the state” can be used as a collective term. However, it can also be used as a metaphor for an abstract thing (which is the subject of much theoretical debate). The TRC did not adequately differentiate between these usages of the term. This same confusion arose most strongly in the TRC’s business and labour hearings (and will be considered in detail in Chapter 5). “Business” can be used as a collective term which covers many business institutions. However, it was not possible for the TRC to call “business” as an institution to testify – because no such institutional structure existed. Some business associations did exist, but they had no formal control over individual businesses. I will also argue later in the thesis that the TRC had limited ability to deal with the predominantly theoretical discussion about the role of “business” in the “the system” of Apartheid. However, it was more possible for the TRC to make findings and recommendations in relation to individual business institutions, and perhaps also to deal with the responsibility of business as a social group in relation to human rights abuse.

In terms of social groups, it is harder to make a finding of collective responsibility – as people often do not necessarily consciously join these groups, participate in formal decision-making, or in fact act on behalf of this group in any way. However, May makes an interesting point in this regard:

Often, people could organize themselves into the kind of group that could prevent massive starvation or racial injustice. But the potential members of these groups often must first recognize that they share responsibility for the harms, in order to feel motivated to form structures allowing for collective action. (1998a: 212)

70 In this sense, it may be possible to hold particular groups responsible for their failure to form a structure and leadership, and thus act, to prevent abuse. Their failure to do so is thus judged as acquiescence to a particular unjust state of affairs within which the group exists.

Addressing collective responsibility thus also requires consideration of what one is potentially finding a collective responsible for. In later chapters I will show that while investigating the responsibility of collectives for contributing to abuse, the TRC often strayed into more general questions about the role of various institutions under Apartheid. This created ambiguity in its hearings over what it was asking individuals and collectives to take responsibility for and, coming out of this, what findings it could realistically make. The TRC was mandated to consider responsibility for gross human rights violations. In doing so, it is important to acknowledge a distinction between active participation in, or collusion with, human rights abuse, and the rather more passive actions of benefiting from that abuse and standing by while it is perpetrated. However, according to the points made above, it is potentially possible to find collectives responsible for the action of inaction.

Beyond looking at the level at which responsibility should apply, the distinction between moral and political responsibility emerged as another important theoretical debate.

Moral and political responsibility

In the first instance, this debate goes back to definitions of morality. The TRC did not specifically outline a conception of morality. It did, however, assume that there was a common moral understanding on the basis of which black and white, and all sides of the conflict could go forward into the future. As such it tried to establish common Christian and African notions of forgiveness and social peace – using the concept of ubuntu. This position is consistent with one which sees morality as “God-given” or “natural”, something which can be “found” and “agreed upon” despite a history of conflict. Tutu writes:

71 Our people were often perplexed by this remarkable fact, that those who treated them so abominably were not heathen but claimed to be fellow Christians who read the same Bible. Thus the proponents of Apartheid had no excuse for their peculiar doctrine. The Bible they and we both read is quite categorical – what endows human beings, every single human being without exception, with infinite worth is not this or that biological or other external attribute. No, it is the fact that each one of us is created in the image of God. This is something intrinsic. (1999: 11)

The way the TRC intended to (re)-establish a common moral view was through revealing the past, and promoting discussion. Habermas’ theory of discourse provides a useful way of understanding the discussion of morality undertaken by the TRC, but also some of its limitations.

Habermas argues that a “consensus” operates in most individual interactions, a consensus which embodies shared social norms and understandings. Where a background consensus exists, comprehension, acceptance of truth and sharing of knowledge are easily achieved. Where a background consensus does not exist or is seriously disrupted to the point that there is no longer agreement on what is “true” and “right”, it is necessary to engage in “discourse” to arrive at or redeem this consensus. (Roderick, 1986: 82) Discourse, then, is a situation where problematic norms and appeals to “truth” are acknowledged as such and subjected to the force of argument and counter-argument. The opening up of discourse requires a suspension of judgment, and an openness to listening to the reasoning of others with conflicting norms and validity claims. As Pusey puts it, discourse requires that “we suspend action so as to mutually question our basic assumptions and commitments”. (1987: 74)

For Habermas this consensus on truth has to be one which has not been forced or passively accepted, but argued through. Discourse which is free from structural constraints on argumentative reasoning – whether conscious or unconscious – is what constitutes for Habermas the “ideal speech situation”. (1970: 372) Obviously the imposition of domination, ideology or strategic interests is disruptive to this. Ideology is defined as ideas that serve partial rather than common (or generalised) interests, and thus aim to hide or legitimate the “truth”. Thus Pusey argues that for Habermas:

72 “systematically distorted communication points back to systematically distorted social structures, and so to the effects of power on individual life-histories”. (1987: 72) For Habermas, the search for truth is closely linked to emancipation as “truth points ultimately to a form of interaction that is free from all distorting influences”. (McCarthy, 1978: 308)

However, the TRC’s approach to the important philosophical and theoretical issue of morality proved to be very difficult to apply. Achieving a consensus, and allowing a redemptive discourse (especially on issues of social power), was always going to be highly problematic in a society that was so strongly marked by inequalities of power and resources as South Africa. One example of this is the lack of agreement even on what was being discussed. A white middle-class person might think that reconciliation is finding out about abuses they didn’t know had happened in the past and feeling some remorse. A black mother in a township might think that reconciliation means that she will get a proper house for once in her life. Even the words and concepts used to have these discussions were still heavily influenced by the historical divisions which continued to mark South African society. For instance, Tutu reports of divisions within the commission itself:

We were, as I said, broadly representative of South African society.21 That representativeness was a vital attribute, but it caused us a major headache. We came from diverse backgrounds and we were to discover that Apartheid had affected us all in different ways. We learned to our chagrin that we were a microcosm of South African society, more deeply wounded than we had at first imagined. (1999: 70)

In addition, there are questions about whether the common religious views appealed to by the TRC really existed in communities – or whether they were so important to people as a way of dealing with the past. Colvin writes that both forgiveness and ubuntu are almost entirely absent from discussions amongst victims after the TRC. (2001: 32) While the TRC sought to project itself as a neutral body that could contribute to a new

21 Bell points out that in fact 35% of the commissioners were white, representing 17% of the population. Meanwhile, only 41% of commissioners were black, representing 70% of the population. (2001: 243)

73 moral consensus through discourse, it could not hope to produce results which would be accepted by all. This has led to some criticism of the TRC. In line with the “procedural view” outlined in the previous chapter, Ignatieff criticises the way the TRC set up the discussion:

In South Africa, Archbishop Tutu’s Truth Commission is collecting testimony from the victims and perpetrators of apartheid. In Tutu’s own words, the aim is “the promotion of national unity and reconciliation” ... “the healing of a traumatised, divided, wounded, polarised people”. Laudable aims but are they coherent? Look at the assumptions he makes: that a nation has one psyche, not many; that the truth is one, not many; that the truth is certain, not contestable; and that when it is known by all, it has the capacity to heal and reconcile. These are not so much assumptions of epistemology as articles of faith about human nature: the truth is one and if we know it, it will make us free. (1996)

In response to criticisms of this type, the TRC outlines in its Final Report the range of different conceptions of “truth” that it encountered: factual or forensic truth; personal or narrative truth; social or “dialogue” truth … and healing and restorative truth. (1998: Vol. 1, Ch. 5, Section 29) The TRC goes on to say that:

While narrative truth was central to the work of the Commission, especially to the hearings of the Human Rights Violations Committee, it was in its search for social truth that the closest connection between the Commission’s process and its goal [of reconciliation] was to be found … social truth, the truth of experience that is established through interaction, discussion and debate. (1998: Vol. 1, Ch. 5, Section 39)

The TRC opened up an important space for moral discussion and discourse in South Africa, but it could not operate free from past and current power differences and inequalities. In its Final Report, the TRC acknowledges:

Many people within and outside the Commission warned against expecting too much, too soon from the reconciliation process at a national level. They were concerned about the imposition of a notion of reconciliation – associated with contrition, confession, forgiveness and restitution – on a diverse and divided society attempting to consolidate a fragile democracy. They argued that the most the Commission could and should hope for, at least in the short term, was peaceful coexistence. (1998: Vol. 1, Ch. 5, Section 20)

74 Van Zyl Slabbert re-defines reconciliation as follows: “It is a relationship that is restored to the extent that the parties can move on in peace while accepting each other’s integrity”. (2000: 70) However, Mgxashe argues that even this sort of coexistence is a challenge due to:

… the huge gaps that still exist between the affluence of the average white person living in the suburbs and the poverty of black South Africans living in the townships. So when one talks of coexistence among South Africans, one is implying coexistence between poverty and affluence. (2000: 213)

This meant that the TRC ran the risk of asserting a consensus where it did not exist. As an example of this, Tutu writes: “The old system of Apartheid, with its vicious repression and injustice was now discredited. In this new era almost nobody would admit to having supported it”. (1999: 21) While this fitted with the TRC’s hopes of a generalised moral repudiation of the past, the statement actually reveals the failure of those who had supported Apartheid to take responsibility for human rights abuse. A consensus based on this was always going to be shaky.

In contrast to a position which takes morality as a given, a number of theorists have outlined a concept of “contested morality”. Bozzoli argues against a view that a common, neutral truth or morality could be found. (1998: 170) Lukes argues that this is because any set of moral ideas will relate to a given social system:

… every conception of the good favours certain social relationships and forms of life, and certain ways of defining individuals’ interests – or, more precisely, certain ways of conceiving and ranking the various interests, deriving from their roles and functions, that individuals have. It also disfavours others. (1985: 3)

According to this conception, moral ideas exist in part to explain particular social arrangements. So, in terms of Apartheid, economic and social changes (nationally and internationally) affected how these ideas changed over time. Within this, some people believed that they were morally superior to others. Others held opposing beliefs in social change to realise a morally-posited equality of all people as people. Individuals thus acted in accordance with their particular interpretation – which was obviously influenced

75 by their social experience (as well as their individual experience, emotional make-up and history). The usefulness of this approach is that it allows a judgement of individual responsibility and morality, while relating this to social context. It emphasises that individuals form and hold moral beliefs in relation to established social values, which are often the subject of political struggle and debate.

A stated earlier, the TRC did not specifically discuss or define a conception of morality, or consider how to define and distinguish between moral and political responsibility. What I will show in later chapters is that underlying theoretical debates around these issues consistently emerged in terms of how to apply responsibility to individuals and collectives.

Moral vs. political

The TRC’s emphasis on morality is reflected in academic approaches to individual and collective responsibility for abuse.

Academic discussion of responsibility was prompted after the end of World War II. The prosecution of Nazi war criminals was a ground-breaking event in defining and applying criminal responsibility to individuals and government bodies. But beyond this, how to understand and deal with broader questions of responsibility emerged as an important concern – particularly as they applied to Germans, as individuals and a collective.

An important work was produced at this time by Jaspers (1961), dealing with the nature of German guilt. In this work he made a number of important distinctions which are relevant to the discussion here. Jaspers carefully distinguishes between criminal, political, moral and metaphysical guilt. (1961: 31-32) Criminal guilt involves transgression against established laws. Its jurisdiction is the court, and punishment is meted out through prosecution. Political guilt attaches to both the state and to citizens (who, as a whole, tolerated state actions). Importantly, this does not imply individual moral or criminal wrong-doing on behalf of all citizens. Jaspers makes the point that a nation is heterogeneous and hard to define. (1961: 40-41) It cannot be prosecuted and he argues that moral guilt cannot apply. However, political responsibility applies to all

76 citizens and makes them liable for reparation. Jurisdiction lies with the victor. Both of these categories of guilt are judged from without. But Jaspers identifies two further categories of guilt – which he argued could only be judged from within. (1961: 36)

Japsers identifies moral guilt as applying at an individual level in terms of awareness of and participation in transgressions, or failure to act to prevent them. He argues that despite social influence and prevailing moral beliefs, each individual is responsible for their own actions. The only jurisdiction for moral guilt is individual conscience, and the response is penance and renewal. Beyond this, Jaspers argues that metaphysical guilt relates to our solidarity as human beings, which makes each of us responsible for transgressions against the moral order and moral bonds which connect us. The jurisdiction in this case rests with God. Jaspers emphasised these last two categories – arguing that moral guilt created the conditions for criminal and political guilt, and that accepting moral and metaphysical guilt allowed “purification”. (1961: 118) It set the basis for making amends, moral regeneration and, through this, promoted meaningful political transformation.

Jaspers’ work is interesting for the purposes of the thesis because he separates out political and moral responsibility. However, his notion of political guilt has not featured prominently in subsequent treatment of these issues. This is perhaps because political guilt, in the sense that Jaspers defines it, has been hard to apply in many subsequent conflicts. In many cases there was no clear victor with the authority or willingness to prosecute and/or enact reparations such as those imposed on Germany. In line with Jaspers’ own emphasis, many have instead concentrated on morality. This is perhaps because morality has been seen as more important (as it relates to underlying social values and norms), but also because collective political responsibility is not voluntary and is thus harder to apply (as it is more likely to be contested and less likely to be accepted).

A focus on responsibility emerged again in the literature in relation to the Vietnam war. In an edited volume dedicated to an analysis of individual and collective responsibility

77 in relation to the My Lai massacre committed during the Vietnam war, Baier writes of the lieutenant in command on that day:

Even if Calley is criminally responsible … does this show that he is responsible for My Lai? Does it show that he is solely responsible for it? … The questions “Who is responsible for My Lai?” is not the same question as “Who is guilty of murdering people at My Lai?” (1998: 44)

Much of the subsequent academic interest in the issue of collective responsibility has come from a perspective of going beyond a narrow focus on legal responsibility to include a discussion of the broader actions and social arrangements which contributed to abuse. This is most often discussed in moral, rather than political terms. Within this, some have concentrated on how wars, crimes and nations can be judged in a moral sense. (Ellis, 2001: 15) The TRC itself is an example of this approach – rejecting a narrow focus on legal responsibility, and promoting a more general process of moral responsibility and moral regeneration. The emphasis on morality in the literature (and within the TRC) has resulted in less attention being paid to political responsibility, how to distinguish this from moral responsibility, and how to apply this to individuals and collectives.

Judging the morality of individual actions goes back to debates over the nature of morality itself. As a first step in unravelling this discussion, it is important to consider how one might judge the moral actions of individuals in social context. Jackson outlines the “difference principle” as the most basic way of assessing the morality of actions: “the morality of an action depends on the difference it makes; it depends, that is, on the relationship between what would be the case were the act performed and what would be the case were the act not performed”. (1987: 94) The advantage of this definition is that it can also include inaction. It also allows an assessment of individual actions in social context. Jackson points out that the principle does not say which differences are important – and thus has broad theoretical appeal. However, determining which differences exist or are important requires looking at social context – and is thus a contested issue.

78 In judging the action/inaction of collectives, there is even more academic debate over how to apply morality. According to Downie, the “individualist” would assert that “actions performed by individual person, and only such actions, are appropriate subjects for moral predicates of the kind that are used in ascribing blame or moral responsibility”. (1998: 66) French writes:

Almost all Western moral philosophers have approached the subject of responsibility armed with the assumption that the only interesting and important things to be said on the topic must be about individual human beings. If ascriptions of moral responsibility appeared to be about groups, organizations or corporate bodies, they were either nonsensical or they were reducible to statements about individual human beings ... Sentences that appear to hold a group or a corporation responsible are merely shorthand devices for ascribing responsibility to each of or at least one of the human beings who comprise the group or are associated in the corporation. (1984: vii-viii)

Against this, French suggests is that it is possible to make judgments of collective responsibility – from a moral perspective. He argues in particular that it is possible to consider the business corporation as a “moral person”. He argues:

For a corporation to be treated as a moral person, it must be the case that some events are describable in a way that makes certain sentences true: sentences that say that some of the things a corporation does were intended by the corporation itself. That is not accomplished if attributing intentions to a corporation is only a shorthand way of attributing intentions to the biological persons who comprise, e.g., its board of directors ... I shall argue, however, that a corporation’s International Decision Structure … provides the requisite redescription device that licenses the predication of corporate intentionality. (1984: 39)

French uses this as a basis to morally judge the actions of such institutions – in the same way that individual actions can be morally judged.

The ascription of moral responsibility to business institutions is related to the broader literature on business ethics and corporate social responsibility. Against the view that profit is the only imperative, there has been a strong push for corporations to recognise their responsibilities “to their own employees, to customers and suppliers, to the communities in which they are located, and to society at large”. (Boatwright, 1999: 338)

79 Examples of things included in this discussion are: ensuring adequate wages and working conditions; improving internal processes (such as minimising discrimination); considering environmental impact; funding charity activities; and speaking out about community, human rights and social concerns. Others have specifically critiqued a view of business as amoral and argued these responsibilities from a moral perspective. De George writes: “Because business activity is human activity, it can be evaluated from the moral point of view, just as any other human activity can be so evaluated.” (1988: 9) However, French criticises the field of business ethics as only identifying ways of applying traditional moral theories, and instead argues for the need to go further to develop a new theory of the corporation as a moral person.

There is a lot of theoretical debate around these issues. Contrary to French, Jaspers (1961) argues that only political guilt applies to collectives, and that moral guilt is only applicable at an individual level. French argues that institutions can be judged for acting, and for intending such actions. However, there are important differences in the processes leading to action in an individual and an institution, because institutions cannot think. Through their own internal decision-making procedures they can take decisions on particular things motivated by particular common views amongst their membership and leadership. So, the moral views of these individuals are reflected in the collectively- decided views and actions of the institution – but institutions are not conscious beings. However, it is possible to argue that the actions of collectives (either social groups or institutions) can be judged from a moral perspective, by saying that a collective has decided/acted/not acted in a way that any moral person would or should find repugnant.

As distinct from an approach based on moral responsibility, dealing with the political responsibility of collectives (as defined by Jaspers) is in some ways easier in that it refers to formal governmental systems of responsibility and accountability. In dealing with social institutions and groups, collective political responsibility is also concerned with decision/action/inaction and the results – and not necessarily the intention of the individual or collective involved. For instance, it may not have been the intention of

80 particular groups to support the human rights abuse perpetrated by a regime, but they can still be judged for failing to act against it.

In any case, it becomes clear that the definition of morality is contested, along with how and whether moral and political responsibility should be defined, distinguished, and applied to individuals and collectives.

What I will show in later chapters is that this discussion became important in terms of how to interrogate the responsibility of individuals and collectives in the TRC’s hearings. It is possible, for instance, to question someone like De Klerk about his own actions and morality. However, an emphasis on individual agency may actually contradict an approach based on asking an individual to take moral responsibility for the actions of others. The actions of others are ultimately the individual moral responsibility of each person concerned, and it was relatively easy for people like De Klerk to evade responsibility in response to this line of questioning. In this sense, it was important to consider investigating and making findings about the political responsibility of someone like De Klerk (as a member and leader of a significant institution) for influencing the actions of others (especially if they are in a position to order someone else). This does not require an admission of guilt. In the same way, it is relatively easy for individuals to evade taking moral responsibility for a broader collective. It is, however, possible to find such an individual politically responsible by virtue of their leadership role, and to establish collective political responsibility. What I will show in later chapters is that the TRC in fact made these sorts of findings in its Final Report, but that this was somewhat overwhelmed and undermined by its emphasis on morality (particularly in its hearings).

In dealing with those in formal leadership roles within organised state institutions, it is interesting to return to some rather basic, if somewhat outdated, liberal notions of responsible government. Birch outlines the doctrine of ministerial responsibility which held sway Britain from the nineteenth century, whereby individual ministers are responsible to parliament, are held responsible for all the actions of their departments, and should be prepared to resign if serious mistakes are uncovered. Similarly, Cabinet is collectively responsible for government policy. (1964: 20 and 131) This doctrine can

81 seem “unjust” or “unfair” – as it holds individual leaders responsible (and accountable) for the actions of each and every one of their subordinates. However, for the purposes of the thesis here it is interesting to note that this doctrine does not necessarily imply a judgment of individual moral culpability, but rather asserts a principle of political responsibility. The advantage of this approach is that it cuts off the option of “I didn’t know what they were up to”, and places the impetus back onto the leadership to know, or to find out, what is going on at each and every level.

It is an obvious point that South Africa did not have the sort of liberal democratic model of representative government that existed in countries like Britain, and it is very hard to retrospectively apply such a model. However, the theory of ministerial responsibility is an interesting theoretical tool in two senses. Firstly, it outlines a notion of collective political responsibility which is distributive to members, without moral blame. This opens up the possibility of finding Cabinet collectively responsible for government policy (including members and leaders within this). Secondly, it implies that this collective political responsibility relates to all government policy and actions (and whatever resulted). How these issues came up within the TRC’s work will be covered in Chapter 4.

Again, it was not the TRC’s main role to consider political theory and analysis, and it could not have come up with an approach which would have satisfied everyone. Nevertheless, these theoretical issues and debates came up consistently within its work. The reason that the debates outlined above are important is that they lead on to debates about holding individuals and collectives accountable in terms of ameliorating the damage caused by abuse.

Accountability

How one finds individuals and collectives responsible, for what and in what sense, will influence what is then considered appropriate in terms of accountability. As there were no pre-existing formal systems of accountability in terms of the human rights abuses, the

82 TRC faced a difficult task. This was further complicated by its amnesty provisions – which some saw as eclipsing accountability.

Amnesty was acknowledged by the TRC as a major tension in public debate. “Some victims felt that amnesty results in insufficient social repudiation and that, by refusing to punish those responsible and allowing perpetrators to walk free, it constitutes a failure to respect their suffering.” (1998: Vol. 1, Ch. 5, Section 54 (b)) During the TRC process, the Azanian Peoples Organisation, together with the families of murdered liberation movement leaders Steve Biko and Griffiths Mxenge, challenged the constitutionality of the amnesty provisions. While Judge Ismail Mohamed, who delivered the Constitutional Court’s judgment in this case, stated that he sympathised with the families, the constitutionality of amnesty was upheld. Some victims agreed with the need for amnesty, or at least saw it as a question for others to decide. Some expressed support for the idea. In a forum on Reconciliation, Reconstruction and Economic Justice held in March 1996, Cynthia Ngewu22 stated:

We do not want to see people suffer in the same way that we did suffer, and we did not want our families to have suffered. We do not want to return the suffering that was imposed upon us … I think that all South Africans should be committed to the idea of re-accepting these people back into the community. We do not want to return the evil that perpetrators committed to the nation. We want to demonstrate humaneness towards them, so that they in turn may restore their own humanity. (TRC, 1998: Vol. 5, Ch. 9, Section 33)

However, other victims did not agree or could not see amnesty in this broader light.

Other issues that I have been getting from newspapers is that Eugene de Kock says he’s going to ask amnesty from you. I contest this ... how do you go about forgiving this person who is a cruel murderer, who killed a defenceless person who’d never killed anyone, a person who’d never raped anyone, a person who never committed any crime, who was just fighting for peoples’ rights but without

22 Cynthia Ngewu’s son Christopher Piet was one of the Guguletu seven.

83 carrying a gun? I would love the Commission to assist me there. (Sepati Mlangeni for husband Bheki Mlangeni, testified in Johannesburg, May 2, 1996)23

I want them to be prosecuted, otherwise I’m going to be mad, because we must be joking, talking about democracy and reconciliation, to me it doesn’t make sense. I mean the reason why you must have reconciliation with these people, I understand is because they say these people have got fire power, that they will rock the boat. Oh my God it’s a big joke, these people, the fact that they are threatening democracy, it must be enough reason why we should prosecute them. (Mr. Ranyaoa for his brother Kunyamane Ranyaoa, testified in Johannesburg, May 2, 1996)24

They must be branded for what they are, murderers. This is difficult to say, but in my heart of hearts I’d like to see them forever in a cage, where people could spew their disgust of such creatures on them. I want our society to redevelop the moral attitude that to kill another human being is a totally and absolutely unacceptable sin. I don’t care what they’ve been through in their lives, what they’d been taught as children to believe. (Philip Quinn for sister Jackie Quinn, testified in Durban, May 8, 1996)25

Shea argues that after the TRC:

Objections to the very notion of amnesty have persisted. Critics argue that, aside from contributing to an atmosphere of impunity, amnesty lends an aura of legitimacy to the heinous acts that were committed in the name of apartheid, revictimizes the survivors of horrific acts, and risks debasing the whole society in the process. (2000: 59)

The main arguments used by the TRC to justify amnesty were that there was little choice due to the fragile nature of the negotiated settlement and that the TRC would deliver more in terms of information and material restitution than criminal prosecutions. (TRC, 1998: Vol. 1, Ch. Sections 22-23; Vol. 1, Ch. 5, Section 75) It also argued that

23 Bheki Mlangeni was working on the Harms Commission (set up in response to revelations by police death squad operative, Dirk Coetzee, and others of abuses by the security forces) when he was killed by a parcel bomb in 1990. 24 Kunyamane Ranyaoa went into exile as an ANC cadre in 1985. He was rumoured to have returned and joined the Askaris (black death squads within the police), but his family believe he may have died in Angola. 25 Jackie Quinn was married to an ANC member. Both were killed in a cross-border raid in Lesotho in 1985.

84 accountability was built into the amnesty process, in that perpetrators were required to meet the following conditions:

a) Applicants were required to apply for amnesty for each offence committed.

b) Applications had to be made within the time frame laid down in the legislation.

c) Perpetrators were required to make full disclosure of their crimes in order to qualify for amnesty.

d) Amnesty hearings involving gross violations of human rights were to take place in public, save in exceptional circumstances.

e) Amnesty had to be granted on the basis of a set of objective criteria.

f) Amnesty could not be automatic; it would not be granted for certain heinous crimes.

g) The name of the persons to whom amnesty had been granted, together with information relating to the crimes for which they were granted amnesty, would be published in the Government Gazette and in the report of the Commission.

h) The amnesty provisions in the Act required applicants to declare the nature of their offences – effectively acknowledging their culpability. In cases where amnesty applications were not made or were unsuccessful, the way was left open for conventional criminal trials, where the prosecuting authority decided that there were sufficient grounds for prosecution. (TRC, 1998: Vol. 1, Ch. 5, Section 60)

Perpetrators would be investigated, questioned and named. This latter procedure is justified in the restorative justice literature as shaming the perpetrator and also contributing to a process of socialisation against future crimes. (Braithwaite and Pettit, 1990: 87-91) Restorative justice is an approach which aims to include perpetrators, victims and the broader community. It pre-existed the TRC as a concept in international law and was developed by the commission to be defined as a process which:

a) seeks to redefine crime: it shifts the primary focus of crime from the breaking of laws or offences against a faceless state to a perception of crime as violations against human beings, as injury or wrongdoing to another person;

85 b) is based on reparation: it aims at the healing and restoration of all concerned – of victims in the first place, but also of offenders, their families and the larger community;

c) encourages victims, offenders and the community to be directly involved in resolving conflict, with the state and legal professions acting as facilitators;

d) supports a criminal justice system that aims at offender accountability, full participation of both the victims and offenders and making good or putting right what is wrong. (1998: Vol. 1, Ch. 5., Section 82)

As such, the TRC sought to facilitate mediation between victims and perpetrators where possible, and encouraged perpetrators to make apologies to victims and communities. (See Chapter 4) Beyond this, the TRC was mandated to make recommendations to ameliorate the damage caused by abuse, and consider other methods of applying accountability.

The TRC pursued a moral argument to encourage individuals and collectives to hold themselves accountable. Beyond this, it put forward reparation as means of taking “collective accountability” for the damage caused. Corlett claims that like punishment, reparations have some important expressive features: they publicly state that society disavows the wrongs committed and will seek to attain higher standards of justice. (2001: 238) Beyond this, transformation of society and the state were put forward by the TRC as ways of collectively ameliorating the damage caused by Apartheid.

The road to reconciliation, therefore, means both material reconstruction and the restoration of dignity. It involves the redress of gross inequalities and the nurturing of respect for our common humanity. It entails sustainable growth and development of the spirit of ubuntu ... It implies wide-ranging structural and institutional transformation and the healing of broken human relationships. It demands guarantees that the past will not be repeated. It requires restitution and the restoration of our humanity – as individuals, as communities and as a nation. (TRC, 1998: Vol. 1, Ch. 5, Section 26)

The TRC’s approach to what sort of change was needed – in terms of reparation and socio-economic transformation – seems in many ways to have been a very sensible one. (This will be covered in Chapter 6.) However, it again touched on important areas of

86 theoretical debate. A liberal approach to social justice concentrates on the need for equal rights, and equality of opportunity. Inequalities of outcome will exist, but if these are based on merit then the situation is just. (Marshal, Swift and Robbers, 1997: 7) For merit, various other liberal theorists have substituted the concepts of desert, ability, effort, contribution and moral merit. (Arthur and Shaw, 1991: 133) Marxists have critiqued the liberal approach to social justice, arguing that it fails to take into account socially-determined differences in merit/desert/ability and power differences in determining ways of thinking about these attributes. Despite a formal equality of rights, or even formal equality of opportunity, class or other social differences will continue to produce an inequality of outcome. This, it could be argued, is especially so in South Africa where a particular section of the population have been systematically denied rights and opportunities for a long period of time. For Marxists, social justice means not only the amelioration of inequality, but changes in power relations. This is because, as Nielsen points out, inequality under capitalism is more than a system of differential distribution but a system of unequal relationships between classes. (1991: 234)

Different perspectives on these theoretical issues were linked to different ideas in South Africa about what sort of change was needed, and therefore what the TRC should be trying to recommend and promote. For instance, the “systemic view” includes criticism that the TRC should have done more to promote and argue for the need for systemic change. However, within this, perhaps the important questions which remained were related to the accountability of individuals and collectives in relation to future change. Rather than making specific recommendations in terms of who should pay, the TRC floated a number of options to be considered by government, and stressed the moral responsibility of “all” to commit to reconciliation. This approach of “collective accountability” was unfortunately met with resentment by those who felt that “all” were not equally responsible, and did not create the results that the TRC initially hoped. (This will be covered in detail in Chapter 6.)

Cooper writes that in situations where collective responsibility is not distributed to individual members, what seems to be expected is self-judgment (taking some share of

87 the blame). He goes on to suggest that rather than imposing a judgement on individuals, “Perhaps what is required is an act – an apology, an expression of remorse, an owning to the harm they have done, an acknowledgement”. (2001: 213) To encourage this, the TRC made a strong moral argument for voluntary accountability through acknowledgement, apology and contributions to reparation and transformation. However, there was no way of guaranteeing that this would be forthcoming.

If one approaches responsibility and accountability from the standpoint of morality – one is more interested in the motives of the individual or collective, in obtaining an expression of remorse, and in securing a voluntary contribution to ameliorating the damage which resulted. However, this is distinct from a more political conception of responsibility which is based around making an argument and findings about the responsibility of individuals and collectives – and, on this basis, holding them accountable by for ameliorating the damage which resulted. Options here include removal from office or compulsory taxation.

In compelling accountability, the TRC faced some real limitations. It did not have the power to levy those it dealt with directly (perpetrators and those at the top of the state and security structures who had ordered the abuse) to pay compensation. It did, however, have the power to recommend measures to be taken by the state in dealing with responsible individuals and collectives. In potentially making this sort of argument, a difficult question that the TRC faced was the degree to which institutions, and groups like business and white South Africans, were responsible for the past – and thus should be held accountable by levying taxes for reparation and socio-economic transformation. This question went to the heart of some of the difficult issues raised in this chapter. It is illustrative of the problems of finding social groups and institutions collectively responsible for benefiting from an unjust state of affairs or failing to act against it, and how this interrelates with the individual responsibility of members of those groups.

A conception of collective political responsibility which is distributive to individual members bolsters an argument for accountability by compelling every member of responsible collectives to make contributions to compensation for victims. As outlined

88 above, a conception of political responsibility is less concerned with the intentions of individuals and groups, than with the results. This allows a distinction to be made between supporting and benefiting from Apartheid. For instance, some individual whites or businesspeople could conceivably argue that they didn’t support Apartheid, so why should they pay individually? However, even where individuals did not support Apartheid, it could be argued that they should compensate victims of the past social arrangements to which they contributed or from which they benefited as a member of a particular group. This justifies levying all responsible groups and institutions (and their members) to pay for reparation (perhaps with some exemptions for exceptional “heroes”). In the case of institutions and groups which held more power in the social arrangements and benefited more, the argument for accountability in terms of contributing to compensation is heightened. These are deeply-contested issues both in theory, and also in the South African context. As evidence of this, and in response to disappointing results in terms of contributions to reparation and socio-economic change, the TRC actually added a more specific political argument for business taxation in the codicil to its Final Report, released in 2003. (See Chapter 6.)

Conclusion

The TRC did not and could not have come up with an approach which resolved the theoretical debates around responsibility and accountability for human rights abuses which I have outlined in this chapter. These are hotly-debated and contested issues. They are related also to different conceptions of responsibility and accountability which existed in the South African social context, and to what the TRC could or should have done in establishing these. In the following chapter, I move on to investigate how these debates were present within and impacted on the TRC’s work

89 Chapter 4: Perpetrators and state institutions

The purpose of this chapter is to begin to look at how theoretical and contextual debates were present within and impacted on the TRC’s work. In particular, this chapter looks at the issue of the responsibility of individual perpetrators and state institutions – both within the TRC’s hearings and in the formulation of the findings contained in the Final Report. It also considers the practical implications of the difficulties the TRC encountered in its discussion of responsibility and accountability – in terms of the impact on public perceptions of these aspects of the TRC’s work.

Individual perpetrators

An important problem that emerged in the TRC’s amnesty hearings was how to deal with the individual responsibility of perpetrators, in relation to social context and collective responsibility. In its Final Report, the TRC refers to the complex interaction of social context and individual pathology as causes of abuse. It writes:

These three political frameworks, the cold war, anti-colonialism and the racist and oppressive apartheid regime, ideologically fuelled by Christian-Nationalism and increasing militarism, provided the arguments and justifications, the passions and the furies for the eventual commission of dreadful deeds. (1998: Vol. 5, Ch. 7, Section 84)

Beyond this it considers a range of individual psychological explanations, but tends to lean towards explanations based on group dynamics: “Put most simply, people do not act only due to personal or individual attributes. We also act in terms of the norms, values, standards of groups that provide us with social identities (racial, national, ethnic, gendered).” (TRC, 1998: Vol. 5, Ch. 7, Section 101) The TRC argues that these lay the preconditions for abuse, and moves on to consider the range of “triggers” for violence. Included within this are the motivations of individuals in relation to groups – such as compliance, identification and internalisation of group values. (TRC, 1998: Vol. 5, Ch. 7, Section 116)

90 Individuals were seen to exist in social context, and in relation to important collectives, but to what degree this affected their choices, and to what degree they should be held responsible despite this were difficult issues. For instance, Tutu writes: “We shouldn’t underestimate the power of conditioning. That is why I hold the view that we should be a little more generous, a little more understanding, in judging the perpetrators of human rights violations”. (1999: 204) He talks again and again of his surprise and pride that any whites opposed the system which so benefited them. However, elsewhere he emphasises individual agency: “When some did own up, they passed the blame onto others – ‘We were carrying out orders’ – refusing to acknowledge that as morally responsible individuals, each person has to take responsibility for carrying out unconscionable orders”. (1999: 217-218) The TRC generally emphasised individual responsibility, but it attempted to integrate this with notions of social context and collective responsibility. The complexity of this discussion emerged in its amnesty hearings.

Context was introduced into the hearings by perpetrators and those representing them, and by the commission itself. It was often included in opening statements by perpetrators or their lawyers. During questioning, the commission asked the applicant about their background, what they had done, why they had committed the act, whether they had been ordered, what knowledge or opinion the ANC or NP (for example) had of their actions. Perpetrators also made important appeals to context. This was partly because applicants had to establish that their crimes had a political motive, but was also a means of attempting to mitigate individual responsibility. For example, Michael Naidoo argued for amnesty applicant Brian Mitchell, a police officer involved in the Trust Freed massacre in 1988:

The case that is made out on behalf of the applicant is that the Brian Mitchell of the Trust Feed massacre was a Brian Mitchell steeped in the indoctrination of the apartheid system. He was at that time shrouded in a cocoon of ignorance, largely encouraged, fostered and nurtured by the system of apartheid, which curtained him off from any meaningful communication with his fellow human beings, with the black people whom he saw as nothing more than the swart kaffir. (Statement at amnesty hearing, Pietermaritzbrug, October 15, 1996)

91 While Naidoo intended to evoke sympathy for Mitchell with this presentation, he drifted towards absolving Mitchell of any responsibility for his actions. Individual agency is eclipsed by social structure. The TRC did actually pick up on this in other hearings. For instance, the following interchange occurred in the amnesty hearing of police death squad operative Dirk Coetzee, for the infamous murder of Griffiths Mxenge:

Chairman: Mr. Coetzee, you’ve stated in evidence that you grew up in a conservative Afrikaner house.

Mr. Coetzee: That’s correct, Mr. Chairman.

Chairman: Would you advance that for an excuse for committing these murders?

Mr. Coetzee: No, Mr. Chairman. I think we must look at it in context, not only the … conservative Afrikaner house that I grew up [in], but the complete environment, the complete non-contact at all with the black Afrikaners [sic] of my age.

Mr. Chairman: You grew up in a city in Pretoria.

Mr. Coetzee: That is correct, Mr. Chairman.

Chairman: Many conservative Afrikaners grew up on farms.

Mr. Coetzee: That’s correct, Mr. Chairman.

Chairman: But they didn’t become murderers, and even Afrikaners growing up in cities didn’t become murderers.

Mr. Coetzee: Yes, Mr. Chairman. It’s difficult to explain; I can just by indicating that never before I joined Vlakplaas did I commit any murders, stole cars, or anything to that extent, and never thereafter. It was a war situation as I saw it, and it was a question of using the same methods that the enemy used – illegal methods – to achieve our goals; namely to try and prevent the total onslaught from succeeding, the revolutionary onslaught. (testimony at amnesty hearing, Durban, November 6, 1996)

Beyond this, perpetrators within the security forces detailed the orders they were given to commit abuses. While this was important and necessary information for the commission to draw out, it led to a concern in some circumstances that perpetrators were shifting responsibility.

92 Mr. B. Williams: I want to put it to you, Mr. Mbelo, that you have tried to hide behind orders and circumstances to justify your conduct. You have not come here unequivocally to say to this Committee and the families that you have done wrong. What do you say about that?

Mr. Mbelo: Chairperson, the first thing, if I did not want to tell you what I know about this, I would not have come before this Commission and if I did not want the members of the family to forgive me, I would not have come … I have come here prepared to face the music of whatever I have done in the past. (testimony at amnesty hearing, Cape Town, November 17, 1997)

In response to appeals to context and orders, the TRC chose to bring the discussion back to individual responsibility – even if this were only in terms of failing to resist or act to change the broader influences which pushed pereptrators towards abuse. Some perpetrators actually admitted such responsibility. William Basil Harrington, a policeman involved in the murder of an ANC activist, said:

In conclusion I would like to grab the opportunity, firstly, to apologise to Mr. Jama’s family and parents for what I was and that I am sorry that politics turned me, as a young 21-year old man, to what I was. Secondly, the previous government made me fight against the ANC and identified them as the enemy and I would like to ask you to forgive me for what I did to your son. Thank you very much. (testimony at amnesty hearing, Pietermaritzburg, February 10, 1997)

While this is phrased as an apology for the context in general (for which perpetrators really weren’t individually responsible) – it implies that he should have resisted.

The amnesty hearings dealt with individual perpetrators – and the TRC’s work in these hearings was admirable in many senses. But through the hearings, a picture began to be established of systematic torture, killing and abuses – which many claimed to have been specifically ordered or sanctioned by the state. For instance, Commissioner Richard Lyster argued:

… there is another view … that is supported by the cumulative effect of the testimony that we have received in this Commission and by the amnesty applications of very senior people – I’m not talking about sergeants, I’m talking about colonels and generals – the cumulative effect of amnesty applications which suggest … that there was a well co-ordinated strategy to target and eliminate

93 people that the Government agencies had in fact identified. (testified at the State Security Council hearings, Cape Town, December 4, 1997)

The TRC then faced the difficulty of how to establish individual and collective responsibility for the orders and policies which resulted in abuse. These issues were at the forefront of the hearings into the political parties and the security structures.

The politicians and parties

The TRC approached the political parties to participate in hearings in the hope that it could secure admission of responsibility and apology for what had happened on both sides in terms of gross human rights violations. To promote this, the TRC stressed a moral approach. In his introduction to the hearings, Tutu said:

We have another opportunity in the TRC process for an exercise of statesmanship, not for the scoring of cheap points or making party political capital, an opportunity to move … beyond mere legality, beyond a literal correctness to another plane, another moral realm where other dynamics, other values operate. You have such an opportunity today. (Statement to the political party recall hearings, May 14, 1997)

However, it was not possible to force parties to participate in this way. In the hearings, a number of debates emerged in terms of how to interrogate and attribute individual and collective responsibility in social context.

The ANC

The TRC’s emphasis on individual responsibility and morality emerged as sources of conflict with the ANC. Throughout its hearings, the ANC was careful to stress the broader political and social context of the injustice of Apartheid and the “just cause” of the liberation movement. In the hearings, then deputy president Thabo Mbeki stated:

… because a liberation movement takes up arms to advance the interests of the people, because its strength and success depend on popular support, and because it necessarily has to pursue the objective of the greatest possible isolation of the oppressor regime from the people as a whole, it conducts its military campaigns in ways that seek to win the allegiance and support of the people. In actual terms for

94 us this meant not only that we were engaged in a just war, but also that we should conduct that war in a manner consistent with humanitarian principles governing the conduct of the war ... It was in this context, Chairperson, that we acceded to the Geneva Protocols … of the humanitarian principles governing the conduct of war. However, Chairperson, this does not mean that aberrations did not occur. (testified at the political party recall hearings, Cape Town, May 12, 1997)

This broader context was raised by the ANC as a means of mitigating individual responsibility. For instance, the commission interrogated the ANC leadership about the actions of its members against Inkatha Freedom Party supporters in the period 1990- 1994. In response to this, Mbeki says:

They were being attacked by covert units operating in accordance with the wishes of the apartheid regime and by organised armed vigilantes which had, with the assistance of the National Party’s intelligence and security forces, established informal military bases in several hostels, from which to launch attacks on civilians in their homes or trains, or at bus and vigils. (testified at the political party recall hearings, Cape Town, May 12, 1997)

Mac Maharaj, a member of the National Executive Committee, argued in relation to the practice of “necklacing” suspected informers and collaborators that: “It had to be reacted to as something that the masses had taken up under conditions of extreme brutalisation and repression”. (testified at the political party recall hearings, Cape Town, May 12, 1997) And elsewhere: “There was an atmosphere of extreme repression and intimidation. I think that context needs to be understood.” (testified at the political party recall hearings, Cape Town, May 12, 1997)

As outlined in Chapter 1, the ANC generally wanted to prioritise collective responsibility – within political context. In questioning the ANC along these lines the commission attempted to bring the discussion back to the ANC’s collective responsibility for the actions of its members. However, Mbeki’s comments, in particular, during these hearings displayed a growing concern that the TRC’s (moral) emphasis on abuses on both sides risked taking things out of (political) context. So, even in terms of dealing with black-on-black violence, Mbeki finished his testimony by re-focussing attention on the NP:

95 So it’s important that the National Party should cooperate to deal with this question. Let it assist all of us by coming forth with this information as to what structures existed, what persons and all of this, who got involved as organised units in this violence, so that we can deal with this matter once and for all, it’s important. It doesn’t help to be having some petty political battle with the ANC (“Why does the ANC not admit its own involvement in this black-on-black violence?”) as a mechanism to hide the real killers who are carrying the guns? It is wrong, it’s irresponsible and I think that the Commission should really make a very serious effort to get them to come out with the truth. (testified at the political party recall hearings, Cape Town, May 13, 1997)

Despite this, where collective political responsibility was concerned, apologies were more forthcoming. Maharaj said:

In case there is any misunderstanding, the African National Congress unreservedly apologises to all civilians who lost their lives, whether in crossfire or any other circumstances. Our aim has never been to attack civilians. And whatever the intensity of the struggle where civilians have died, we believe that it is appropriate that in our country today, in the interests of reconciliation and unity that we should apologise, and we do so. (testified at the political party recall hearings, Cape Town, May 12, 1997)

Such admissions of responsibility were much less forthcoming on behalf of the NP.

The NP

The main line of argument by the NP throughout its hearings was that the policy of Apartheid was a product of social context, that no-one in the party leadership could be held individually responsible for the abuse that resulted, and that “overall” responsibility could only be ascribed in a very general sense.

When faced with mounting evidence in the amnesty hearings of widespread abuse, the NP repeatedly claimed that it had never ordered or sanctioned it. Orr reports of De Klerk’s testimony:

Mr. De Klerk blustered, flustered, objected and denied. He refused to accept that any human rights violations had occurred with the knowledge or sanction of senior government officials and made it clear that government policy never contemplated

96 abuses as a method of maintaining power. By so doing, he abandoned every one of his operatives – from general to foot-soldier. (2000: 222)

De Klerk stated in the NP’s defence:

Mr. Chairman, a perception has developed that the National Party is not accepting overall responsibility for its part in the conflict of the past, that National Party politicians are leaving the security forces in the lurch, that we are washing our hands of that which was done in terms of our policies and decisions. Let me state clearly that the National Party and I accept full responsibility for all our policies, decisions and actions. (testified at the political party recall hearings, Cape Town, May 14, 1997)

However, he went on to insert a caveat: “We stand by our security forces who implemented such policies and decisions and all reasonable interpretations thereof.” (testified at the political party recall hearings, Cape Town, May 14, 1997) [my italics]

De Klerk then outlined a number of categories of perpetrators from within the security forces: those who acted without the authority or knowledge of the party; those who made a bona fide misinterpretation of existing state policies or who were overzealous/misguided; and those who were mal fides and totally unauthorised. In relation to the latter, De Klerk claimed:

You see you are dealing with a chain of people, what is possible that lower down, getting a message or an order from somebody of superior rank might have been told, I don’t know, that this is authorised and such a person lower down, the lower down you go the more I have sympathy for the person receiving an instruction from a superior officer if that superior officer creates the impression that don’t worry, although this is a very far-reaching order that you’re getting I give you the assurance it’s been cleared. (testified at the political party recall hearings, Cape Town, May 14, 1997)

While earlier accepting “full responsibility”, De Klerk then shifted responsibility off the NP leadership and onto the security forces and the individual operatives. Even when faced with accusations of turning a blind eye – of “official tolerance” of abuse – De Klerk again defended the NP:

97 So within my recollection we had reason to believe firstly, that there were measures in place to assist in the prevention of this, and definitely within my recollection … there was a dramatic improvement of those measures in order to make sure that we will prevent that. (testified at the political party recall hearings, Cape Town, May 14, 1997)

In stressing the individual interpretation of orders, the NP was in part responding to the moral emphasis of the TRC. De Klerk is right that individual operatives interpreted orders and acted, based on their individual morals, beliefs and perhaps interests. It does not necessarily make sense to ask ministers or even the state president to take individual moral responsibility for this, and it is relatively easy to evade assertions of such responsibility. In the same way, it does not necessarily make sense to ask an individual to take moral responsibility for the actions of a broader collective, and it is even less likely to be voluntarily accepted. Responsibility thus emerged as a contested issue – both in terms of underlying theoretical debates, and contextual ones. The TRC approached the NP with a moral appeal to accept responsibly, but this was denied and contested.

In terms of political responsibility, it was potentially possible to argue that individuals like De Klerk (as a member and leader of a significant institution) were responsible for influencing the actions of others (especially if that person is in a position to order someone else). In a theoretical sense, collective political responsibility can be applied by holding Cabinet collectively responsible for government policy (including members and leaders within this), and collectively responsible for whatever resulted. In this sense, it matters only that abuse occurred, and it does not matter what the orders in fact were, or who interpreted them. However, this sort of responsibility was expressly denied throughout in the TRC’s hearings.

For instance, De Klerk went on to explain that the only responsibility the NP was prepared to make was a contributory one.

We accept that our security legislation and the state of emergency created circumstances which were conducive to many of the abuses and transgressions against human rights which forms the basis of the Commission’s investigation. We acknowledge that our implementation of unconventional projects and strategies likewise created such an atmosphere … I accept, without qualification, overall

98 responsibility in respect of the period of my leadership as State President. But like … many others the National Party also says that many things happened which were not authorised, not intended and of which we were not aware. The recent information of atrocities I find as shocking and as abhorrent as anybody else. It came to me as just a shocking revelation as to anyone else … Having said all that let me say the National Party does not shirk its responsibilities. We are not running away from our accountability. We accept overall moral and political responsibility for our part in the conflicts of the past. (testified at the political party recall hearings, Cape Town, May 14, 1997)

This rather vague and ambiguous acceptance of responsibility avoids taking full responsibility for the actions of those under the NP’s command and for the government policy which resulted in abuse (whether by ordering or simply by allowing).

In the same way that social context was used to mitigate individual responsibility in the amnesty hearings, it emerged as a key way of shifting collective responsibility in the political party hearings. When questioned by the TRC about responsibility for government policy which resulted in abuse, the NP tended to argue that its policy was a product of its context. In his submission, De Klerk said:

Let me place once and for all a renewed apology on record. Apartheid was wrong. I apologise in my capacity as leader of the National Party to the millions of South Africans who suffered the wrenching disruption of forced removals in respect of their homes, businesses and land, who over the years suffered the shame of being arrested for pass law offences, who over the decades and indeed centuries suffered the indignities and humiliation of racial discrimination, who for a long were prevented from exercising their full democratic rights in the land of their birth, who were unable to achieve their full potential because of job reservation, and who in any other way suffered as a result of discriminatory legislation and policies. This renewed apology is offered in a spirit of true repentance, in full knowledge of the tremendous harm that apartheid has done to millions of South Africans. (testified at the political party recall hearings, Cape Town, May 14, 1997)

However, in the NP hearings Apartheid is portrayed as a response to a set of complex determining factors that the NP had to work within. Within this, white voters were ascribed some of the blame. For instance, in later hearings into the security structures of the state, NP ministers state:

99 The point I want to emphasise Mr. President, is that neither the State Security Council, nor the Cabinet was a sinister structure, divorced from the sentiments of the voters and the institutions which the government represented. (R.F. “Pik” Botha, former NP minister for Foreign Affairs, testified at the State Security Council hearings, Johannesburg, October 14, 1997)

As ministers and as government, we didn’t land up in parliament of our own accord, we were elected and for the group of people who did have the franchise that was a democratic process, but not everybody had the vote … So we submitted to the voters who did have the vote. We submitted policy and guidelines in terms of which and on the basis of which they elected us, so they were all jointly responsible. (Adriaan Vlok, former NP minister for Law and Order, testified at the State Security Council hearings, Johannesburg, October 14, 1997)

While white South Africans should perhaps shoulder some of this responsibility, it was difficult for the TRC to include this discussion – most immediately because it was impossible to call anyone who could individually or collectively account for the political and voting aspirations of the white population. In terms of dealing with the responsibility of white South Africans for contributing and standing by, the TRC attempted to influence this group implicitly, through its moral appeals for responsibility and accountability. This will be considered further in Chapter 6.

Elsewhere, De Klerk laid the blame on the liberation movement:

It was not only the strict security legislation and the state of emergency which created an atmosphere conducive to abuses and transgressions. The unconventional nature of the revolutionary threat created circumstances in which conventional responses proved to be less and less effective. The revolutionary strategies adopted by the government’s opponents blurred traditional distinctions between combatants and non-combatants, between legitimate and illegitimate targets and between acceptable and unacceptable methods. The normal processes of law and even the government’s tough security measures seemed incapable of dealing with this situation. Members of the security forces watched with increasing frustration while revolutionary movements organised, mobilised and intimidated or killed their opponents seemingly at will. The security forces were expected to play by the rules while their opponents could and did use any methods that they liked. There was a perceived need for unconventional counter-strategies of the kind developed by the British and others in successful campaigns against insurgency and terrorism. (testified at the political party recall hearings, Cape Town, May 14, 1997)

100 This was echoed in later hearings into the state security structures.

In terms of the laws of the country, those people who opposed the government wanted to overthrow the government were regarded as terrorists and actions against them were authorised. The fact the opponents of the government committed acts of violence against innocent civilians and were guilty of certain criminal acts and in general brought about a condition of chaos and disorder led to the fact that my own conduct and those of the police were focused on combating this lawlessness. The perspective that the opponents of the government were engaged in a freedom struggle was not a priority for us. It was not decisive for myself and the police in the carrying out of our daily tasks. We were rather focused on the unrest and violence which was taking place in the country in which we were trying to deal with and to defuse at all costs. (Adriaan Vlok, testified at the State Security Council hearings, Johannesburg, October 14, 1997)

In these quotes, the broader social context is portrayed as something external and determining. Portraying themselves as a “product” of “the system” was also key to NP appeals to shared responsibility.

We, like the ANC, and all the other parties of South Africa, are the product of a complex and tormented history. We do not regard ourselves as being morally superior or inferior than any other party. The glory of the past seven years is that together, together we have been able to overcome the divisions and bitterness of our history. Together we have been able to create the basis for reconciliation, for forgiveness and for a better and more peaceful future for all our people. I sincerely believe, Mr. Chairman and members of the Commission, that we dare not allow this historic achievement to be torn apart by reviving the bitterness and the animosity of the past. (F.W. De Klerk, testified at the political party recall hearings, Cape Town, May 14, 1997)

All of this raises the important problem that it was difficult for the TRC to pin down NP responsibility for the social context within which abuse occurred. It was going to be impossible (and did not necessarily make sense) to get individuals appearing at its hearings, even on behalf of a collective, to take moral or political responsibility for the creation of “the system”. Contrary to the “systemic view”, I would argue that it was not really possible for the TRC in general – as an institution based on individual testimony and mandated to make findings about individuals and collectives – to establish responsibility for “the system”. It was more possible in theory to establish collective

101 political responsibility for government policy and its results (and distribute this to key individuals). Despite the TRC’s moral appeal, neither moral nor political responsibility was voluntarily accepted.

The difficulties the TRC faced in discussing responsibility continued in the hearings into the State Security Council.

State Security Council

Having been unable to gain an admission from the NP of its role in ordering gross human rights violations, the TRC turned to the security structures of the state. In response to the economic crisis and political upheaval facing the regime in the late 1970s, it adopted a “total national strategy”. This was formulated as a co-ordinated state response at all levels – psychological, political, economic, diplomatic, social, religious and military. (Sparks, 1990: 309) The absorption of the military and security forces into the executive and their influence on a wide range of policy matters culminated in the rise of the State Security Council (SSC) after 1978. This council stood at the top of the newly established National Security Management System, with bodies going right down to the local level.

In his opening remarks to the hearings into the SSC, Tutu again made a moral appeal:

We hope this particular hearing on the State Security Council will go a long way to help establish the truth, the truth especially about accountability; the truth about where in fact does the buck eventually end ... We are certain that those appearing before us in this session are honourable men who won’t engage in semantic obfuscations; who will tell the world this is what was intended. And we hope that the truth that surfaces is not in order to pillory anyone; is not in order to go forward to prosecution, it is to help in the process of healing, in the process of reconciliation in our land. We are certain that those going to testify before us will want to go down in history as having helped to heal a traumatised, a deeply divided and wounded people. (Statement at the State Security Council hearings, Johannesburg, October 14, 1997)

However, in response to questioning about specific incidents, those who appeared denied and shifted responsibility. Ministers from particular departments shifted

102 responsibility to others. Parliamentarians shifted responsibility to the security forces. The security forces shifted responsibility to the parliamentary and party structures. Lack of reporting from lower structures was also blamed. In questioning former NP minister for Foreign Affairs R.F. “Pik” Botha about specific incidents, a frustrated Commissioner Richard Lyster got to the centre of the problem:

Mr. Botha the impression that one gets from your answer and from other answers that you have given, and from answers that have been given by other people who have appeared in similar forums as you are now appearing, is that you and they are not absolutely sure who in fact was running the country at that time or who was responsible for making vitally important decisions about this country and what it did and how it was perceived abroad. (Statement at the State Security Council hearings, Johannesburg, October 14, 1997)

In general, however, those appearing in these hearings did tend to express more sympathy for subordinates, and accept more responsibility for the chain of command. Adriaan Vlok, former NP minister for Law and Order, argued:

The fact that most, the majority of policemen were Afrikaans-speaking Christians and conservative people who were supporters of the National Party and its policies could perhaps be an explanation for many facets of the actions of policemen during the old era. I have very little doubt that illegal and unlawful conduct by policemen committed during the struggle were done on the basis of their education and the sense of their duty towards the government and the fact that there was very little acceptable criticism against apartheid which could have influenced them to question apartheid … I believe that most policemen who found themselves in such a situation where he found himself obliged to act in an illegal way, probably did this by virtue of his position as a policemen and not from personal considerations. I further believe that probably most of these policemen acted in this way because they had a bona fides belief their conduct was in connection with the execution of their duty as policemen and for the protection and the maintenance of the constitutional dispensation to prevent the community as a result of intimidation and fear losing their confidence in the government and to protect the populace at large and in an effort to combat the unrest and violence and that they accordingly believe that they were acting within the limits of their authorisation. I really believe that very few such policemen acted for personal gain or simply out of malice or retribution. I know I didn’t act with these motives, I repeat I know I didn’t act from these motives, we were all victims of a system and of circumstances. (testified at the State Security Council hearings, Johannesburg, October 14, 1997) [my italics]

103 Some were also prepared to accept more responsibility for government policy (although not necessarily for what resulted). Botha referred to questions which began to be raised during the political party hearings over the meaning of the policy contained in SSC minutes to “neutralise” or “eliminate” leaders of the liberation movement.

I realise that the TRC is confronted by a dilemma in having to interpret the meaning or import of various words and phrases used in decisions of the Security Council dealing with action against terrorists … it was reasonable, therefore, that members of the security forces would have interpreted a phrase like wipe out the terrorists to include killing them, and unless the senior command structures of the security forces made sure that all ranks understood the distinction between a person who is directly engaged in the planning and execution of acts of violence threatening the lives of civilians on the one hand, and political opponents belonging to the same organisations as the terrorists on the other hand, lower ranks would probably not have made that distinction on their own … To plan and execute the killing of a political opponent of the government would certainly constitute an illegal activity. A number of ex-members of the South African Police have, however, testified at other hearings that they received clearance for killing political opponents from their seniors. They said that they sincerely believed that such orders had come from the top, or that the top must have been aware of their actions, or at least acquiesced in their actions. (testified at the State Security Council hearings, Johannesburg, October 14, 1997)

Botha went on to make the point that during this period Cabinet (and, within this, the National Party caucus and the head of state) was responsible for running the country. As such, he offered the following apology:

I could have and should have done more to find out whether the accusations that government institutions were killing and torturing political opponents were true. Not one of us in the former government can say today that there were no suspicions on our part that members of the South African Police were engaged in irregular activities. The decisive question is not whether we as a Cabinet approved the killing of a specific political opponent, we did not do so. The question is whether we should have done more to ensure that it did not happen. I deeply regret this omission. May God forgive me. (testified at the State Security Council hearings, Johannesburg, October 14, 1997)

Greater acceptance of responsibility in these hearings can perhaps be explained because those appearing (ministers and security force chiefs who had come under fire) wanted the protection of collective governmental responsibility. Botha and Vlok expressed

104 support for the idea of a sort of collective responsibility-taking by Cabinet, as an expression of general responsibility and remorse. However, no-one is prepared to take full responsibility for those under their command, or for the results of government policy. In terms of more specific responsibility, all maintained that the SSC never discussed or authorised illegal killings of activists, or support of surrogate forces.

It also became clear that in discussing collective responsibility other confusions emerged. Director of the TRC’s Investigative Unit, Glen Goosen, conducted the following exchange with former NP minister for Constitutional Affairs, Roelf Meyer:

Mr. Meyer: I am saying that there has to be an acceptability, to my mind, on the side of the previous government of a responsibility, a moral responsibility which led to the circumstances [in which operatives interpreted orders].

Mr. Goosen: But Mr. Meyer that’s precisely the point, what is the basis of that moral and political responsibility? Is it founded upon an acceptance that State policies were susceptible to a reasonable interpretation that unlawful actions were authorised or not?

Mr. Meyer: Is the question not really what moral responsibility means?

Mr. Goosen: Let’s look at – let’s leave moral responsibility, let’s look at political responsibility because you refer to political responsibility, what is the basis of that political responsibility? …

Mr. Meyer: I think what is being suggested here and it is something that I understand it also came up otherwise before the Commission is the question of a consideration of a collective moral responsibility because none of those members are still in Cabinet at this stage, so politically they could not be sacked in any event or resign. (testimony at the State Security Council hearings, Johannesburg, October 15, 1997)

In this exchange, moral and political responsibility were obviously being confused. In the last paragraph, Meyer stumbles onto the important problem of how to apply political responsibility by holding ministers and governments accountable where they have already resigned or been removed. Because of this he seems to have shifted towards using a more amorphous concept of collective moral responsibility (divorced from individual Cabinet members). In an attempt to clarify, Commissioner Wynand Malan brought the discussion back to political rather than moral responsibility:

105 Mr. Malan: If at the level of Cabinet or then for that matter State Security Council, whatever body, a decision is taken and implementation of that decision follows, don’t you accept total responsibility for that decision and its consequences? Isn’t that really the question? … frankly this is a bit of a problem that I experience with the line of questioning because I find that a construction is asked from the witness which is more one of a legal, technical or philosophical one whereas what I think is important is whether responsibility is accepted ... My question to you is, are you trying to duck some of the things that you did or are you saying: “Whatever I did I accept responsibility?”.

Mr. Meyer: I think that is what I tried to put here in a framework, exactly that, but I have the impression that some of the questions indicate that I must interpret what individuals might have had in mind in terms of consequences and so forth and that I can’t make a deduction on. (testimony at the State Security Council hearings, Johannesburg, October 15, 1997) [my italics]

In a certain sense, Meyer was right that he could not take responsibility for the moral thoughts and actions of others. However, when pressed about collective political responsibility, Meyer shifts back to blaming “the system”.

Mr. Goosen: Does that not imply that … it is necessary to accept political responsibility for the creation of a climate in which it may have been reasonable for members of the security forces to have unlawfully killed political opponents of the government?

Mr. Meyer: My suggestion would be that the climate was there in any event. I don’t think it was necessarily created by the political or military or police chiefs at the point. I think the climate was there and it’s for that reason important that one keeps in mind the nature of the conflict to my mind. (testimony at the State Security Council hearings, Johannesburg, October 15, 1997)

It does not really make sense to blame the NP for the social context in its entirety, and this was really outside of the scope of the TRC’s deliberations. During these hearings, commissioners conducting the questioning were keen to push the NP to accept responsibility more than it did, and to prevent it from shifting responsibility through claims not to have known, or by blaming “the system”. But as can be seen from the exchanges above, the TRC encountered numerous difficulties in discussing moral and political responsibility. The relationship between individual (and collective) agency and social structure also emerged as important issues. In terms of establishing responsibility,

106 it emerged as important for the TRC to distinguish between asking a collective to take responsibility for social context or “the system” (an abstract theoretical enquiry not really suited to a commission like the TRC) or responsibility for government policy and its results in contributing to abuse (whether these were supposedly “intended” or not).

Overall, the TRC had difficulty defining what if was asking individuals and collectives to take responsibility for and in what sense. The TRC had to chance to further clarify these issues through its Final Report.

The TRC’s findings

The difficulties the TRC encountered in the more general discussion and promotion of responsibility and accountability it sought to provide through its hearings was less obvious in the Final Report. The TRC made a number of important findings.

The TRC found that the Inkatha Freedom Party had been involved in gross human rights violations and collaboration with the regime’s security forces. (TRC, 1998: Vol. 5, Ch. 6, Section 121) It found against the ANC for abuses in its training camps, and attacks on civilians. (TRC, 1998: Vol. 5, Ch. 6, Sections 136-137) It found against the United Democratic Front (UDF) for failing to curtail the actions of its members in killing suspected informers and others. (TRC, 1998: Vol. 5, Ch. 6, Section 144) This was aided by the fact that the latter two had formally accepted collective political responsibility for the actions of their members. The TRC found that the vast majority of the violations during the mandate period had been committed by the Apartheid state and its allies. (TRC, 1998: Vol. 5, Ch. 6, Section 77) The TRC named various structures in the government, the army, the police, the security establishment and a number of key individuals such as former state president P.W. Botha and former defence minister Magnus Malan. On President Botha, the TRC details his involvement in particular circumstances, but also says: “by virtue of his position as head of state and chairperson of the SSC, Botha contributed to and facilitated a climate in which the above gross violations of human rights could and did occur, and as such is accountable for such violations”. (TRC, 1998, Vol. 5, Ch. 6, 102) In its findings, the TRC succeeded in laying

107 responsibility at the feet of state institutions and certain key individuals within it. As such, the TRC made findings which were a mixture of individual and collective responsibility. It successfully asserted this responsibility where it was denied. However, the contested issue of responsibility emerged again in its findings on the SSC.

Interestingly, here the TRC briefly considers the relationship between the collective political responsibility of the SSC and the individual responsibility of its members.

Certain members of the SSC (the state president, minister of defence, minister of law and order, and heads of security forces) did foresee that the use of words such as “take out”, “wipe out”, “eradicate”, and “eliminate” would result in the killing of political opponents. They are therefore responsible for deliberate planning which caused gross violations of human rights [in terms of Section 4(a)(iv) of the Act]. The commission therefore finds them to be persons involved in the gross violations of human rights which did occur and, furthermore, that the SSC was an institution involved in gross violations of human rights [in terms of Section 4(a)(iii) of the Act]. Certain members of the SSC (particularly those not directly involved in security matters) did not foresee that the use of these words would result in killings, but nevertheless remain politically and morally accountable for the deaths that occurred [in terms of Section 4(a)(v) of the act] for the following reasons. They failed to exercise proper care in the words they used; they failed properly to investigate killings that occurred and they failed to heed complaints about abuse. Through their use of militant rhetoric, they also created a climate where violations of human rights were possible. They are therefore guilty of “official tolerance” of violations and are accountable for such violations. (TRC, 1998, Vol. 5, Ch. 6, Section 99) [my italics]

This quote shows again that the TRC did not specifically consider the distinction between political and moral responsibility. The moral focus of the TRC perhaps explains the emphasis on the intentions of those under investigation. However, beyond this there is a political argument which asserts collective political responsibility for government policy and what resulted, regardless of whether individuals who made up the SSC intended or “foresaw” the consequences. Interestingly, the TRC saw the need to strengthen this argument in the codicil to its Final Report, by developing its argument about the known or intended consequences of orders and government policy. It reconsiders the responsibility of those who ordered abuse, based on concepts in international law.

108 Under international law, an individual may be held responsible for omissions by the doctrine of superior or command responsibility … this doctrine is ancient in origin and emerged as an important principle particularly after World War II. It has also been a subject of considerable importance for international tribunals, which have recognised command responsibility as a principle firmly established in international law. (2003: Vol. 6, Section 5, Ch. 2, Section 118)

“Omissions” in this sense include tolerating or ignoring abuse. The TRC then goes on to say: “Using this principle, all former heads of the apartheid state could be held responsible for the commission of gross human rights violations committed by their agents”. (2003: Vol. 6, Section 5, Ch. 2, Section 124)

The TRC had to deal with a range of different theoretical and contextual debates in these hearings, and in its Final Report. Beyond this had to the deal with the difficult issue of accountability.

Accountability

The TRC attempted to maximise the accountability of perpetrators requesting amnesty. Perpetrators were asked in the hearings if they were remorseful, and whether they wanted to reconcile with the victim or family of the victim. Advocates for victims or their families were allowed to question the perpetrator. Victims were often keen to confront perpetrators and ask them why they had done such things. Victims were called to express their feelings and views, and allowed to question perpetrators in some cases. In the amnesty hearing for Captain Jeffrey Benzien in Cape Town, a victim who he tortured asked:

Tony Yengeni: What kind of man uses a method like this – one of the wet bag26 … listening to those moans and cries and groans and taking each of those people very near to their deaths – what kind of human being is that Mr. Benzien? I want to understand really why, what happened? I am not talking now about the politics or your family. I am talking about the man behind the wet bag? … What goes through your head, your mind?

Captain Benzien: I have asked myself that question to such an extent that I voluntarily … approached psychiatrists to have myself evaluated, to find out what

26 This infamous torture method involves suffocating the victim with a wet bag.

109 type of person am I. I had the fortune or misfortune of growing up in a white environment in Cape Town … either through my own stupidity or ignorance, as long as I was one of the whites – the privileged whites who had an education, who had a house – I couldn’t see it being taken away. If you ask me what type of person is it that can do that, I ask myself the same question. (TRC, 1998: Vol. 5, Ch. 9, Section 36)

This was an important opportunity for victims in terms of ameliorating the damage caused by abuse and holding perpetrators accountable. Perpetrators were also encouraged to make apologies – to hold themselves accountable.

Some perpetrators did respond to this, motivated by a wish for social re-integration. For his involvement in the death of Glad Mokgatle in Bophuthatswana, Christopher Mokgatle expressed the following:

Therefore, the trouble that I have here in Phokeng, didn’t satisfy me because I saw that if I am in jail, it is not satisfactory … The better thing was to kill myself. Therefore I didn’t have food for about 76 days … I tried to hang myself about three times, but I didn’t succeed. That’s why today … I have come here to ask for forgiveness in front of the Baphokeng tribe and the children of Mr. Glad Mokgatle, and also my grand-children, because I feel I am alone, I don’t have any family any more. Thank you. (testified at amnesty hearing, Phokeng, May 20, 1996)

Others were motivated by their hopes of acceptance and a new life in the new South Africa. For his part in the killing of Amy Biehl, Ntombeki Ambrose Peni stated:

I ask Amy’s parents, Amy’s friends and relatives, I ask them to forgive me. Just to hear that they have forgiven me would mean a great deal to me. For me it would be starting a new life. I have led an abnormal life under the struggle in South Africa. I do not think I would commit such an act again because right now the situation in South Africa is different. I ask for forgiveness and I am sorry. (testified at amnesty hearing, Cape Town, July 8, 1997)

However, other victims perceived a lack of remorse on the part of perpetrators participating in the amnesty process. In a video produced by Khulumani (1997), Sylvia Dlomo-Jele, who testified before the TRC for her dead son, says that she feels amnesty

110 applicants are not serious about wanting forgiveness – that they say so to get amnesty, but are “smiling and chewing gum” in the committee hearings.

During the hearings, it became apparent that a specific apology was important to many victims, but also that material contributions were also seen as important in holding perpetrators accountable. The advocate for the victims of the Trust Freed massacre in 1988, Mr. Kajee, stated:

The community is not happy that Mr. Mitchell be given amnesty, and be released without paying the full price of his actions and serving the full sentence that has been imposed on him by Court, but they wish to make clear to the Amnesty Committee that they will leave the decision relating to whether amnesty should or should not be granted to the discretion of the Committee, as they believe that it is in the interests of reconciliation to take our country out of its dark past, particularly as Mr. Mitchell has indicated, to an extent unofficially through his counsel, that he wishes that some kind of forum be established to enable him to obtain full forgiveness from, and reconciliation with, the community and family members whose lives he has so tragically affected. The community of Trust Feed has also requested me to advise the Amnesty Committee that they will try to forgive Mr. Brian Mitchell if he becomes actively involved in the reconstruction of the community that he was responsible for destroying. (Statement at amnesty hearing of Brian Mitchell, Pietermaritzbrug, October 15, 1996)

Many victims felt that perpetrators should contribute individually. (CSVR, 1998) This was further reinforced where victims felt that they remained poor while their perpetrators remained wealthy. Thandi Shezi from Khulumani Victim Support Group says: “My comrade Duma said ‘I don’t mind to shake my perpetrators hand but when I go out of here I go back to an empty table, and he goes home to a full chicken’”. (interview conducted May, 2002)

Establishing responsibility for the past leads on to holding individuals and collectives accountable in terms of ameliorating the damage caused by abuse. There are a range of ways to achieve this – i.e. through the removal of particular individuals from positions or levying individuals and collectives through taxes. The TRC had difficulty outlining measures for accountability in the context within which it was working.

111 In terms of individual accountability, the legislation enacting amnesty removed the ability to prosecute or sue perpetrators. The TRC considered, but did not recommend lustration – the removal from office of those implicated in human rights violations. It writes:

The Commission gave careful consideration to the possibility of lustration as a mechanism for dealing with people responsible for violations of human rights. As used in several Eastern European countries, lustration (from the Latin meaning to illuminate or to purify by sacrificing or purging) involves the disqualification of such persons from certain categories of public office, or their removal from office. (1998: Vol. 5, Ch. 8, Section 17)

Instead, the TRC made the more general recommendation that political parties and the state take this into account when hiring in the future. Tutu writes in his introduction to the Final Report:

The Commission considered this question [lustration] carefully and finally decided not to recommend that this step be pursued. It is suggested, however, that when making appointments and recommendations, political parties and the state should take into consideration the disclosures made in the course of the Commission’s work. (1998: Vol. 1, Ch. 1, Section 15)

Actually implementing a policy of lustration in light of the compromise reached in the settlement would have been very difficult. One issue would have been whether removal should apply equally to those from the liberation movement. Helen Kerney, who survived the Magoo bar bombing in 1985, said in her testimony that she could come to terms with the fact that ANC leader Robert McBride, who requested amnesty for the bombing, had been appointed as an ambassador for South Africa – “a man who is a murderer and a coward is nominated to represent South Africa”. (testified in Durban, May 8, 1996)

The TRC also could not levy perpetrators or past state institutions to contribute to reparation. In retrospect, some have suggested measures to limit the possible negative effects of amnesty – and increase the emphasis on individual accountability. Wilson argues that a model which maintained some retributive elements may have been more

112 desirable – e.g. granting amnesty for criminal prosecution but not for civil claims. (2001:27) Asmal, et. al. suggest that a condition of amnesty could have been an apology from perpetrators. (1997: 17 and 23) Fanie Du Toit, who works in the Reconciliation and Social Reconstruction Portfolio of the Institute for Justice and Reconciliation in Cape Town, says: “I wonder whether some sort of community service, some sort of mediation between victim and perpetrator, a development project, some sort of offering should have happened too.” (interview conducted June, 2002) This is impossible to retrospectively apply, but may offer lessons for other processes in future. (The issue of accountability is covered in more detail in Chapter 6.)

Some accountability was established simply through the TRC’s findings of responsibility in relation to state institutions (and leaders within these). Collectives and individuals were investigated and named. However, this success was perhaps overwhelmed by the contestation of responsibility and accountability within the public spectacle of the TRC’s hearings themselves, and its moral approach.

Perceptions

Much was expected of the hearings considered in this chapter – and much disappointment has resulted. Tutu assesses the TRC’s engagement with leaders of the past regime:

… the greatest sadness that we have encountered in the Commission has been the reluctance of white leaders to urge their followers to respond to the remarkable generosity of spirit shown by the victims. This reluctance, indeed this hostility, to the Commission has been like spitting in the face of the victims. (TRC, 1998: Vol. 1, Ch. 1, Section 62)

Intricate denials and shifting of responsibility were evident throughout the TRC’s hearings. In its report, the TRC expresses disappointment over denial of responsibility:

With rare individual exceptions, the response of the former state, its leaders, institutions and the predominant organs of civil society of that era, was to hedge and obfuscate. Few grasped the olive branch of full disclosure. Even where political leaders and institutional spokespersons of the former state claimed to take full responsibility for the actions of the past, these sometimes seemed to take the

113 form of ritualised platitudes rather than genuine expressions of remorse. Often, it seemed to the Commission, there was no real appreciation of the enormity of the violations of which these leaders and those under them were accused, or of the massive degree of hurt and pain their actions had caused. (TRC, 1998, Vol. 5, Ch. 6, Section 3-4) [my italics]

The TRC set out to gain admissions of responsibility from a moral perspective and it obviously and publicly did not succeed. Van Zyl Slabbert writes:

After reading De Klerk’s autobiography I was filled with revulsion. There is not the faintest trace of personal accountability for what happened under his party’s rule. Instead there are excuses and self-glorification … Mandela’s willingness to forgive was never reciprocated by De Klerk’s confession. On the contrary, De Klerk behaved as if forgiveness was his due. That is why the Truth and Reconciliation Commission (TRC) was doomed from the start to an uphill battle as an instrument of national reconciliation … The indescribable cruelty, torture, pain, confusion and senseless suffering experienced by victims was never, other than in highly exceptional circumstances, answered with confession and accountability. (2000a: 136-137) [my italics]

While this was beyond the TRC’s control, its emphasis on morality meant that it considered responsibility and accountability in a way that disappointed some, and frustrated others who would have liked to see a greater focus on political responsibility in its discussions.

Those who ascribe to the “systemic view” have generally not concentrated on the TRC’s work with individual perpetrators in the amnesty hearings. Community activist and author on the ANC, Dale McKinley, says:

The TRC should have concentrated on the real perpetrators: business and the political leadership of the state and security forces. By not including those it failed. It allowed the foot-soldiers to come forward and tell some horrible tales in a sensational way. But it didn’t deal with the real problem. (interview conducted April, 2002)

The “systemic view” includes an expectation that the TRC could and should have better outlined the individuals and institutions responsible for “the system” of abuse under Apartheid, and held them accountable. In response to these sorts of criticisms, the

114 “practical view” points to the limitations imposed by the TRC’s limited resources and the context within which it was working – as outlined in Chapter 2. The TRC in fact made a number of well-argued findings about individual and collective responsibility. In addition, I have argued that establishing responsibility for “the system” was an abstract theoretical enquiry not really suited to an institution like the TRC. However, what became clear is that despite its emphasis on morality and consensus, the TRC was dealing with issues which were deeply-contested. This was inevitable given the times in which it arose.

In this chapter, I have drawn out how theoretical debates over responsibility and accountability emerged within and impacted on the TRC’s work. I have also drawn out how different conceptions of responsibility and accountability which existed in the South African social context led to confusing exchanges, denial and debate. All of this adds to the “procedural view”, in that it meant that the TRC had difficulty defining what it was trying to do and could realistically achieve. The ensuing confusion over its approach and role has impacted negatively on how the TRC was and is perceived. This served to fuel anger and criticisms post-TRC.

115 Chapter 5: Social institutions and groups

Many of the debates the TRC ran up against in terms of responsibility and accountability in terms of state institutions became more pronounced in terms of how the commission should deal with other groups and institutions. The purpose of this chapter is to look at how theoretical and contextual debates were present within and impacted on the TRC’s institutional hearings and in the formulation of the findings contained in the Final Report. Given that the hearings on business and labour have so far been central to debates about how the TRC dealt with collective responsibility, it was felt that a more detailed analysis of these hearings would be most relevant and useful. The chapter also considers the practical implications of the difficulties the TRC encountered in its discussion of responsibility and accountability – in terms of the impact on public perceptions of the TRC.

Expectations

As outlined in Chapter 1, the TRC justified these hearings on the basis of bringing out as complete a picture as possible of the causes, nature and extent of gross violations of human rights during the mandate period. Within this, however, there were different expectations of what such enquiry could deliver. TRC Human Rights Violations Committee member, Russel Ally, was central to preparing the business and labour hearings for the TRC. He says:

Truth commissions the world over tend to become very individualised and the context is an afterthought. But these [hearings] started with the context. None of these things were anticipated when we started. The way the Act was drafted you had a very narrow mandate in some senses. You couldn’t look at pass laws in themselves for instance, but you could look at Sharpeville. It was not Apartheid on trial. But it was possible to interpret it in a very broad way – how do you look at torture and killing? You need to put these in a context. So that’s how we justified the institutional hearings. (interview conducted May, 2002)

These hearings were established in part in response to the “systemic view” which began to be raised by Mamdani and others. Deborah Posel, who also leans towards the “systemic view” states generally of the hearings:

116 The institutional hearings were a somewhat ad hoc attempt to deal with a problem they knew they had. They had a mandate which limited the scope of their enquiry to gross human rights violations within the discourse of law and individuals, but everyone knew that they were acting in the context of a system and that system needed to be put under scrutiny. The hearings were a laudable attempt, within the context of their mandate, to put some emphasis on the systemic aspects of Apartheid. (interview conducted May, 2002)

However, carrying this out and satisfying the “systemic view” was always going to be a difficult job for the TRC – because there were different views about the topics they would cover and different things were expected. Tutu writes:

In most of these [institutional] hearings, the perspectives differed along racial lines. Blacks naturally tended to be critical of the role that some of these institutions have played in supporting and maintaining apartheid, whereas whites in the same institutions were defensive about their role in upholding the status quo. What your perspective would be depended on who and where you were … With regard to the business sector, the perception of most black people is that almost all business participated in racial capitalism, colluding with the apartheid rulers to extract as much profit as possible for themselves. (1999: 172 and 181-182)

What I will argue in this chapter is that in terms of dealing with collective responsibility, these hearings fed expectations along the lines of the “systemic view” that the TRC could and should identify institutions and groups as collectively responsible for playing important roles in the system of Apartheid. The confusion which emerged within the TRC’s discussion of collective responsibility impacted on its hearings and its findings in the Final Report. It also impacted on public perceptions of the TRC, in that it created ambiguity over what it was trying to do and what it could achieve.

Individual and collective

Not surprisingly, the business hearings included numerous ways of denying individual or collective responsibility. Some argued that they could not be held individually responsible for the policies of previous company boards and directors. Others argued strongly that businesses in general were not collectively responsible for human rights abuses, and were highly differentiated in their actions and response. Mike Rosholt, former executive with the Barlow Rand Group, said:

117 … business can never be classified as a homogenous entity. It is made up of individual units, large and small, with many differing policies, objectives and characteristics. It must be remembered too that during the period under review, there was no such body as “Business South Africa” which now articulates the collective business stance on certain issues. The policies pursued by individual units differ too, in that they are influenced by the views and actions of their chairman and chief executives. (testified at business and labour hearings, Johannesburg, November 11, 1997)

Others questioned the degree to which “business” could be held responsible. Ann Bernstein, executive director of the Centre for Development and Enterprise, argued:

Let me start first by saying that often people like to talk about business as though it were a political party or as though it were a trade union. The fact of the matter is, I think has been very amply demonstrated in the last day and a half, if you look at the very different individuals that have come to represent very different companies before the TRC, you will see that business is actually a description of a category of activity. Which makes it very difficult, because all want to generalise about [it], myself included, but that’s the critical thing one has to bear in mind; that one’s dealing with very individualistic, actually a highly competitive sector with each other and it is a rather cut throat business. It’s a very sort of different kind of business from Government or anything else. So when we start talking about business as a collectivity and what they might do other than running their businesses it gets very complicated and I think that is a very important issue that needs to underline how you think about business in South Africa. (testified at the business and labour hearings, Johannesburg, November 12, 1997.)

“Business” is a collective term which covers many business institutions, but it was difficult for the TRC to deal with “business” as an institution in its hearings – because no such institutional structure existed and could be called to testify. Some business associations did exist, but they had no formal control over individual businesses. Bernstein goes on:

The basic point I’m making is that when you say let’s look at business it’s not like we can say give us your leader and let’s get him to account for what happened over the last century, because it’s not possible. Tell us your manifesto. It’s not possible. It doesn’t exist. So you put the senior executives of South Africa’s largest corporations in a room; they will have different views on very many topics and that’s precisely why it’s so hard to think creatively about collective action that business can take ... The point I’m making is that that makes it very hard to ask some of the questions that have been asked: what does business think of this or

118 that? (testified at the business and labour hearings, Johannesburg, November 12, 1997)

There was an ambiguity in the TRC’s institutional hearings over how to deal with the collectives under enquiry. Was “business” a collective term for individual businesses whose actions could be interrogated, or a social group which benefited from human rights abuse and could have done more to prevent it, or was it a social group with a particular role in the social system of Apartheid? While the TRC’s institutional hearings could be interpreted as enquiring into social institutions in a broader sociological sense – the legal system, health system, the media – the hearings were based on calling specific existing bodies to testify. However, the TRC had difficulty clarifying the nature of the collectives with which it was dealing – and the status of “representatives” in relation to these collectives. This also fed into ambiguity over what it was asking those appearing to take responsibility for.

The obvious difficulty that the TRC ran up against in its discussion of business responsibility is that its mandate was limited to gross human rights violations.

Responsible for what?

In terms of responsibility for contributing to specific instances of abuse, all denied any direct responsibility. For instance, Desmond Smith, managing director of South African Life Assurance Mutual (SANLAM), acknowledged that Steve Biko was tortured in a SANLAM building in Port Elizabeth, but stressed that SANLAM had no prior knowledge. (testified at business and labour hearings, Johannesburg, November 13, 1997) Others denied more indirect contributory actions. For instance, when faced with questions about aiding the security forces, Mike Rosholt argued that Barlow Rand only supplied avionics and telecommunications equipment, and not arms. (testified at business and labour hearings, Johannesburg, November 11, 1997) Others denied supporting Apartheid, and said that they had tried to change things. According to Mike Rosholt, a former executive with the Barlow Rand Group, his company attempted to do this in two ways:

119 First of all directly in public statements … I very much doubt whether this made any great impact on government, but nevertheless the effort was made. And secondly, by supporting both financially and through the personal involvement of the executives, business funded organisations, such as the Urban Foundation, the Consultative Business Movement, the South African Race Relations Institute, the Legal Resources Centre and others. (testified at business and labour hearings, Johannesburg, November 11, 1997)

Johan Rupert, chief executive of the Rembrandt Group, argued:

Now with the advent of apartheid … One either agreed, or you emigrated or you tried to oppose the system from the inside … we remained what is now called a profile of patriotic bourgeoisie, practising lojale verset [loyal resistance]. We tried to build progress through partnership. (testified at business and labour hearings, Johannesburg, November 12, 1997)

Some actually acknowledged having benefited from Apartheid, while still portraying social context as something external and determining. Desmond Smith said:

With regards to our submission, we, the individuals constituting the present board and management of SANLAM, acknowledge that in conducting its business, SANLAM functioned in a political and social environment which violated human rights on an enormous scale and was fundamentally wrong, immoral and unjust. We furthermore acknowledge that this environment caused untold hardship, suffering and grief to the people of colour and further that SANLAM as a member of a privileged group benefited from Apartheid in one way or another, relative to members of disadvantaged groups. (testified at business and labour hearings, Johannesburg, November 13, 1997)

However, many other business representatives denied benefiting. How the TRC dealt with this will be covered below.

What became clear during the hearings is that while the TRC was formally mandated to investigate and make findings about gross human rights abuses, it attempted to broaden its discussion by looking at social context. Russel Ally, responded to criticisms of the institutional hearings which were raised at the time:

Why don’t you just focus on the issues that you’re looking at? Why do you want to drag other institutions, other sides or aspects of what happened into this process of

120 truth and reconciliation? Because this is just going to create further divisions. But I think we were correct in insisting that a hearing of this kind is fundamental, because fundamental to any reconciliation in this country is dealing not just with the gross human rights violations, as defined in the Act, but with the context in which these were taking place and particularly the social, economic conditions. Because as it’s come out very clearly, this is the biggest challenge to reconciliation, the legacy which Apartheid has left: not just around the political exclusion, but more fundamentally around the way in which the majority of people, black people in particular, were discriminated against in the economy, the access to resources. If a hearing like this has highlighted divisions, then that is good, because I think that from the perspective of the commission, we can only really begin to tackle this question of reconciliation if we are honest about how wide the divisions are and how wide the different perceptions are, otherwise we are fooling and deceiving ourselves. (Statement at business and labour hearings, Johannesburg, November 13, 1997)

Within these hearings, the TRC also broadened its discussion of human rights violations. However, it could not force business to participate in this way. For instance, the failure to adjust wages and work practices which were obviously discriminatory was touched on, but argued in some business submissions to be outside of the mandate and sphere of concern of the TRC. (TRC, 1998: Vol. 4, Ch. 2, Section 11) In the hearings, few business representatives addressed these sorts of abuses in their submissions, or mentioned them as aberrations. As an example, Cedric Savage, managing director of the Tongaat Hulett group, claimed:

There were also instances in the past 30 years where management was guilty of condoning discrimination and discomfort through, for example, application of Apartheid’s job reservation and the imposition of separate amenities. My own experience has been that in each case where any unfair incident was brought to the attention of group executives, corrective action was taken. Whites were fired due to the ill treatment of blacks. So, unfair incidents did take place and for these we are sorry and for these we apologise. (testified at business and labour hearings, Johannesburg, November 13, 1997)

However, others did take advantage of the opening to discuss broader abuse. The Congress of South African Trade Unions (COSATU) includes in its oral presentation some of the stories of workers who suffered in numerous ways under Apartheid,

121 particularly those killed in mining accidents. Sam Shilowa, general secretary of COSATU, stated:

… in the discussions and the beginning of the Truth and Reconciliation Commission, Bishop Tutu had something fundamental to say which I would just want to remind ourselves about. He said, “There are millions of people whose tears have not always been recorded. We hope that you will do an in depth account of those in the shadows so people know the price of freedom in South Africa.” That’s what the Archbishop said. Now, for us to document the daily experience of ordinary workers in South Africa, is to record a chronicle of tears. (testified at business and labour hearings, Johannesburg, November 13, 1997)

In its findings the TRC stretches its definition of gross human rights violations to include some of this. It criticises those in the mining industry for failing to take proper care of the health and safety of its workers. It notes the alarming number of people killed in workplaces this century:

Approximately 69,000 miners died in accidents in the first 93 years of this century and more than a million were seriously injured … More than 60,000 workers lost their lives in occupational accidents between 1964 and 1994. (TRC, 1998: Vol. 4, Ch. 2, Section 70 and 102)

It states that the denial of trade union rights was a violation of human rights. (TRC, 1998: Vol. 4, Ch. 2, Sections 164-166)

The problem is that the TRC’s approach created a somewhat ambiguous focus in its hearings. For instance, Mike Rosholt said:

As I read the request I received, the overriding objective of the commission, is to establish as complete a picture as possible of the causes, nature and extent of gross violations of human rights. But I personally can perceive no definition of direct human rights violations which could possibly be attributed to business generally, during that period. And that the underlying objective the commission has is to gratify itself on the performance of business in the apartheid area, on both political and social issues. (testified at business and labour hearings, Johannesburg, November 11, 1997)

122 It was clear from other submissions, that the latter is exactly what some people wanted. In his written submission to the hearings, Professor Sampie Terreblanche exemplifies the “systemic view”. He writes of the relationship between business and the power structures of the state:

These forms of collaboration create and promote a context that leads to the systematic execution of gross human rights violations. It contributes to the emergence of an economic and political structure – a culture and a system which gives rise to and condones certain patterns of behaviour. (TRC, 1998: Vol. 4, Ch. 2, Section 20)

The ability of the TRC to deal with “business” and its role in “the system” will be returned to below.

Beyond this, other theoretical and contextual debates arose within the TRC’s enquiry of responsibility in terms of its moral emphasis.

Moral responsibility

The TRC’s moral approach was resisted. For instance, Ann Bernstein argued that business was not about morality:

At the end of the day and at the beginning companies are set out to make money. That’s what they’re about; first and foremost and these are not moral institutions. These are money-making machines. Like it or not, but sometimes it is uncomfortable. This turns out to be the best possible way human kind has found to create economic growth and all the things that go with it. (testified at the business and labour hearings, Johannesburg, November 12, 1997)

In attempting to respond to this, the TRC obviously felt that business should not be able to deny all responsibility – and attempted to argue this from a moral perspective.

Mr. Hindoe: I’m getting the impression that business is a world where there are no morals and as long as I can still make profit that’s okay. Is that what you’re saying?

Ms Bernstein: Mr. Chairman, I think – let me unpack the question. I’m saying that enterprises, companies, corporations are in business to make money and if they

123 don’t make money they go out of business and people lose their jobs and the Governments don’t get taxes and so on. So, that’s the bottom line. Now, how you behave as business person will differ from company to company and what morals and what ethics and values you bring into your business dealings will differ from company to company. I’m not absolving anybody from, if you like, individual moral responsibility for how they behave. The point I’m making is that business as a sector, as an activity is a money making activity and you might be a person who gives money to charity in your personal capacity, but as a business person you’re ruthless and tough towards your competitors. I think that’s the distinction I’m trying to make. (testified at the business and labour hearings, Johannesburg, November 12, 1997)

This interchange reflects the difficulty of dealing with the responsibility of business from a moral perspective. The idea that an institution can have a morality is a contested one. Institutions can take decisions on particular things motivated by particular common views amongst their membership and leadership. The moral views of these individuals are thus reflected in the collectively-decided views and actions of the institution. However, institutions are not conscious beings. This is even more so for social groups, which have no clear leader or internal decision-making structure. In addition, the TRC found that it was almost impossible to get individuals to take moral responsibility for the actions of a broader collective – and in any case this conflicts in some ways with an emphasis on individual agency. It would obviously have been preferable that individual people did business in a way which reflected their moral views – and this issue was interrogated by the TRC. If it had been the case on a large scale, then Apartheid wouldn’t have been as bad. However, what perhaps emerged as more useful and relevant was considering how business as a social group could be considered politically responsible in a collective sense. It is possible to argue that business as a social group was collectively politically responsible for not having done more, and for benefiting. Collective responsibility was difficult to interrogate in hearings based on individual testimony (and was not voluntarily accepted), but the TRC moved on to address the issue in its Final Report.

124 The TRC’s findings

In the Final Report, the TRC prepared a position which established that some businesses were involved directly in human rights abuses, that others were involved indirectly by “cooperating with the security structures of the former state” 27 (TRC, 1998: Vol. 4, Ch. 2, Section 164), and that others helped in formulating and implementing state policies. In doing so the TRC drew a distinction between different “orders of involvement”. Afrikaner business, other white business and black business are treated separately. Parastatals are also treated separately. Those businesses in the mining industry and agricultural industry are singled out for major criticism in terms of collaboration with the state and perpetration of human rights abuses themselves. The TRC calls for an apology from those in the mining industry in particular28. Despite the TRC’s moral emphasis, these findings asserted collective political responsibility where it was mostly denied.

The TRC’s main finding coming out of the hearings lays most of the blame at the feet of the Apartheid state, while saying that businesses could have done more, and that by not doing so they contributed, stood by and benefited:

Business was not a monolithic block and it can be argued that no single relationship existed between business and apartheid. It is, however, also true that overwhelming economic power resided in a few major business groupings with huge bargaining power vis-à-vis the state. This power could have been more aggressively used to promote reform. (TRC, 1998: Vol. 4, Ch. 2, Section 49)

Further, the TRC argued that massive benefits had flowed to particular businesses, and that “Most businesses benefited from operating in a racially structured context”. (1998: Vol. 4, Ch. 2, Section 164)

Despite these findings, the discussion around them in the Final Report revealed a number of unresolved theoretical and contextual debates.

27 The particular things highlighted here were participation in industries such as arms production, and in the state structures established as part of the Apartheid regime’s “total strategy”. 28 This was potentially possible via the collective body of the Chamber of Mines.

125 Business and “the system”

The TRC spends a great deal of time in its section on the business and labour hearings addressing the issue of whether business could have done more against Apartheid. This was an important discussion to include in terms of considering the responsibility of business as a social group for benefiting or standing by. However, the TRC’s moral approach introduced some ambiguity in this discussion.

The TRC notes the following positions put forward in submissions:

Implicit in any evaluation of the role of business under apartheid is an underlying conception of what the role of business should be in society. Two distinct points of view emerged. The first was expressed in submissions from business which accepted that more could have been done by the business community to bring about change, thus implicitly accepting a moral role for business that extended beyond the conventional bounds of everyday business activity.29 The other point of view denied that business could or should have acted from a moral standpoint.

The former argument condemns all business people for having engaged in business under apartheid. The Bernstein argument [argument that business contributed in a positive but unintended way through the impact of economic growth on social transformation] on the other hand, applauds them for such engagement. (TRC, 1998: Vol. 4, Ch. 2, Sections 140-146) [my italics]

The TRC’s ability to deal with the role of “business” in “the system” in an abstract theoretical sense was limited. It was mandated to make findings about the responsibility of individuals and collectives in relation to gross human rights violations. It had limited resources to devote to theoretical, analytical and research purposes. It also operated in difficult circumstances and had to be mindful of ensuring the widest reach and broadest possible participation in its deliberations. In these circumstances, the TRC tried to draw in discussion of social context and broader discussion of responsibility via a moral approach. However, this could not and did not resolve the range of conflicting views on Apartheid and the role of business within it.

29 One notable example of this was the Afrikaans business organisation, the Afrikaanse Handelsinstituut.

126 The TRC argued that Apartheid was immoral. It criticised abuses beyond gross human rights violations (industrial deaths and forced removals, for example), legislated racism, complicity and inequality. It attempted to include and resolve these questions by stressing the generally immoral nature of the past and the need for all to commit to a new moral future. It writes:

It is this systemic and all-pervading character of apartheid that provides the background for the present investigation. During the apartheid years, people did many evil things. Some of these are the gross violations of human rights with which this Commission had to deal. But it can never be forgotten that the system itself was evil, inhumane and degrading for the many millions who became its second and third class citizens. (1998: Vol. 1, Ch. 4, Section 51)

However, this perspective has led to criticism of the Final Report along the lines of the “systemic view”. Wilson argues that in general the explanation for what happened under Apartheid which is contained in the TRC’s Final Report is predominantly a moral one. Why did such things happen?: because Apartheid was evil. He writes:

The Report is primarily to be understood as a chronicle of acts embedded within a moral framework of denunciation. The nation-building project relies upon recognizing moral wrongness; in fact, it is a new criterion of moral citizenship. Further debate about Apartheid is placed in abeyance, in favor of constructing this new moral unity. (2001: 55)

Posel agrees that overall, “the report reads less as a history, more as a moral narrative about the fact of moral wrongdoing across the political spectrum, spawned by the overriding evil of the apartheid system”. (1999: 3) According to such critics, racism is predominantly outlined by the TRC as a set of discriminatory ideas which were enforced by morally-repugnant people, legislation and state machinery.

Despite the moral emphasis in its Final Report, I would argue that the TRC actually took a political position of Apartheid which was influenced by the ANC’s perspective historically. In its submission to the business and labour hearings, the ANC writes of Apartheid:

127 It was a system of racial minority rule that was both rooted in and sustained white minority socio-economic privilege at the expense of the historically oppressed black majority. Apartheid was associated with a highly unequal distribution of income, wealth and opportunity that largely corresponded to the racial structure of the society. (ANC, 1997)

This position focuses on the racially-based nature of this inequality of power and privilege – and its enforcement by the state. Where the TRC spoke of the systemic nature of Apartheid this is generally the framework that it used. It is also a framework which held widespread currency in South Africa – it was hard to deny that race and privilege/oppression had coincided and been systematically enforced. This analysis was included in the TRC’s report as a means of meeting its mandated role to investigate the context of abuse – and as part of its approach of stressing the immoral nature of the past. However, this frustrated those who wanted the TRC to include a more detailed (or different) political analysis of Apartheid – and who or what was responsible.

As outlined in previous chapters, much of the existing literature on the theory and history of Apartheid (and race and class) in South Africa is influenced by Marxist theory. Rather than looking at racial division alone, this literature has put emphasis on divisions and distinctions amongst whites and blacks, and on the alliances formed by particular social groups to exert power or to pursue common interests. An important theme in this literature is that the emergence of racism in South Africa, and the increasingly legislated and brutal form that it took, was closely linked to the specific emergence of class relations in the country. Greenberg argues that racial discrimination, and its enforcement by the state, were closely linked to the dynamics of early capitalist development in South Africa – the growth of a capitalist class based on the primary industries, the decline of small-scale farmers, and the growth of an industrial working class in the mining industry. These social groups all had particular interests in consolidating and further reinforcing racial discrimination. (1980: 386) He argues that the Apartheid state aimed to manage, enforce and legitimate the interests of the dominant white section of society as a whole. (1980: 390) The TRC’s approach raised the expectations and subsequent ire of those who wanted it to conduct and include more

128 of this theoretical and historical analysis of Apartheid – and outline the role of business within this.

All of this became important when the TRC went on to tackle the main debate it identified as running through the hearings: was “business” central to Apartheid or a “victim” of it?

Victims or beneficiaries?

The TRC says of the two main views which emerged during the hearings:

One view, which sees apartheid as part of a system of racial-capitalism, held that apartheid was beneficial for (white) business because it was an integral part of a system premised on the exploitation of black workers and the destruction of black entrepreneurial activity. According to this argument, business as a whole benefited from the system, although some sections of the business community (most notably Afrikaner capital, the mining houses and the armaments industry) benefited more than others did ... The other position, argued mainly by business, claims that apartheid raised the costs of doing business, eroded South Africa’s skill base and undermined long-term productivity and growth. In this view, the impact of apartheid was to harm the economy. (1998: Vol. 4, Ch. 2, Sections 6-7)

The TRC draws out the following clash of perspectives in the hearings:

In brief, the white business perspective sees apartheid as a set of politically inspired, economically irrational policies that were imposed on (and undermined) the economy. Those critical of business during the period under review by the Commission, on the other hand, emphasise the inherent link between apartheid and capitalism – refusing to allow for any sharp analytical distinction between the economic and political spheres. (TRC, 1998: Vol. 4, Ch. 2, Section 16)

It was going to be very difficult for the TRC to deal with this debate – let alone resolve it.

The TRC notes inconsistencies in arguments that businesses too were “victims of Apartheid”, pointing to ongoing collaboration with the Apartheid regime even in its later years of crisis – participation in the Apartheid regime’s “total strategy” and undermining

129 of sanctions. (TRC, 1998: Vol. 4, Ch. 2, Section 124) It also, however, criticises the alternative position:

Alternatively, the analysis of the ANC, COSATU and the SACP [South African Communist Party] seems to imply that the involvement of business in the racial capitalist system of apartheid was such, and the benefits so great, that it would not have been in its interest to take issue with apartheid. (TRC, 1998: Vol. 4, Ch. 2, Section 9)

The TRC thus criticises what it sees as the monolithic view of business contained in these submissions (even though it sometimes uses this language itself). However, the quote above paints a caricature of these submissions, which attempted to address the complex relationship between different sections of business and the state during the times of economic and political crisis from the late 1970s onwards.

A complex assessment of this period in history is present in the existing literature on the theory and history of race, class and Apartheid. This literature generally argues that over time the form of the Apartheid state and system became a fetter on economic development, and this, combined with intensifying political resistance and the international isolation which came as a result of its repressive policies, eventually led to its downfall. Within this, Wolpe argues that the interests of increasing sections of business in maintaining Apartheid began to dissipate – because by the 1970s, capitalist development in South Africa changed from its original base in mining and agriculture towards manufacturing. (1988: 72) Apartheid policies created an important obstacle to the development of manufacturing – the lack of a large enough skilled workforce. Price argues that Apartheid produced the cheap labour force necessary for mining and agriculture, but in so doing it prevented the expansion of a desperately-needed domestic market. (1991: 33) According to Bond, the world-wide economic crisis exacerbated existing problems, resulting in declining profit rates, a substantial drop in the growth rate, and a massive increase in unemployment. (1999: 24) He argues that the South African economy was not in a good position to cope with this crisis – due to long-term structural weaknesses. It remained reliant on mining as an economic base (an industry facing strong international competition), on importing capital goods (which became a

130 problem in the face of increasing international isolation), and on production of luxury goods for a small wealthy market. (Bond, 1999: 18) An upsurge in political protest from the 1970s onwards, particularly union activity, fuelled economic concerns. McKinley argues that coming out of the first talks initiated with the ANC in 1986, sections of South African capital began to believe that there was enough common ground on economic concerns. (1997: 85) Davis (1997) argues that significant sections of international and domestic business, and western governments led by the US, began to push for a settlement while encouraging the “moderate” wing of the ANC. Some seem to have wanted more of this analysis included.

Fuad Cassim from the Black Management Forum stated that the relationship between business and Apartheid changed over time – “the cost of Apartheid began to outweigh the benefits or the gains” – and that this had been inadequately addressed by the hearings. (testified at business and labour hearings, Johannesburg, November 12, 1997) In its written submission to the business and labour hearings the ANC argues:

Despite business’ retrospective claims that it was always at the cutting edge in seeking democratic reform in South Africa, there was, in fact, a good deal of common ground between leading business circles and the Botha regime over the ultimate objective in seeking “reforms” that would draw historically oppressed communities into a new political dispensation while at the same time preserving ultimate control by the white minority. (ANC, 1997)

While it welcomes any business support for change, it writes:

… we believe that it is important that an accurate account emerges of this process. The Botha regime’s rejection of pressures to negotiate an acceptable transition to democratic rule in 1985 was followed by the imposition of states of emergencies, the escalation of assassination campaigns against anti-apartheid activists within the country and abroad and further destabilisation of neighbouring countries. It was during this period that some of the gravest violations of human rights occurred. While significant groupings within historically privileged business began to grope towards the idea of a negotiated democratic transition, considerable vacillation was evident and leading personalities from major corporations continued simultaneously to give a degree of political support to the Botha regime’s states of emergencies. (ANC, 1997)

131 It was impossible for the TRC to establish “business” responsibility for “the system” in the way that many wanted it to. Its partial attempt at this led to confusion over what it was trying to do and what it could realistically do. The TRC attempted to draw in discussion of broader abuse and Apartheid as part of its moral approach. However, this raised expectations and frustrated those who wanted a more detailed or different account included.

In dealing with this discussion, the TRC ran into the limitations of its mandate. The limited mandate period made it hard for the TRC to deal with business involvement and benefit – given that its basis was laid much earlier. A decline in support for Apartheid by increasingly large sections of business did occur later in the mandate period. Meanwhile, the illegal activity of the state became more widespread and gross violations of human rights committed by the liberation movement increased from the late 1970s due to the shift to armed struggle, sabotage and increasing fear of infiltration. This took a lot of the focus off business responsibility during the mandate period, and aided the argument that business was a “victim” of Apartheid too. In dealing with this discussion, the advantage of a conception of political responsibility is that it is less concerned with the intentions of individuals and groups, than with the results. This allows an important distinction between supporting and benefiting from Apartheid. While some businesses clearly did both, others benefited from but did not support Apartheid. Over time, support for Apartheid waned, but many of the benefits to business remained. It was still possible to argue, as the TRC in fact did, that business as a social group could be held collectively politically responsible for benefiting, and for standing by (with perhaps some exceptions). However, it was going to be impossible for the TRC to resolve all the theoretical and contextual debates it encountered. This became particularly clear in terms of how all this related to the issue of accountability.

Accountability

Despite the debates it encountered in these hearings, the TRC concludes hopefully, that: “Business (not least for reasons of enlightened self-interest) is coming to recognise that morality is an important ingredient of viable business”. (TRC, 1998: Vol. 4, Ch. 2,

132 Section 147-148) However, “enlightened self-interest” – as a term used by business representatives in the hearings – did not necessarily relate to morality. Usually, it referred to the social stability a more equal society would bring, and the possibilities of making full use of South Africa’s “human capital” through education and work opportunities.

Business representatives at the hearings tended to agree that socio-economic amelioration was necessary, but that the priority was growth in the economy. In a submission to the business and labour hearings, Mohamed Taki, a representative of the banking industry said:

In the interest of all South Africans, we also have to be careful to limit the damage to the actual wealth generating machine itself, while we try to fix up the past. As an industry we are convinced that the repair work can only be done if we all work together. All of us will have to make sacrifices in the interest of future generations of South Africans … The banks are committed to play a constructive and co- operative role in the reconstruction of the country on democratic principles and in which all its citizens enjoy equal opportunity. (testified at business and labour hearings, Johannesburg, November 11, 1997)

In arguing this he states that Apartheid created an inward-looking economy which was not easily able to cope with the changing demands of a globalising world economy. The implication is that if business can prosper on the basis of a newly stabilised system, then all will benefit. Humphrey Koza, president of the South African Chamber of Commerce and Business (SACCOB), echoed this theme:

Tremendous economic and social challenges face South Africa in meeting the aspirations of our people at all levels as we enter the twenty first century of globalisation and modernisation. To succeed, we require that SACCOB, as an important component of civil society, helps to promote sustainable growth and development. We must also prevent a recurrence of past injustices. There are grounds for confidence. (testified at business and labour hearings, Johannesburg, November 11, 1997)

Former president of the Afrikaanse Handelsinstituut, Andreas Van Wyk stated:

133 We realise that socio-economic development of the total population is vital, although we may differ at our detailed strategy and methods. South Africans need to agree on a common policy framework for socio-economic development … It is a fact that capital and expertise, coupled with drive and sweat, helped South Africa to become an economic leader in Africa, despite Apartheid. All our resources and talents, some of which were previously expended in conflict, should be harnessed constructively in future to develop an increasingly prosperous society. (testified at business and labour hearings, Johannesburg, November 12, 1997)

The context of the negotiated settlement set the basis for these discussions in the TRC. While the settlement enshrined some agreement on change, there were still many different ideas about the degree of socio-economic transformation required and the means of providing it. What the TRC tried to add was a common moral framework – which could be used to consolidate and bring business further into a consensus where it would contribute to socio-economic change. So, for instance, Tutu used a theological view of forgiveness to address business:

And what is this business of forgiveness? That is the acknowledgement that wrong was done and expression of contrition, sometimes they say remorse, the sorrow for the wrong done which triggers off the confession and then there is the forgiveness. But the process is not complete because there is the matter of restitution, of seeking to repair the wrong that accrues from whatever was done for which the person is contrite, and I myself have suggested to some of the business leaders that there are things like seeking to engage in training of those who have for so long been excluded from the possibilities of acquiring skills. (Statement at business and labour hearings, Johannesburg, November 11, 1997)

This approach makes some sense for those who were contrite – but not for the majority who weren’t or for those people, now dead, who can’t be. The TRC faced the difficult task of outlining measures of accountability, where no consensus existed. For instance, reparation was explicitly opposed in many business submissions. A representative of the South African Chamber of Business claimed:

Perhaps one of the reasons why so many of us opposed apartheid, was it was not in the best interest of business. Many of our businesses would have performed substantially better, had there not been apartheid … We believe that taxes, the high level of taxation that we have in South Africa at the moment, is in effect the price that we are paying for the sins of the past and we believe that that system of

134 taxation should be used constructively to build a better future for all South Africans. We would be opposed to a special taxation in the form of reparation. (testified at business and labour hearings, Johannesburg, November 11, 1997)

Others in the hearings argued forcefully for reparation, and business contribution to this. Terry Crawford-Browne from the Black Management Forum stated:

A genuine apology is an imperative and that includes the payment of substantial reparations by the beneficiaries of Apartheid rather than the tax-payers. There is no merit to an apology that I’m sorry that I stole your bicycle, but I’m now not going to give it back. Or alternatively that someone else should bear the cost. (testified at business and labour hearings, Johannesburg, November 12, 1997)

These issues will be dealt with in detail in the following chapter.

Perceptions

Despite the TRC’s effort in formulating and conducting these hearings, they have come under heavy fire. Those who ascribe to the “systemic view” were angered by business representatives’ version of the past. Sam Shilowa responded:

For the past three days the TRC have heard how all South Africans, black and white, big business and workers, were all freedom fighters for liberation. We have also heard about the fact that business were victims of Apartheid and have never benefited from it. Furthermore, that they are not a homogeneous mass group. It would be very nice if we were all revolutionaries. Oppression, exploitation, humiliation, discrimination, starvation wages, the migrant labour system, child labour, dismissal of strikers, particularly those who went on legal strikes, or engaging in political strikes, would never have happened, because we would all have been revolutionaries. (testified at business and labour hearings, Johannesburg, November 13, 1997)

In a submission to the hearings Moosa Moosa, a representative of Avalon Cinemas which took issue with the monopolistic practices of the white-owned Ster Kinekor under Apartheid, said:

Mr. Chairman, I want to also add that over a protracted period of some years, reinforced by my experiences of the last two days and the hearings I’ve sat through here, I must say that I leave today with a sense of sadness and desolation. I see no

135 shift in the mindset of the privileged establishment in so far as the genuine desire to really try and make good for what we have experienced in the past. (testified at business and labour hearings, Johannesburg, November 13, 1997)

Former TRC investigator, Zenzile Khoisan, argues:

The institutional hearings were a waste of resources. It just recycled the same old garbage. The institutions and parties just came out and repeated the same old positions. They [business] fattened at the trough of racial suppression and they have siphoned off resources and taken it overseas. As someone once said: “Beneath every great fortune lies a terrible crime”. And they have never been brought to book. (Zenzile Khoisan, interview conducted June, 2002)

The “practical view”, by contrast, stresses that it was not possible to do more in establishing responsibility in a “systemic” sense – although it acknowledges practical difficulties and limitations due to context. After the TRC, some argued that the institutional hearings were not been dealt with in enough detail and with enough clout. Author on the TRC, Anthea Jeffrey, says: “My sense was that the institutional hearings scratched the surface. They didn’t really add anything of weight.” (interview conducted May, 2002) Polly Dewhirst from the Centre for the Study of Violence and Reconciliation, who worked on the legal hearings: “At the legal hearings, none of the judges turned up. It had no impact. I don’t think they were challenged at all.” (interview conducted May, 2002)

The “procedural view” agrees that more needed to be done to establish the responsibility and accountability of individuals and collectives, but argues that it was not practical for the TRC to achieve all that was expected of it. My argument is that theoretical and contextual debates around responsibility and accountability created important difficulties for the TRC in defining and limiting its work in its institutional hearings. Hugo Van Der Merwe from CSVR says:

The institutional hearings were a good idea, but along with the rest of the TRC it wasn’t well conceptualised. They were left up to the initiative of individual commissioners. Some were set up as a collaborative process between government, private sectors and NGOs – a brainstorming about transformation and self- reflection. Others were more inquisitorial and challenging. What is the truth you

136 are wanting? Is it a joint history? Is it about prosecuting individuals in those sectors? Is it about institutional responsibility? It tried to cover the link between gross and non-gross violations but there wasn’t enough clarity. (interview conducted June, 2002)

The TRC pursued a complex and ambitious approach by including these sorts of hearings. However, its emphasis on social context, collective responsibility and morality seems to have actually fuelled anger in some cases, rather than assuaged it. The TRC’s approach fed unrealistic expectations of these hearings which are expressed along the lines of the “systemic view”. It was not practical for the TRC to establish the role of “business” in “the system”, as some wanted. In addition, the TRC’s moral approach angered those who wanted a more detailed or different account to come out. It also was not met with what the TRC might have hoped in terms of business voluntarily accepting responsibility and holding themselves accountable. This denial was obvious and public in its hearings, and perhaps overwhelmed consideration of its well-argued findings. What became clear through is that these issues were deeply contested.

Dealing with responsibility and accountability (especially as these apply to collectives) became even more relevant in those aspects of the TRC’s work which were focussed around accountability and promoting change to ameliorate the damage caused by abuse. The latter is the subject of the following chapter.

137 Chapter 6: Accountability: who or what should pay?

This chapter looks at the issue of accountability – how theoretical and contextual debates were present within and impacted on the TRC’s recommendations contained in the Final Report. The chapter also draws out the practical implications this had in terms of the impact on public perceptions of the TRC.

An important starting point in looking at accountability is outlining the damage caused by abuse, and the change needed to ameliorate this. The TRC’s human rights violations hearings were central to public debate and perception of its work. While the hearings examined so far were more centrally concerned with responsibility (and accountability), the human rights violations hearings are important to the discussion here in that they brought out the damage caused by abuse.

Damage caused by abuse

As outlined in Chapter 1, the TRC’s human rights violations hearings were seen to have a number of functions – allowing acknowledgement (and hopefully healing) for victims, promoting discussion of responsibility and accountability, and promoting reconciliation. During and after the TRC, these hearings have been the subject of much criticism along the lines of the “systemic view” – that they individualised the past and did not bring out the systemic nature of abuse. They have perhaps been the focus of such criticism because of their prominence within the overall work of the TRC, and public discussion. Community activist and author on the ANC, Dale McKinley, says: “What most people saw and what stuck in their minds were the human rights violations hearings. The other hearings, like on business, didn’t have the same impact.” (interview conducted April, 2002) The human rights violations hearings have been targeted within a more general critique of how the TRC carried out and framed its work. What I will argue below is that the TRC’s attempts to bring out a “representative” view of the past and include discussion of social context in these hearings served to fuel unrealistic expectations of this area of its work. Its emphasis on moral consensus also fuelled angry responses from those who disagreed with the version of the past that they felt was being represented. In

138 terms of contributing to a discussion and investigation of responsibility and accountability, these hearings were important in drawing out the damage done by abuse – which they did quite successfully.

The hearings did draw out important aspects of the damage done to individuals and communities. They put a human face to the victims of violence, and to those who continued to suffer as a result. Commissioners asked those testifying to describe themselves and their loved ones as people – what they were like, where they worked, whether they were married and had children, what they loved doing. The hearings included a focus on the ongoing effect of torture, trauma and death on victims’ lives and the lives of those around them.

However, beyond this, the TRC saw the hearings as drawing out a “representative” picture of the abuse which had occurred. Cases for the public hearings were selected on the basis of:

a) The nature of abuse in the community or area: the Commission attempted to select a group of victims whose experiences represented the various forms of human rights abuse that had occurred in the area.

b) The various groups which had experienced abuse: the Commission attempted to select a group which included victims from all sides of the conflict so as to present a picture of abuse from as many perspectives as possible. In many instances, this required that the Commission proactively seek out victims from particular communities.

c) Representivity in relation to gender, race, age and geographical location in the area where the hearing was to be held. (TRC, 1998: Vol. 1, Ch. 6, Section 33)

However, in striving for a “representative” picture, the TRC ran into numerous problems. For a start, not everyone was able to testify, and this angered some. Chubb and Van Dijk quote Nomfundo Walaza, director of the Trauma Centre for Survivors of Violence and Torture in Cape Town: “Some of the people who did not appear in public to tell their stories were furious. They thought their stories were thought to be less important”. (2001: 120) Others question the degree to which the TRC constructed a truly representative picture. TRC investigator, Piers Pigou, states: “Not many young people

139 testified. Not many activists testified. The representative nature of the public hearings meant that whites were over-represented. And they were mostly made up of women talking about others.” (interview conducted May, 2002) The under-participation of young people was striking when one considers that it is estimated that in the year 2000, 55% of South Africans were under 16. (Chubb and Van Dijk, 2001: 21) Young people also bore the brunt of repression because of their role in the struggle. In the codicil to its Final Report, the TRC writes:

Some victim groupings are poorly represented in the summaries. For example, military operatives of the liberation movements generally did not report violations they experienced to the Commission, although many who were arrested experienced severe torture. This is in all likelihood a result of their reluctance to be seen as “victims” as opposed to combatants fighting for a moral cause for which they were prepared to suffer such violations. The same can be said for most prominent political activists and leadership figures. (TRC, 2003: Vol. 7, Ch. 6)

In all hearings, a number of white victims were included. This contrasts with the fact that around 90% of those who gave statements alleging human rights abuse to the TRC were black, compared to 1% who were white. (TRC, 1998: Vol. 1, Ch. 6, Appendix 2, Section 13) More women made statements than men. (TRC, 1998: Vol. 1, Ch. 6, Appendix 2, Section 16) These were mainly black women, who came forward on behalf of dead husbands, fathers or sons. All of this draws out the fact that it was very difficult to represent a complex and contested social past in hearings based on individual testimony.

Beyond this, the TRC also tried to include discussion of social context in these hearings. The commissioners leading the testimony of victims would often start the hearing with a short background provided by the TRC’s Research Department on the broader context within which the violation took place. The special event hearings into cases such as the Bisho massacre, Guguletu seven and Cradock Four included longer descriptions of the political conditions surrounding the violations.

In drawing in discussion of social context, however, the TRC was pulled towards discussion of the more general human rights violations associated with Apartheid. This

140 is acknowledged in the Final Report: “When considering the consequences of gross human rights violations on people’s lives, it is hard to differentiate between the consequences of overt physical and psychological abuses and the overall effects of apartheid itself”. (TRC, 1998: Vol. 1, Ch. 4, Section 3) Victims themselves talked of the simple restrictions and denials of basic rights. The Apartheid system was all- encompassing, and in fact it was often the small indignities which sparked resistance. Tutu writes: “It was not usually the big things, the awful atrocities, that got to you. No, it was the daily pinpricks, the little discourtesies, the daily humiliations: having one’s dignity trodden underfoot, not always with jackboots – though that happened too.” (1999: 14) The Soweto uprising was sparked initially by the fact that half of all tuition was undertaken in Afrikaans. The “Cradock Four” case, where police killed four local men in 1985, resulted from years of resistance in the local community sparked by the transfer of teacher and political organiser Matthew Goniwe.30 Nomonde Calata, the wife of Fort Calata, one of the Cradock Four, talks about the fact that she was charged for wearing a t-shirt with Mandela on it. (testified in East London, April 16, 1996)

In the human rights violations hearings, the TRC included a focus on the day-to-day lived experience of trauma and deprivation under Apartheid. This was also covered in the Final Report. Chapter 4 of the final volume covers the consequences of gross human rights violations.

The apartheid system was maintained through repressive means, depriving the majority of South Africans of the most basic human rights, including civil, political, social and economic rights. Its legacy is a society in which vast numbers of people suffer from pervasive poverty and lack of opportunities … The consequences of repression and resistance include the physical toll taken by torture and other forms of severe ill treatment. The psychological effects are multiple and are amplified by the other stresses of living in a deprived society. Hence, lingering physical, psychological, economic and social effects are felt in all corners of South African society. The implications of this extend beyond the individual – to the family, the community and the nation. (TRC: 1998, Vol. 5, Ch. 4, Sections 1-2)

30 Fort Calata, Sparrow Mkhonto, Sicelo Mhlawuli and Matthew Goniwe – the Cradock four – were community leaders and activists in the United Democratic Front. They were detained and horrifically tortured and killed by the security forces.

141 Despite attempts to steer victims back towards talking about their individual experience, Bozzoli argues that it would have been impossible for the TRC to excise discussion of the broader context, and broader violations:

… although they were not the centre-pieces of any story, social and cultural matters were clearly part of the generalised experience of apartheid, and part of the discourses within which such experiences were retold. In fact, so powerful were these aspects that they often “burst through” an individual’s story even when they were not being specifically asked for by the commission. (1998: 184)

In these hearings, the TRC faced the difficult task of defining and limiting its work. While it included an emphasis on a “representative” picture and on social context, these hearings were still based on individual testimony. In terms of contributing to a discussion and investigation of responsibility and accountability, what I would argue was most important is that the hearings drew out a sample of what abuse had occurred and the damage that had been caused. Other hearings and investigations would focus on establishing the responsibility of individuals and collectives. Flowing on from this, in the Final Report, the TRC had a chance to outline what change was necessary to ameliorate the damage caused – and consider how individuals and collectives should be held accountable. The difficulties the TRC faced in defining and limiting its work continued into his discussion.

What change was needed?

An important first step for the TRC in formulating its recommendations in terms of reparation and change was asking victims what they needed. In the human rights violations hearings, victims were generally asked what the commission could do to help them, or offered up the information themselves. Some did not have any requests, satisfied with the chance to tell their story. However, others still wanted to know who did what and why. Beyond this, victims also requested individual or collective acts. Central to these was feeling that their experience had been acknowledged and that something would be done to remember and fix up that past.

142 It should be noted that there was some ambiguity amongst victims over financial reparation. Some victims expressed the feeling that compensation wouldn’t bring their loved ones or health back, or that it was not fitting, or not needed.

I don’t think one can quantify the value of a life, and put monetary value on a life. I wouldn’t like to see financial compensation being paid for a life. If perhaps the circumstances were such that it was the breadwinner, yes, maybe then it’s a different matter. It all depends on the circumstances. (Johan Smit for son Cornio Smit, testified in Johannesburg, April 29, 1996)31

Ma’am, I am not here to get any compensation. I just feel very hurtful for my shot son. It is the Commission that will see what it can do, but I am not here to tell the Commission what to do. I am not here to gain anything about that. I just feel very sore inside; my heart is broken. There is nothing else I am going to say now. (Mr. Juqu for son Fuzile Petros Juqu, testified in Cape Town, April 23, 1996)

Hamber and Wilson write that some are reluctant to accept reparation because it means accepting that a loved one has died. They provide the example of the Madres de la Plaza De Mayo in Argentina who rejected reparations – because this meant giving up on their “disappeared” children. (2002: 44-45) In his work with victims, Kgalema writes that reparations may hinder the healing of victims if by accepting reparations they felt pressure to forgive and reconcile when they were not ready to do so. (2002: 65) Orr argues that some may not have asked for reparations in the public hearings due to embarrassment. (2000a: 241-242) In written victim statements the most common request was for money or services that money can buy – 90% of deponents. The second most common request was for further investigation. The TRC report states that: “compensation, bursaries, shelter, medical care and tombstones occupied third to seventh places respectively in the most frequent requests”. (TRC, 1998: Vol. 5, Ch. 5, Section 44) In the public hearings, most victims asked for reparation of some type.

Most victims were very modest in their requests – asking for support to cover the necessities of life and education for their children. Some appeared to be happy with symbolic reparation such as memorials and the chance for proper funerals. However, others felt strongly that some monetary reparation was essential. Few victims made any

143 comment on where reparation should come from. Whether it was granted and how much it should consist of were seen as decisions for others to make – the new state and the nation as a whole. Commissioners stressed again and again to victims that they had heard their requests, that they had been noted and that the TRC would do what it could to help. They did state, however, that the decision was not up to them, but up to parliament – or “the president”, as it was put in most cases.

In its Final Report, the TRC made a vast number of recommendations. The centrepiece was financial reparation32 for those found to be victims within the mandate of the TRC. However, this was to be backed up by broader socio-economic transformation.

The TRC’s recommendations

The TRC proposed reparation in five categories: urgent interim reparation, individual reparation grants, community rehabilitation, institutional reform and symbolic reparation.

1) Urgent interim reparation – This was authorised during the TRC process to cover urgent costs such as medical expenses. Payments of between R2,000 to R6,000 per victim were made to about 12,000 victims.

2) Individual reparation grants – After much consideration the TRC recommended that individual financial reparation in the form of an annual cash grant of R21,700 be paid to all those found to be victims (around 22,000 people) for six years. Other options which were rejected included providing services (such as healthcare and counselling) rather than a cash grant, and trying to tier payments according to severity/need. (Orr, 2000: 244-245) Commissioner Wynand Malan

31 Cornio Smit was eight years old in 1985 when he was killed in a bomb blast. 32 The TRC drew on international experience in formulating its recommendations for reparation. Reparations were implemented for survivors of the Holocaust after World War II. In 1982 the US government established a policy of providing a letter of apology and one-off payment of U$20,000 to those of Japanese ancestry who were forcibly moved from the west coast and interned during World War II. (Banks, 2001) There are a number of international instruments that lay out the right to compensation or reparation – the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; the Covenant Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the Inter-America Conventions on Human Rights. (Ntsebeza, 2001)

144 submitted a minority position against the Final Report, in which he argues against this decision. Instead he argues for a small cash grant, and further reparation to be provided through services, according to need. “While the expressed or implied purpose is that victims should be using such cash grants to take care of the needs flowing from the harm suffered, the real risk exists that other interests may weigh more.” (TRC, 1998: Vol. 5, Minority Position, Section 78)

3) Community reparation – The TRC recommended: “the establishment of community-based services and activities, aimed at promoting the healing and recovery of individuals and communities that have been affected by human rights violations”. (TRC, 1998: Vol. 5, Ch. 5, Section 30)

4) Institutional reform – This was defined as reform needed to prevent the recurrence of human rights abuses, particularly given the fact that most of the Apartheid state was left intact after 1994. Victims expressed concern that police implicated or proven to be involved in human rights abuses were still serving in the police force, and often in the same areas.

5) Symbolic reparation – Symbolic reparation included proposals for museums, memorials, renaming of streets, etc. Other measures proposed by the TRC included a national day of remembrance and measures to “assist individuals to obtain death certificates, expedite outstanding legal matters and expunge criminal records”. (TRC, 1998: Vol. 5, Ch. 5, Section 29) A national archive was also proposed. (TRC, 1998: Vol. 5, Ch. 8, Section 103)

The TRC made a host of other recommendations in terms of reparation and rehabilitation, including:

• a demilitarisation program aimed specifically at youth and conducted in partnership with schools and local sporting facilities;

• assistance for dislocated persons and communities;

145 • provision of housing;

• assistance for starting and continuing in education;

• community-based rehabilitation programs for perpetrators;

• the establishment of local treatment centres which could provide ongoing support.

Above and beyond all of this, the TRC also argued that social transformation was also necessary.

The commission recommends that government accelerate the closing of the intolerable gap between the advantaged and disadvantaged in our society by, inter alia, giving even more urgent attention to the transformation of education, the provision of shelter, access to clean water and health services and the creation of job opportunities. The recognition and protection of socio-economic rights are crucial to the development and sustaining of a culture of respect for human rights. (TRC, 1998: Vol. 5, Ch. 8, Section 14)

Job creation, continuing action against racial discrimination, community policing, land redistribution, retraining of prison staff and action against corruption were also suggested.

The TRC recommended that a body responsible for the implementation of the reparation and rehabilitation policy be located in the office of the president – to allow co-ordination of different government departments to achieve outcomes. This body was supposed to be run by a board of trustees including human rights organisations, and was to facilitate communication with non-government organisations. It was envisaged that this body would establish provincial reparation desks. (TRC, 1998: Vol. 5, Ch. 5, Sections 116- 119) Reparations would be co-ordinated and provided by the President’s Fund which was established by the same Act as the TRC. This fund would accumulate its finances from international donors, the national budget and the interest earned from accrued funds. (Leseka, 2000)

146 The TRC’s approach

The TRC faced a difficult task in outlining what change was needed. In the post- Apartheid context, there were many different ideas about what should be done. Colvin writes that most of the people he talked to in his study on victims and victim groups in the western Cape expressed that there could be “no reconciliation without justice”. (2001: 14) Within this, he identifies two main definitions of justice amongst victims:

The first and narrow definition of justice is grounded in notions of individual rights and contractual obligations. Most pertinently, it involves the fight for reparations and special pensions … The broader definition of justice is focussed on the structural, material and social transformations: reconstruction of the social bonds within and between communities, economic empowerment, access to educational opportunities, affordable housing and security. (2001: 14)

In general, the TRC’s approach was based on recommending reparation to individuals, but also promoting a broader process of public acknowledgement, institutional change and socio-economic transformation. The TRC attempted to construct a widely acceptable approach and make a moral argument for change. However, in doing so, it came up against important theoretical debates about what sort of change was needed, which were hard to address. (See Chapter 3.) In addition, there were a number of divergent views which existed and emerged within the South African social context.

The ANC approached socio-economic transformation from the standpoint of group rights and collective recompense. It emphasised tackling racial oppression in terms of political participation in, and representation by, the state. It also stressed amelioration of economic inequality and differential rights to achieve this. Meanwhile, other parts of the liberation movement and much of the rank-and-file membership of the ANC wanted more radical measures aimed at structural change – involving things such as taxation and redistribution. As argued in the previous chapter, many businesses argued for minimal taxation, and an emphasis on economic growth from which social amelioration would be funded.

147 In amongst all this, the TRC adopted a composite approach based on individual reparation and socio-economic transformation. The main indicators of the latter that the TRC itself seemed to use were freedom from violence, but also movement towards increased socio-economic equality and increased security in terms of life’s essentials (food, health, housing, education). The TRC states in its Final Report:

The mandate of the Commission was to focus on what might be termed “bodily integrity rights”, rights that are enshrined in the new South African Constitution and under international law. These include the right to life, the right to be free from torture, the right to be free from cruel, inhuman, or degrading treatment or punishment, and the right to freedom and security of the person, including freedom from abduction and arbitrary and prolonged detention. But bodily integrity rights are not the only fundamental rights. When a person has no food to eat, or when someone is dying because of an illness that access to basic health care could have prevented – that is, when subsistence rights are violated – rights to political participation and freedom of speech become meaningless. (TRC, Vol. 1, Ch. 4, Section 56-57)

However, as stated in Chapter 2, the “systemic view” includes criticism that the TRC did not clearly outline the structural nature of abuse, and therefore the structural change that was necessary. Examples of literature analysing the post-Apartheid era include Marais (1998) and Bond (1999). Accordingly to this literature, while the end of formal discrimination was important, the historical legacy of racial oppression and continuation of class relations has meant that massive inequality has persisted, predominantly along race lines. The TRC did not outline a program for structural change, and it was impossible for an institution like the TRC to have done so. The TRC outlined a fairly coherent and well-argued approach based on reparation and the need for socio-economic transformation. The main problem was how this would be enacted.

Who or what should pay?

By recommending and arguing for reparation the TRC hoped to ameliorate the damage caused by abuse. As such, I would argue that the TRC saw reparation as a way of taking of “collective accountability” for gross human rights violations. Beyond this, socio- economic transformation would be a way of taking collective accountability for what

148 had happened under Apartheid more generally. The TRC recommended that the state, as the collective body of the new nation, should enact this.

Within this framework, the TRC argued for individuals and collectives to voluntarily hold themselves accountable by contributing to reparation and socio-economic transformation. The TRC generally stressed the need for the commitment of “all” reconciliation. Tutu writes: “The onus is on each single South African to realise that this is not a project to which anyone can be indifferent. It is a long-term and enduring process to which it is incumbent on each and every South African to make his or her contribution”. (1999: 127) Within this, it made numerous appeals to individuals and collectives:

In this process of bridge building, those who have benefited and are still benefiting from a range of unearned privileges under apartheid have a crucial role to play … a great deal of attention must be given to an altered sense of responsibility; namely the duty or obligation of those who have benefited so much (through racially privileged education, unfair access to land, business opportunities and so on) to contribute to the present and future reconstruction of our society. (TRC, Vol. 1, Ch. 5, Section 111)

In terms of raising funds for reparation and socio-economic transformation, policies put forward by the TRC, for consideration by the government, included:

• a wealth tax;

• a once-off levy on corporate and private income;

• a once-off donation of 1% of the market capitalisation of every company listed on the stock exchange;

• a retrospective surcharge on corporate profits extending back to a particular date;

• a surcharge on golden handshakes given to public servants since 1990;

• the suspension of all taxes on land and other material donations to disadvantaged communities;

149 • investigating other possible revenue sources such as the cancellation of the debt run up by the Apartheid regime and the use of the SASRIA fund – a business fund designed to safeguard against business losses during the latter part of Apartheid. (TRC, 1998: Vol. 5, Ch. 8, Section 39)

However, the TRC did not specifically link its findings of responsibility to accountability in terms of who or what should pay.

The TRC encountered a number of different views on this issue. Suggestions floated before the TRC in terms of who or what should pay included: politicians and government functionaries involved in Apartheid policies, individual perpetrators, whites as a whole, individual whites, individual businesspeople, South African business as a whole, multi-national companies and financial institutions.33 This reflects some important underlying theoretical debates, as well as contextual ones, which existed before the TRC, throughout its work and continued afterwards. As one example of this, Gibson and Macdonald present results from a survey of 3,727 South Africans in 2001 that show very disparate views about who or what should pay for compensating victims, although a majority of all respondents agreed that compensation was necessary.

By a margin of 8 to 1, blacks are more likely than whites to attribute responsibility for compensation to white South Africans.34 These contradictory positions on the compensation issue no doubt reflect vastly different understandings of who is, or should be, held responsible for gross human rights violations during the struggle over apartheid. (2001: 4)

Gibson and Macdonald write that a majority felt that at least the government should pay. (2001) While this was technically correct – the implementation of reparation and socio- economic transformation could only be carried out by the state – it also avoided tricky questions about how this would be funded, and who or what should pay. The TRC itself steered away from dealing specifically with some of the debates which emerged about

33 A range of non-government organisations are campaigning to cancel the Apartheid debt owed to multinational corporations and financial institutions. A multi-billion dollar class action has also been filed against companies such as Credit Suisse, DaimlerChrysler and IBM, accused of supporting Apartheid.

150 how to apply accountability. In doing so, the TRC relied on the idea that the new state would resolve some of these issues and enact reparation and socio-economic transformation. It writes in its Final Report: “The present government has accepted that it is morally obliged to carry the debts of its predecessors and is thus equally responsible for reparation.” (TRC, 1998: Vol. 5, Ch. 5, Section 20) However, the ANC’s response to the TRC’s recommendations made it clear that no such agreement existed.

The ANC’s response

By the time that the TRC’s recommendations were handed down, the ANC held government in its own right – following the withdrawal of the NP from the Government of National Unity. This probably served to increase victims’ expectations that reparation would be forthcoming. However, some have argued that the ANC government came to resent the TRC’s assumption that the new state should pay reparations.

Many different commentators with different views on the TRC expressed similar views on this subject. Tom Lodge, author on South African politics and head of the School of Politics at the University of the Witwatersrand, says: “There may be a resentment that they as the new state are still being held responsible for the actions of their predecessors. I think some of it is grudge.” (interview conducted May, 2002) Sheila Meintjes from the Gender Commission, who was involved in preparing a submission to the TRC on gender issues, states: “I think the ANC also thinks ‘Why should we have to pay for this?’ They don’t feel responsible.” (interview conducted May, 2002) This may also have been influenced by a growing distaste within the ANC for the direction the TRC went in after it was set up. Hugo Van Der Merwe from CSVR agrees: “Generally the Final Report soured its relationship with the TRC. The more it could ignore the TRC, the more it could ignore its criticisms of the ANC.” (interview conducted June, 2002) Daniel writes:

Mbeki’s attitude was reflected in his boycott of the report’s handover ceremony, in the paltry single afternoon set aside for Parliament to debate the report and the many critical African National Congress speeches – including his own – that marked the debate. (2002: 19)

34 Although, interestingly, 40% of whites agreed that they had been beneficiaries under Apartheid.

151 I outlined earlier how the ANC was prepared to take collective political responsibility for the actions of its members, but bristled at the emphasis on individual responsibility and the TRC’s moral approach. Mbeki in particular objected to the way the TRC dealt with abuses on both sides. In this context, the ANC may well have objected to the moral argument that “the nation”/everyone should contribute to reparations – as it felt that not everyone was (equally) responsible and that therefore not everyone should be held accountable.

In addition, against what it saw as the individualised approach of the TRC, the ANC leadership emphasised the historic privilege of whites, and the need for collective recompense for blacks. Some of those who lean towards the “systemic view” argue against reparations on this basis. Deputy general secretary of the SACP and ANC MP, Jeremy Cronin, says: “It is not to say that victims who participated are undeserving, but there are many more who are just as deserving, and many, many others who are victims of that past, and remain so.” (interview conducted May, 2002) The ANC took issue in general with an approach based on individual payment. Cedric Mayson from the ANC says:

When the TRC started … people did not think in terms of personal benefits. But because the TRC hung on for a long time and the period in which it did was when there was a tremendous emphasis from different backgrounds to change things to a very different, Western focus of: “what’s in it for me”. We’ve analysed it very deeply in the ANC, how it is that a society can change from a social focus to a personal focus, from what can I do for my country, to what can my country do for me. Many people in the beginning wanted to contribute to the process by telling their stories, listening to each other and forgiving. But as the process wore on people became more focussed on getting amnesty on one side or spelling that out in reparations on the other. (interview conducted May, 2002)

The ANC floated a number of alternatives to individual payment. Initial indications were that it favoured community or symbolic reparation, but little was done in relation to these reparation measures either. Beyond this, the ANC argued that individual reparation should be forfeited in favour of more general socio-economic transformation.

152 The ANC’s alliance partners, the SACP and COSATU, have tended to agree that individual recompense is not the priority – and that socio-economic transformation is more important. Jeremy Cronin states:

I have close comrades who feel very passionately about reparation. I don’t feel so passionate. It is the systemic redress that is more critical, rather than the few thousand who will get reparation ... Redress is about major socio-economic transformation. We need to focus on that. But at the same time promises were made. So we have to be careful. (interview conducted May, 2002)

Head of the COSATU parliamentary office, Neil Coleman, argues:

We see real reparations as being socio-economic justice and transformation – something much more sweeping, justice for the millions. That is counterposed to a liberal viewpoint of individual reparation. How do you separate individual human rights abuse from the fact that over 50% of our population are living in abject poverty as a result of the previous system? (interview conducted June, 2002)

The problem is that at an individual level it is possible to separate out gross human rights violations – either you were raped and killed or you were not, and if you were, then it is possible to make an argument that you or your family should be compensated. This is the basis of campaigns for reparation being led by victim groups and advocates.

In any case, others argue that what resulted in terms of reparation was more heavily influenced by the increasingly neo-liberal economic policy being implemented by the ANC. Bond (1999) outlines how a growing international consensus on neo-liberal economic policy in this period helped to propel the ANC towards a policy emphasis on investment, budget stringency and lowering taxation. In this context, Hamber and Rasmussen argue that reparations clashed with government commitments to cut public spending as a proportion of GDP, and with a budget structure that does not favour new budget line items. (2000) This is despite the relatively small cost. Hamber and Rasmussen estimate that the total reparations cost as recommended by the TRC would have been R477.4 million per annum or R2.864 billion over six years. This amounted to 0.06% of the Gross Domestic Product in 1999. (2000) After the TRC, about R36 million had been used to pay urgent interim reparation – only around 10% of the R340 million

153 in the President’s Fund as of October 2000. (Leseka, 2000) By the time the government announced its one-off reparation payment (R900 million) the fund had received a very similar amount in donations (R800 million).

In terms of raising funds, author on the TRC’s business and labour hearings and the political economy of post-Apartheid South Africa, Patrick Bond, claims: “It is not so hard to find that money. There was a small initial transition tax in 1994, a 5% levy – that’s all. Meanwhile, corporate taxes went from 48% to 35%. Personal top-rung taxes were coming down.” (interview conducted May, 2002) However, this conflicts with a neo-liberal economic approach to taxation.

Interestingly, the TRC significantly strengthened its argument for business contributions to reparation in the codicil to the Final Report which was released in 2003. (TRC, 2003: Vol. 6, Section 2, Ch. 5) It included a discussion of legal justifications for reparation claims against Swiss banks (for supporting Apartheid through major loans), against parastatals and against mining corporations. It writes:

A reparations claim against corporations like Anglo American would be based on the extent to which decades of profits were based on systematic violations of human rights. In legal terms, this could be based on the principle of “unjust enrichment”. “Unjust enrichment” is a source of legal obligation. Actions based on “unjust enrichment” are common to most modern legal systems. (2003: Vol. 6, Section 2, Ch. 5, Section 60)

In addition, it explicitly recommended a business tax (TRC, 2003: Vol. 6, Section 5, Ch. 7, Section 6), and wrote:

Given resource constraints, creative ways of generating funds earmarked for rehabilitation services should be considered. These could include tax incentives to encourage private sector businesses to contribute to a specific post-Truth and Reconciliation Commission Fund. The economic and social implications of a time- limited taxation levy on wealthier South Africans’ earnings also need to be considered. (2003: Vol. 6, Section 2, Ch. 7, Section 11)

Nevertheless, the ANC explicitly ruled this out in its response to the release of the codicil.

154 Perceptions

The TRC’s good intentions in outlining a comprehensive set of recommendations for reparation and transformation perhaps may have served to fuel the illusion that it could resolve these issues, or that there was already an agreement that would be carried out after its end. In the codicil to its Final Report, the TRC writes:

This delay [of reparation] has led to ongoing public debate and widespread criticism. Much of this criticism has been directed at the Commission, as public perception, frequently fuelled by the media, has continued to see reparation as the responsibility of the Commission rather than of the government. (2003: Vol. 2, Section 2, Ch. 1, Section 20)

The TRC’s moral approach did not reap the results that it hoped. Large-scale business contributions to reparation were not forthcoming. While the overall impact of the TRC on the white population is still an area of debate, and will not be dealt with in detail here, it is clear that the TRC’s moral appeal was not matched with demonstrative widespread white remorse and contributions to the President’s Fund for reparation.

Surveys display a large degree of disdain or lack of interest in the TRC process by white South Africans. A survey was conducted by the Institute for Justice and Reconciliation in July 2000 of 2,200 South Africans across the country. Of this sample only 29% of whites agreed that the TRC was an important initiative in building a united nation, compared with 77% and 67% of the black and coloured respondents. (Macdonald, 2000) A year later, in a similar survey, 76% of blacks approved of the work of the TRC, while only 37% of whites did. (Gibson and Macdonald, 2001: 3) The hostility felt by many whites towards the commission is reflected in the fact that not only were the vast majority of violations reported by black people, but over 80% of amnesty applicants were black too.

The TRC argues that the focus on horrific violations may have led to many ordinary white South Africans feeling less involved in the process. The TRC notes that:

This focus on the outrageous has drawn the nation’s attention away from the more commonplace violations. The result is that ordinary South Africans do not see

155 themselves as represented by those the Commission defines as perpetrators, failing to recognise the “little perpetrator” in each one of us. (TRC, 1998: Vol. 1, Ch. 5, Section 108)

Despite this, others feel that the impact on the white community has been significant, and forced some people to confront the past. Commissioner Wendy Orr argues:

The impact it had on white people, not overt victims or perpetrators, is a change in their understanding of Apartheid. Up to now they’ve thought it wasn’t very nice, but the truth commission really brought home the violation. Many white people have said to me that they were shocked. I mean they chose to be ignorant, but they can’t be any more. Many felt that they couldn’t watch TV after the first or second hearings … but I think there is a clearer understanding of what happened in those 40 years. (interview conducted May, 2002)

In any case, ambivalence to reparation has remained. Macdonald found in a survey conducted by the Institute for Justice and Reconciliation in July 2000 that 70% of blacks believed that some material compensation was required, but a low percentage (20%) of whites agreed. (Macdonald, 2000) A year later, in a similar survey, overall support for compensation had grown. (Gibson and Macdonald, 2001: 3) However, Macdonald writes:

The research clearly indicates that South Africa has a long road to travel in terms of reconciliation. Particularly amongst white South Africans, much work remains to be done in encouraging reconciliatory attitudes and some form of commitment towards reparations. It is vital for the purposes of justice and reconciliation that all South Africans feel willing to contribute and assume responsibility for the process of national reconciliation. (2000)

Much was expected of the TRC, and even more of the reconciliation process more generally. The results in terms of reparation and socio-economic change have been disappointing – and this reflected badly on the TRC. Prominent Khulumani campaigner and former political prisoner, Duma Khumalo, says: “It was good and it was bad. Good to tell your story. But we can talk, but then what? We were promised reparation. We expected that they [perpetrators] would pay. But they are the winners.” (interview conducted May, 2002) Lazarus Kgalema, a clinical psychologist working with victims,

156 argues that the experience was mixed, but that some victims may even have felt worse after the process.

Most went to hearings on the understanding that their lives would be changed in regards to basic needs. They opened their wounds and nothing changed. Can you see how that is double traumatisation? Rubbing it in that you are powerless. (interview conducted May, 2002)

However, what resulted post-TRC had much more to do with the direction of the ANC government, and the impact of ongoing social and political divisions.

After the TRC

Individual reparation may not have been such an issue if the socio-economic transformation that the TRC envisaged and the ANC promised had resulted. The ANC’s hoped for growth and investment did not eventuate (Marais, 1998: 125) and transformation has been slow. The government provides the following summary of achievements in the period 1994-2000:

• Water – 4 million more people now have access to clean running water.

• Housing – R1.1 million allocated in housing subsidies; about 700,000 units completed; production at about 200,000 units per annum.

• Electrification – 70% of households connected; 1.5 million new connections.

• Telephones – 4.2 million new connections.

• Poverty Relief – R3 billion allocated.

• Health – Over 600 new clinics; free health care for pregnant women and children under six.

• Social Services – R100 billion a year expenditure.

• Public works – 1,500 km of roads built.

• Land – 68,000 families resettled on farming land.

(RDP Development Monitor, 2000)

157 However, these achievements look better on paper than in reality. Many households have had water, electricity and phones cut off because they cannot pay the bills. The housing units built are often incredibly small, and many have been declared uninhabitable. Meanwhile the backlog has grown to an estimated 2.5 million. Corruption and lack of infrastructure often means that spending does not reach its target. High rates of teacher and student absenteeism in schools undermines the effectiveness of education expenditure. Less than 1% of South Africa’s farmland had been redistributed to poor, black households in 2001. (The Economist, 2001: 5)

As set out previously, the ANC argued that reparation was not necessary because socio- economic transformation was the priority, and would deliver. However, despite the end of Apartheid, South Africa remains one of the most unequal societies in the world. The poorest 40% of households (equivalent to 50% of the population) receive only 11% of total income, while the richest 10% of households (equivalent to only 7% of the population) receive over 40% of total income. (May, 1998) Inequality has grown rapidly since the 1970s, and this trend shows no signs of reversing. Inequality is still predominantly – although not exclusively – along race lines.

• In 1999, 61% of Africans were classified as poor, compared with 38% of coloureds, 5% of Indians and 1% of whites. (Government of South Africa, 2000)

• In 1996, whites occupied 73% of managerial positions, compared to 11% of blacks working as managers or legislators. (Mgxashe, 2000: 215-216)

• In 1996, black unemployment was estimated at 42.5%, compared with 4.6% for whites. (Government of South Africa, 2000)

• According to the United Nations Human Development Index, it was estimated in 1995 that if the 12% of South Africans who are white were considered a separate country it would rank 24th in the world, just behind Spain. Black South Africa would rank 123rd. (Asmal, et. al., 1997: 133)

158 The National Report on Social Development 1995-2000 provides the following statistics for availability of basic services in housing for the year 1998/1999:

Refuse Flush Electricity Tap water Telephone removal toilet (In home or on stand) ======

White 100 100 98 96 87

Asian 98 97 99 98 72

Black 80 34 31 27 12

Coloured 98 83 76 72 43

(Government of South Africa, 2000)

The majority of the poor are still black, and despite some inroads made by the new government, still face lack of adequate sanitation, safe drinking water, and housing. Healthcare services, particularly in a context of high rates of HIV infection, are also a major problem.

In response to the difficulties of enacting socio-economic transformation in South Africa, the ANC increasingly turned towards the growth of the black middle class and elite, arguing that this was the path to prosperity for all. Mbeki stated in 1999:

As part of the realisation of the aim to eradicate racism in our country, we must strive to create and strengthen a black capitalist class. Because we come from among the black oppressed, many among us feel embarrassed to state this goal as nakedly as we should. Our lives are not made easier by those who, seeking to deny that poverty and wealth in our country continue to carry their racial hues, argue that wealth and income disparities among the black people themselves are as wide as disparities between black and white … All this frightens and embarrasses all those of us who are black and might be part of the new rich. Accordingly, we walk as far and as fast as we can from the notion that the struggle against racism in our country must include the objective of creating a black bourgeoisie. I would like to urge, very strongly, that we abandon our embarrassment about the possibility of the emergence of successful and therefore prosperous black owners of productive property and think and act in a manner consistent with a realistic response to the real world. (Mbeki, 1999)

159 However, this sort of economic empowerment, and the fruits of affirmative action, are not evenly distributed. In 1975, 95% of the richest tenth of the population was white. In 1996, 22% of the top tenth was black. (The Economist, 2001: 11) However, this means that inequality is growing within population groups too. The report Measuring Poverty in South Africa found that between 1994 and 1998 inequality in earned monetary income increased between rich and poor overall, but also amongst white and black. (Statistics South Africa, 2000)

African households, for example, have a Gini coefficient35 of 0.54, nearly as high as the national figure. Rural/urban inequality is considerable, with African and coloured median incomes in the rural areas being about half the African and coloured median incomes earned in urban areas. (May, 1998)

Any upward-mobility of blacks is to be contrasted with the situation of the poorest 40% of the population, who are mostly black. Between 1975 and 1991 the mean income of the highest-earning African households rose by 40%, while the income of the lowest- earning 40% of African households declined by 40%. (Marais, 1998: 106)36

After the TRC, this has further complicated the reconciliation process and the ongoing discussion of responsibility for the past, and who or what should pay for future change. Colvin argues that the lack of socio-economic change is now perceived by victims as a “combination of white’s refusal to give up social and economic power as well as the abandonment they perceive on the part of their former comrades”. (2001: 20) Some victims expressed resentment that the circumstances of some blacks had changed while theirs had not. Chubb and Van Dijk quote Riefatt Hattas who testified at the children’s hearings:

I am dead inside and I am not capable of having any relationships. I don’t care about any achievements. I can’t live with myself. I am no longer in the Struggle, but this is my struggle now, inside me … And then you look at the TV and see the Winnie Mandelas and all those people getting rewards. Why are they still being

35 The Gini coefficient is an international measure of inequality. A score of 1 equals perfect equality, while a score of 0 equals perfect inequality. 36 Interestingly, inequality is growing amongst whites too. Between 1975 and 1991, the poorest 40% of white household incomes dropped by 40%, while the top 20% remained stable. (Marais, 1998: 106) However, it should be remembered that overall only 1% of whites are classified as living in poverty.

160 honoured? They are already in Parliament. Why don’t they give my comrades something? My comrades don’t have work. I have nothing. I clean toilets for a living. (2001: 147-148)

Ntsebeza reports that:

An ANC member stated at a hearing in Grahamstown that it was all very well for Comrade Nelson Mandela to speak easily of reconciliation, because his circumstances had changed for the better since he was released from prison, whereas the speaker, also a victim of apartheid, and a former political prisoner, was in the same, if not a worse position than when he was released from prison. (2000: 105)

The anger that some have begun directing at the ANC is reflective of their perception that it has failed to take responsibility for fixing up the legacy of the Apartheid past, or failed to get others (white South Africans and business) to do so. Within this, an emerging source of anger is that some blacks have benefited, while others have not. Unfortunately, part of the ANC’s response to this context (and defence of its policy) has been to re-ignite race-based discourse – as a way of deflecting responsibility.

Since the release of the TRC’s report and the ascension of Thabo Mbeki to the Presidency there has been a shift towards race-based discourse on the part of the government. Mbeki stated in a speech to parliament after the presentation of the TRC’s report:

A major component part of the issue of reconciliation and nation-building is defined by and derived from the material conditions in our society which have divided our country into two nations, the one black and the other white. We therefore make bold to say that South Africa is a country of two nations. (1998)

While this could be seen as a call for change, many are suspicious of the motives behind such comments. Hamber argues that there is a tendency to divert attention from the government’s economic policies by blaming the “enemies of change” – who are mostly identified as white. (1998) The ANC was not responsible for the way that white South Africans and business responded to the TRC, and calls for contributions to future

161 change. However, it can potentially be held responsible for not pursuing policies which would have addressed these issues – i.e. taxation.

Practical implications

These were difficult and contested issues. The underlying theoretical and contextual debates about how responsibility should apply went far beyond the scope of the TRC. It was not going to be possible for the TRC to enact the reparation and change it recommended, and it is not the TRC’s fault that the results have been disappointing. Despite its valiant efforts in drawing out the damage caused by abuse, the change needed to ameliorate this, and the need for reparation and socio-economic transformation, the difficulties the TRC experienced had practical implications in terms of how it was perceived.

According to the “systemic view”, the TRC’s approach to responsibility and accountability failed to adequately identify the structural causes of abuse, the role of important collectives within this (such as business) and thus undermined an argument in terms of their accountability. However, it wasn’t possible for the TRC to establish the role of such collectives within “the system” and outline a program for structural change. Findings of collective political responsibility for benefiting or standing by were enough to justify levying taxation for reparation and socio-economic transformation. This argument was strengthened by the TRC in the codicil to its Final Report.

The “practical view” points out that the TRC could not have done more in establishing responsibility and accountability in a “systemic” sense – focussing on the practical limitations imposed by the TRC’s mandate and its context. However, within this, some acknowledge that it could have done some things better in terms of promoting reparation and change. For instance, Burton suggests that Commissioners should have made themselves available to go back and visit communities where testimony took place, as part of an ongoing supportive process. (2000: 111)

The “procedural view” agrees that more needed to be done in terms of responsibility and accountability of individuals and collectives. It suggests that the TRC should have stuck

162 to a narrower view of its role, but set the basis for its work to continue after it finished. In this vein, Simpson argues that: “Perhaps one of the greatest faults of the TRC was its general failure to either utilize or build the unique capacity of organs of civil society (particularly non-governmental organizations (NGOs) championing human rights) to maximize its achievements”. (1998) Simpson links this to the TRC’s wish to maintain an unbiased image, but argues that this is unfortunate given the role these organisations could have played in keeping the TRC on track with regard to victim’s needs at a grass roots level, and also in taking the demands of victims further after the TRC ended. (1998) These structures could perhaps have facilitated a discussion about responsibility and how to apply it in terms of accountability – which went beyond the TRC. The work of such organisations was more explicitly recognised in the codicil to the Final Report. (TRC, 2003: Vol. 6, Section 2, Ch. 6) Others feel that commissioners could have played a stronger role in politically pressuring the government after the TRC. Head of political studies at the University of Cape Town, Andre Du Toit, argues:

I don’t think it is good enough to just hand over the report to the government and say that it is their problem now. At the outset the idea of a truth commission was not left in the hands of the politicians. There were sustained initiatives from outside. Even more, at the end the truth commission should have sustained and followed through … There were no support structures. It did a lot to undermine the impact which it did and might have had. (interview conducted June, 2002)

In any case, what I have argued, in line with the “procedural view”, is that theoretical and contextual debates over the concepts of responsibility and accountability impacted on the TRC’s ability to define what it was trying to do and could realistically achieve. In terms of accountability and future change, it was impossible for the TRC to satisfy everyone and there was no consensus on the issues it covered, investigated and discussed. The TRC attempted to draw in discussion of broader abuse under Apartheid and the need for future change, through a moral approach. However, this raised expectations about what issues it could cover, and frustrated those who wanted more specificity or different conclusions to be evident in its discussion of accountability. All of this had important practical implications for how the TRC was perceived.

163

Chapter 7: Conclusion

The main aims of the investigation which has been conducted here have been to draw out important debates in theory and in the South African social context over the concepts of responsibility and accountability for human rights abuse, and to look at how these were present within, and impacted on, discussions within and around the Truth and Reconciliation Commission.

The TRC did not specifically discuss or define theoretical concepts of responsibility or accountability. However, I have drawn out some important features of its implicit approach. The TRC attempted to formulate an approach to individual abuse, social context and collective responsibility. It held hearings in which it questioned the responsibility and accountability of various individuals and collectives. It made a range of findings in its Final Report against individual perpetrators, those who ordered abuse, political parties, state institutions, and other institutions such as business. It attempted to facilitate and make recommendations around accountability in terms of future change. It outlined a comprehensive set of recommendations based on individual reparation backed up by broader socio-economic transformation. It made a range of moral arguments for accepting responsibility for the past and contributing to a new moral future. This was an ambitious and complex approach.

Theoretical debates

I have argued that in discussions within and around the TRC, a number of theoretical issues became important. These include: the relationship between individual responsibility, collective responsibility and the influence of “the system”; the nature of collective responsibility; the nature of morality; the distinction between moral and political responsibility; and how individuals and collectives can or should be held accountable.

164 The level at which responsibility should apply – individual or collective – goes back to important debates in political theory over determinants of human action and historical change. Within the theoretical literature, I have drawn out a number of different perspectives on how to understand and prioritise individual agency and how it relates to collective action and the dynamics of social systems. Collective responsibility in particular is a contested concept because it raises the issues of the relationship between the responsibility of collectives and the individual responsibility of their members, and also the relationship between collective responsibility and the influence and functioning of “the system”. Defining collective responsibility requires consideration of two important issues – the nature of the collectives under consideration, and what collectives might be held responsible for. I have argued that it is important to distinguish between social institutions (which have a structure and leadership) and social groups (which have no clear structure or leadership). This makes it relatively more difficult to establish the responsibility of the latter (and the responsibility of their members). This distinction leads on to what collectives might be held responsible for – active participation in or collusion with human rights abuse, as well as the rather more passive actions of benefiting and standing by.

What I have argued is that the TRC had difficulty dealing with these complex theoretical issues, and it was not possible for it to construct an approach which would have satisfied everyone. This also became evident in terms of considering what type of responsibility should apply. The distinction between moral and political responsibility is another point of theoretical debate which emerged as important.

In the first instance, this debate goes back to definitions of morality. The TRC saw morality as a given, something which could be found and agreed upon through discussion. However, coming to any sort of moral consensus was going to be very difficult in such divided society. Many debates remained unresolved – particularly around responsibility and accountability. There is a lot of debate and discussion in the literature over whether and how to distinguish between moral and political responsibility, and then how this should be applied to individuals and collectives.

165 Considering individuals in relation to social context and collective responsibility introduces a range of influencing factors which go beyond individual morality. Individuals do have moral views and will act in relation to these – and this can certainly be interrogated. But an emphasis on individual agency may actually contradict an approach based on asking an individual to take moral responsibility for the actions of others. These are ultimately the individual moral responsibility of each person concerned, and it was relatively easy to evade responsibility in response to this line of questioning. In the same way, it is relatively easy for individuals to evade taking moral responsibility for a broader collective. In terms of how to apply responsibility to collectives, I have argued that it does not necessarily make sense to say that a collective has a morality, but that it is possible to judge collectives from a moral perspective. However, because moral responsibility is somewhat reliant on admissions from individuals and collectives, I have argued that it is important to consider ways of finding an individual responsible in a political sense for influencing others (particularly when they are in a position to order them), and to look at ways of assigning collective political responsibility (and apply this to members). These are difficult and contested issues.

The reason that these issues are important is that they lead on to debates about accountability in terms of ameliorating the damage caused by abuse. While acceptance of moral responsibility may help motivate voluntary apologies and contributions to compensation for victims, findings of individual and collective political responsibility justify compelling accountability – possibly through removal from office or taxation for reparation. How to approach this, in theory and in practice, is something which was hotly-debated in South Africa.

Practical implications

Throughout the thesis I have drawn out how each of these issues emerged within and impacted on the TRC’s work.

In terms of perpetrators, the TRC faced the challenge of integrating individual responsibility with acceptance of the influence of social context and collective

166 responsibility. It also faced the difficulty of how to investigate questions of social context and collective responsibility – as an institution based on individual testimony. In its institutional hearings, not all social groups and institutions could be produced to testify – even via key leaders or representatives. The TRC then faced the problem of how to deal with the nature of the institutions it was investigating, and interrogate representatives who did appear. In investigating the role of important institutions and groups, it encountered the limitations of its mandate. In pursuing the responsibility of collectives for contributing to abuse, the TRC strayed into more general questions about the role of various institutions under Apartheid. This led to a lack of clarity about what it was trying to find collectives responsible for.

In its hearings, the TRC concentrated on moral responsibility. However, it ran into the problem that asking “representatives” to take individual or collective moral responsibility on behalf of such collectives did not necessarily make sense – and was met with a litany of denial. These difficulties were less obvious in the TRC’s Final Report – where it was mandated to make findings – but were far from resolved. Beyond this, in its recommendations the TRC faced the difficulty of linking its findings of individual and collective responsibility to accountability. Within a more general focus on “collective accountability” through reparation and socio-economic transformation, the TRC emphasised voluntary responsibility-taking and self-imposed accountability. However, important theoretical and contextual debates around who or what should pay remained unresolved, and the results have been disappointing.

The TRC did not and could not have come up with an approach which resolved the theoretical debates and practical problems raised by its approach. These are difficult and contested issues. In addition, it could not resolve the very different conceptions of responsibility and accountability which existed in the South African social context.

Contextual debates

There were many different ideas about who or what the TRC should have been trying to find responsible, for what and in what sense, and what accountability then flowed from

167 this. From an analysis of the existing literature on the TRC and original interviews conducted with key informants, I have drawn out a number of opposing views about responsibility and accountability in the South African social context, and what the TRC could and should have done to address these.

The “systemic view” argues that the TRC should have done more to expose the systemic nature of abuse, the individuals and groups responsible for Apartheid, and outline a plan of systemic change. It generally criticises the TRC’s moral approach as being overly individualised, and insufficiently specific about responsibility for the past. It seems to suggest that the TRC could have named individuals, groups or things which were responsible in a “systemic” sense and therefore should be held accountable, but failed to do so. This critique attacks the theoretical underpinnings of the TRC’s approach. However, it does not consider in detail practically how the TRC could or should have done things differently, within it stated mandate.

168 is that the TRC could not hope to please everyone or resolve all the debates around responsibility and accountability that it encountered. However, its emphasis on social context, collective responsibility and morality created some confusion over what it was trying to do and what could realistically be expected of it. This served to fuel anger and criticisms post-TRC.

In a detailed analysis of the TRC’s hearings and Final Report, I have drawn out how the theoretical points of debate outlined above, and these three opposing views, were present within and impacted on the TRC’s work.

Practical implications

In line with the “procedural view”, I have argued that the TRC could not hope to please everyone or resolve all the debates around responsibility and accountability that it encountered. The TRC was formally mandated to consider responsibility for gross human rights violations and make recommendations for reparation and change. However, its emphasis on social context, collective responsibility and morality fuelled unrealistic expectations of its work – both in terms of what issues it could cover and what results could be expected. It was not going to be possible for the TRC to establish responsibility for “the system”, and the role of various collectives within this. Its moral emphasis frustrated those who wanted more specificity or a different account. Its moral arguments for acceptance of responsibility, and future change, were frequently met with denial and arguments against reparation. Its ambitious approach based on reparation and socio-economic change led to some ambiguity over what it could enact and achieve. This has all impacted negatively on how the TRC was and is perceived.

Criticism has been bolstered by the disappointing results post-TRC. Hopes of widespread white remorse and business contributions have been dashed, and the post- transition state has gone to great lengths to deflect the responsibilities assigned to it by the TRC. Much of the anger directed at the TRC is a reflection of the ANC’s failure to deal with the very difficult legacy of the country’s past, which means that much of the past social system of Apartheid remains intact. After the TRC this has resulted in

169 increasing calls for it to have established responsibility for this system (and the need to levy the past beneficiaries) and to have forced the ANC to listen. This retrospective analysis does an injustice to the TRC. The TRC was only one institution and it had limited control over what happened afterwards. The influence of important social distinctions and divisions which continued to exist post-Apartheid, and the direction of economic and social policy being pursued by the ANC, were much more important.

However, the TRC was an important institution in framing and shaping the discussion of responsibility and accountability in South Africa. Better understanding the theoretical and contextual debates which emerged may help to inform future discussion around these issues in South Africa, and beyond.

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188 APPENDIX A: List analysed transcripts from the amnesty hearings There are 50 overall.

Phokeng, May 20-21, 1996 (2) Available at:

Boy Diale Christopher Mokgatle

Pretoria, July 15-19, 1996 (2)

Mr Van Eyck Jean Pierre Du Plessis

Pietermaritzburg, October 15-16, 1996 (1) Available at:

Brian Mitchell

Potchefstroom, 1996 (5)

M.W. Faltein J.T. Ncube P. Lebona T.S. Lekitlane E. Busakwe

189

Durban, November 5-7, 1996 (3) Available at:

Dirk Coetzee Almond Nofomela David Tshikalanga

East London, November 12, 1996 (1)

Bonakele Jwambe

Pietermaritzburg, February 10-13, 1997 (5)

F. Erasmus W. Harrington N. Madladla C. Mzimela M. Khanyile

Cape Town, July 7-11, 1997 (5)

Mongesi Christopher Manqina Mzikhona Eazi Nofemela Vusumzi Samuel Ntamo Ntombeki Ambrose Peni

190 Jeffrey T. Benzien

Port Elizabeth, October 6, 1997 (4)

Nicholas Janse Van Rensburg Johannes Godfrey Raath Hermanus B Du Plessis G.N. Erasmus

Cape Town, November 17, 1997 (2)

W. Riann Bellingan Tikapela Johannes Mbelo

Durban, March 24, 1998 (4)

Nimrod Mbewu Thembu Thulani Mzokhona Myeza Nkanyiso Wilfred Ndlovu Goodman Musawakhe Ngcobo

Johannesburg, April 20-24, 1998 (3)

191 Pitso Joseph Hlasa Deon Martin Carel Hendricks

Vanderbijlpark, August 11-14, 1988 (3)

Vincent Kusahusa Khanyile Mplupeki S. Tshabangu Jack Mbele

Durban, August 10-September 3, 1999 (8)

H.J.P. Botha J.A. Vorster S.G. Du Preez Lawrence G Wasserman Bernard Mwelase Matthys Cornelius Botha F Labuschagne General J A Steyn

Pretoria, July 23-August 1, 2000 (2)

192

Eugene Alexander De Kock Shaun Mark Callaghan

193 APPENDIX B: List of analysed transcripts from the political party recall hearings

Cape Town, May 12-16, 1996 African National Congress Available at: Delegation from ANC – led by Thabo Mbeki (deputy president)

National Party Available at: Delegation from NP – led by FW De Klerk (former state president)

194 APPENDIX C: List of analysed transcripts from the State Security Council hearings

Johannesburg, October 14, 1997 Available at: Available at: Available at:

Opening statement – Archbishop Desmond Tutu Statement – R.F. “Pik” Botha, former National Party minister for Foreign Affairs Statement – Adriaan Vlok, former National Party minister for Law and Order Statement – Leon Wessels, former National Party deputy minister for Law and Order Statement – Roelf Meyer, former National Party minister for Constitutional Affairs

Cape Town, December 4-5, 1997 Available at: Available at:

Statement – Neil Barnard, former director of the National Intelligence Service Statement – General Magnus Malan, former head of the South African Defence Force

195 APPENDIX D: List of analysed transcripts from the Business and Labour hearings (Business groups and unions were represented by delegations. The first names of some individuals, and their positions, did not appear in the transcripts. I have attempted to attain these, and the proper spelling, where possible.) Held at the Carlton Hotel, Johannesburg, November 11-13, 1997.

Day 1 – November 11 Available at:

Opening statement – Archbishop Desmond Tutu Statement – Professor Sampie Terreblanche Delegation from National African Federated Chamber of Commerce – testimony led by Mr. Kongwane Delegation from Barlow Rand – testimony led by Mike Rosholt (executive from 1963- 1990) Delegation from the South African Chamber of Commerce and Business – testimony led by Humphrey Koza (president) and Raymond Parsons (director general) Delegation from Old Mutual – testimony led by Gerhard Van Niekerk (managing director) Delegation from Eskom – testimony led by Willem Kok (finance director) Delegation from Armscor (South African Arms Corporation) – testimony led by Mr. Hayward Delegation from Foundation of African Business and Consumer Services – testimony led by Reggie Tshwangane (president) Summary – Professor Lewis Nkosi

Day 2 – November 12 Available at:

Delegation from the Rembrandt Group – testimony led by Johan Rupert (chairperson) Statement – Professor Nic Wiehan

196 Delegation from the Afrikaanse Handelsinstituut – testimony led by Andreas Van Wyk (former president) Delegation from the Anti-Apartheid Archives Committee (previously involved in the Anti-Apartheid Movement) – testimony led by Lord Bob Hughes Statement – Ann Bernstein (executive director, Centre for Development and Enterprise) Delegation from the Anti-Apartheid Debt Coalition led by the South African National NGO Coalition – testimony led by Rams Ramashia (president) and Kumi Naidoo (executive director) Delegation from the Islamic Chamber of Commerce – testimony led by Mr. Kesani (president) Delegation from the Reserve Bank – testimony led by Chris Stals (governor) Delegation on behalf of the banking industry (Council of South African Banks) – testimony led by Mohamed Taki Delegation from the Black Management Forum – testimony led by Terry Crawford- Browne and Fuad Cassim

Day 3 – November 13 Available at:

Delegation from South African National Life Assurance Mutual – testimony led by Desmond Smith (managing director) Delegation from Avalon Cinemas – testimony led by Moosa Moosa Delegation from the Development Bank of South Africa – testimony led by Dr. Ian Goldin (chief executive) Delegation from the Tongaat-Hulett group – testimony led by Cedric Savage (managing director) Delegation from the Land Bank – testimony led by Dr. Dulny Delegation from the Chamber of Mines – testimony led by Boddy Godsell (president) and Adrian Du Plessis (industrial relations advisor) Delegation from the South African Congress of Trade Unions – testimony led by John Komama (president) and Sam Shilowa (general secretary)

197 Delegation from Anglo-American – testimony led by Bobby Godsell Delegation from the Steel and Engineering Industries Federation of South Africa – testimony led by Brian Angus (executive director) Summary – Professor Charles Simkins and Professor Sampie Terreblanche

198 APPENDIX E: List of analysed transcripts from the human rights violations hearings Listed by name in order of testimony. There are 200 overall.

East London, April 15-18, 1996 (32) Available at:

Nomonde Calata; Sindiswa Mkhonto; Nombuyiselo Mhlawuli Nyameka Goniwe Elisabeth Hashe; Nquabakazi Godolozi; Rita Galela Fezile Donald Madoda Jacobs Joe Thethinene Jordan Robert Kohl Charity Kondile Mike Kota Ernest Malgas Ntsomikazi Evelyn Mata Toni Lillian Mazwai Jackson Mbovane Bessie Mdoda Feziwa Mfeti Thembisa Constance Mginywa Nohle Mohape Nontuthuzelo Mphelo Sithilifu Ndzumo Mxolisi Rweqana P.N. Sabatana Beth Savage Billy Shiyani Nokuzola Songelwa Robert Norman Stanford

199 P.T. Tabalaza Karl Webber Khayelethu Ace Yali Nonceba Zokwe

Heideveld, April 22-25, 1996 (43) Available at: (Testimonies were listed by the name of the victim, rather than the name of the person who testified. I have listed testimonies according to the name of the person who testified, and included the name of the victim in brackets where they are not the person testifying.)

William Little Beauty Ngudle; Siyanda Ngudle; Senator Tinto (for Looksmart Khulile Ngudle) Isaac Ndazemsela Rani Margaret Elizabeth Titus; Marylin Titus (for Johannes Titus) Nomakula Evelyn Zweni; Girlsie Nyenyembezi Nodwzakazi Juqu; Mr. Juqu (for Fuzile Petros Juqu) Joan Mantombi King; David Motlale (for Henry Kwisomba) Sisana Mary Maphalane; Thembile Male (for Lennox Maphalane) Zenzeli Eric May Cynthia Ngewu; Irene Mtsingwa; Ms. Khonele; Eunice Thembiso Miya (for Christopher Piet; this file also includes other victims in the Guguletu seven case) Nomvuyo Priscilla Zantsi; Ms. Quay (for Sonny Boy Zantsi) Busiswe Kewana; Thomzana Maliti (for Nombulelo Delato) Nokiki Gwedla (for Albert M Kopolo) Wilfried Lubowski; Ms. Lubowski; Annalize Lubowski (for Anton Lubowski) Phyllis Maseko (for Ezra Em Maseko) Mlandeli Walter Mqikela Nomatise Evelyn Tsobileyo Nomputumo Melane; Patricia Glepu (for Ginana Vellem)

200 Mark E Fransch; Basil Snayer (for Anton Fransch) Elsie Gishi (for Jackson Gishi) Marilyn Javens (for Guy Javens) Richard Phikani; Madodomzi Kama (for Mzimkhulu Johnson) Maudlina Lutya (for Wiseman Madodomzi and Thamsanqu Lutya) Bishop Retief Lucas Baba Sikwepere Paul Manuel Williams

Methodist Church, Johannesburg, April 29-May 3, 1996. (36) Available at: < www.doj.gov.za/trc/hrvtrans/jb_victim.htm>

Gregory Edmund Beck Michael Bolofo Reuben Joseph Dibakoane; Mr. Ranyaoa Felicia Azande Dlodlo Sylvia Dlomo-Jele George Dube Elizabeth Floyd Maggie Friedman Priscilla Gama Marina Geldenhuys Hester Grobelaar Paul Hlongwane Abdulhay Jassat Madrina Jokazi Ben Kgoathe Lorraine Lenkoe Jabulani Lukhele Elizabeth Maake Martha Yebona Mahlangu

201 Cornish Mmeko Makhanya Nombulelo Elizabeth Makhubu Mabel Matlakala Makope Michael Meyer Catherine Mlangeni; Sepati Mlangeni Gotla Paulina Mohale Mavis Msomi Sarah Mthembu Rokaya Salojee Lizzie Thandi Sefolo James Simpson Johan Smit Gerald Thebe Hawa Timol Moleseng Anna Tiro

Durban, May 7-10, 1996 (49) Available at:

Emily Sikadi Magashule Maria Molokwane Adelaide Ngcobo Dimakatso Nakedi Veli Katherine Sibankhulu; Thabile Clarissa Sibankhulu; Zanele Hazel Sibankhulu Mandla Cele Joyce Nomvuya Msisazwe Patricia Quinn; Philip Quinn Joyce Mananki Siphe Helen Kerney Johannes Raseko David Mhlapo

202 Dumisani Phungula; Mrs. Phungula Beatrice Nikiziwe Mshengu; Musawenkosi Mshengu Gary Govindsamy; Kasavan Terence Arengasamy Yusuf Haffajee Mamela Mayi Silelane Nicholas Ndedelwa Trifina Jokweni Nombuso Majola Roesemary Cele Dual Amos Hlatswayo Florence Mbatha Jerico Nzama Sibongiseni Goodlord Linda Nzama Haroon Aziz Buyele Patience Zungu-Mthembu Krish Govender Thuli Gabela Nxumale Dube Vuma M. Tshabalala Zamiswazi Mkhize Philisuya Khuzwayo Hopewell Khuzwayo Patrick Hlongwane Sabatha Madikizela Eunice Dlomo Lupina Nozipho Zondo Eugenia Thandiwe Piye Gregory Tuntulwana Gertrude Mbambo Siza Cyril Mhlongo Thelakuhle Bongikile Sithole

203

Soweto, July 22-26, 1996 (9) Available at:

Ntombenkulu Busang Christina Buthulezi Laloo Chiba Johannes Dube Janet Goldblatt Nomazotshwa Gqabi Henry Isaacs Peter Magubane Saul Ozynski

Bisho, September 9-11, 1996 (10) Available at:

Ntobeko Osward Mafa Buzelwa Eunice Matikinca Ncumisa Alice Kali Monwabisi David Hlakanyana Mzwabantu Nqabisa Thembinkosi Ntengento Thembela Mtyingwana Wandile Mbathu Boyce Nqono Yoliswa Kewuti

Alexandra, October 28-30, 1996 (10) Available at:

204 Obed Bapela Nomakwezi Buya Bennet Lekalakala Sidney Mabuza Margaret Madlana Hilda Phahle; Mamokete Malaza; Esther Mtembu

Cradock, February 10-12, 1997 (7) Available at:

Celeste Barker Nosisi Dorah Bill Ketani Frans Blou Phillip Bejile Bob Nomight Regina Booyse Thandiwe Agness Dano Mangaliso Johnson Dilima

Guguletu 7, February 17-18, 1997 (4) Available at:

Cynthia Ngewu (for Christopher Piet) Tsherden Mbenyana (for Zabonke Khonele) Eunice Miya (for Jabulani Miya) Context statement – Sheikh Gabier

205 APPENDIX F: List of interviews List of interviews conducted during fieldwork.

Those involved in the TRC process

TRC employees

TRC Commissioners - Wendy Orr: Deputy Chair of the Reparation and Rehabilitation Committee. (Johannesburg) Interview conducted in Johannesburg, May 24, 2002. - Yasmin Sooka: Human Rights Violations Committee. (Pretoria) Interview conducted over the phone from Johannesburg, May 28, 2002. - Dumisa Ntsebeza: head of the Investigation Unit. (Cape Town) Personal conversation, Sydney, August 17, 2001.

TRC Committee members - Russel Ally: Human Rights Violations Committee; involved in business and labour hearings. (Johannesburg) Interview conducted in Johannesburg, May 16, 2002.

TRC Investigators - Piers Pigou: Investigation Unit in Gauteng; worked on Winnie Mandela case; researcher at CSVR. (Johannesburg) Interview conducted in Johannesburg, May 22, 2002. - Zenariah Barends: head of Investigation Unit in Western Cape. (Cape Town) Interview conducted in Cape Town, June 4, 2002. - Zenzile Khoisan: Investigation Unit in the Western Cape; author on the TRC. (Cape Town) Interview conducted in Cape Town, June 4, 2002.

206 Victims

Trauma Clinic, Centre for the Study of Violence and Reconciliation (Johannesburg) - Lazarus Kgalema: clinical psychologist; researcher, CSVR. Interview conducted in Johannesburg, May 9, 2002.

Trauma Centre for Survivors of Violence and Torture (Cape Town) - Margaret Green: trauma counsellor. Interview conducted over the phone in Cape Town, June 7, 2002.

Khulumani Victim Support Group (Johannesburg) - Thandi Shezi: project manager; testified at the TRC’s women’s hearings. Interview conducted in Johannesburg, May 15, 2002. - Duma Khumalo: executive committee; testified at the TRC’s human rights violations hearings and the prison hearings. Interview conducted in Johannesburg, May 25, 2002.

Sarah Mthembu: founding member of what became the Alexandra Civic Organisation; testified at the TRC’s human rights violations hearings in Alexandra. (Johannesburg) Personal conversation, Johannesburg, May 16, 2002.

Observers/Commentators

Non-Government Organisations

Centre for the Study of Violence and Reconciliation (Johannesburg) - Polly Dewhirst: senior researcher, Transition and Reconciliation Program; worked for TRC on setting up a human rights violations database. Interview conducted in Johannesburg, May 22, 2002. - Hugo Van Der Merwe: Project Manager, Transition and Reconciliation Department. (Cape Town)

207 Interview conducted in Cape Town, June 7, 2002. - Thloki Mofokeng: manager, Transition and Reconciliation Program. Interview conducted in Johannesburg, May 10, 2002. - Carnita Ernest: researcher on victim views on reconciliation. Interview conducted in Johannesburg, May 21, 2002.

Institute for Justice and Reconciliation (Cape Town) - Fanie Du Toit: Reconciliation and Social Reconstruction portfolio. Interview conducted in Cape Town, June 3, 2002.

Jubilee South Africa (Cape Town) - Dennis Brutus: author; poet; former political prisoner; reparations campaigner. Interview conducted in Johannesburg, May 18, 2002.

Intellectuals

Deborah Posel: Wits Institute for Social and Economic Research, University of the Witwatersrand; organiser of “The TRC: Commissioning the Past” conference held in Johannesburg in 1998; editor of upcoming book on TRC. (Johannesburg) Interview conducted in Johannesburg, May 23, 2002.

Tom Lodge: School of Politics, University of the Witwatersrand; author of upcoming book on South African politics post-1994 with chapter on TRC. (Johannesburg) Interview conducted in Johannesburg, May 20, 2002.

Sheila Meintjes: Commission for Gender Equality; contributed to a submission on gender issues presented to the TRC. (Johannesburg) Interview conducted in Johannesburg, May 14, 2002.

208

Dale McKinley: African Studies, University of North Carolina; author on the ANC. (now in Johannesburg) Interview conducted in Sydney, April 2, 2002.

Patrick Bond: Graduate School of Public and Development Management, University of the Witwatersrand; author on the transition and on the TRC’s business and labour hearings. (Johannesburg) Interview conducted in Johannesburg, May 30, 2002.

Andre Du Toit: Head of Political Studies, University of Cape Town; author on the TRC. (Cape Town) Interview conducted in Cape Town, June 5, 2002.

Political parties/organisations

African National Congress (Johannesburg) - Cedric Mayson: national co-ordinator, Commission for Religious Affairs. Interview conducted in Johannesburg, May 29, 2002.

South African Communist Party (Cape Town) - Jeremy Cronin: deputy general secretary, SACP; ANC National Executive Committee; ANC MP; author on TRC. Interview conducted over the phone from Johannesburg, May 21, 2002.

Congress of South African Trade Unions (Cape Town) - Neil Coleman: head of the COSATU parliamentary office. Interview conducted in Cape Town, June 6, 2002.

209 Pan African Congress (Johannesburg) - Themba Godi: national organiser. Interview conducted over the phone in Johannesburg, May 23, 2002.

210 APPENDIX G: Interview schedule Interview schedule from fieldwork.

== Introduction and General ======

Tell me about how you got involved or interested in the TRC process.

== Perceived role of TRC ======

Some say the TRC was simply an instrument for investigating and uncovering the truth about gross human rights violations. Others say it had a broader role – in addressing the past and moving to a more just future. What do you think?

== Impact: individual and social/national ======

What do you think victims felt about the TRC process?

Did victims get what they wanted out of the process?

And now?

What do you think of the TRC’s emphasis on forgiveness?

What impact did the TRC have on the nation more generally?

Where was it more successful?

== Truth about the past ======

How well did the TRC bring out the truth for individual victims?

How well did the TRC bring out the truth about the past under Apartheid, beyond individuals?

The TRC seemed to take an approach of building a new moral consensus on the past. Was this a useful strategy or was it not advisable in retrospect?

211 Some argue that this consensus-building approach obscured important social and political divisions. What do you think?

== Social justice ======

The TRC accepted that reparation and change towards a more just society were necessary for reconciliation.

Has this change occurred?

What role did the TRC, or should the TRC have had, in advocating for this change?

Why do you think the ANC has not implemented reparations?

== Retrospective ======

Given the negotiated settlement could things have turned out any differently?

Could the TRC have done anything better?

What should be done now?

== Summing up ======

Any other comments?

212