International Justice

CJ354 Endicott College

Transitioning in Form and Function: SA

As we move toward discussions of TRCs, we begin to delve in to the power of speech itself. Much of the TRC model, particularly in South Africa, is about an airing of grievances–a public display of truth that is very much grounded in a performative act. I want to focus this post on the possibility that performative acts, while significant, can also have the ability to function as performances: lacking genuine backing if the actors decide to change their roles. The case of South Africa, for me, is particularly illustrative. What is widely hailed as a hallmark of the “truth” model, the TRC in South Africa stands as indicative of the disjunction between appearance and reality in post-transition societies. I think that is evident in contemporary politics in South Africa: rampant corruption, immense rates of poverty and crime, and a dissuasion from full multi-party politics. Yet this is not compatible with the discursive structures of the post-apartheid nation. To the contrary, the South African system features a remarkable constitution and constitutional court that exclaim liberal values far greater than much of the globe, including the US. It seems there is a reliable form of rights-respecting governance in modern SA, but the function hasn’t necessarily followed. Why is that? Is it due to personal politics of cronyism temporarily in power? Are there further structural advancements necessary? More broadly, how can we supplement TRCs with insurance that the future government will not return to past practices. It is not enough to denounce the past,  we must find a way to prepare for the future.

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5 responses to “Transitioning in Form and Function: SA

  1. saskiadej November 9, 2012 at 5:18 pm

    I think this post raises several interesting and important points. It’s important to think about the power of speech and how these public airings of grievances affect truth-telling. As we saw in the documentary in class, it’s not clear that everyone who appears before a commission fully discloses everything. In addition, testimonies are subjective, especially if they are based on memories of events that occurred several years before. As we saw with Taylor’s testimony, the tone or attitude of others in the court (such as the victims’ lawyer) could also influence how and what truth is disclosed. Bissett also mentions that truth can be shaped by the commission’s investigative methods and interpretation of its mandate, as well as the documentation it has access to (35). Could truth commissions ever fully move away from personal and narrative truths and focus solely on factual truths while still fulfilling their mandates?

    The comments on contemporary politics in South Africa also reminded me of a recent special report in The Economist on ongoing problems in the country. As the article discusses, South Africa has a very high Gini coefficient (a measurement for inequality)- but unlike under apartheid, there is now a very small, extremely wealthy black elite that has widened the inequality gap. The education system poor, unemployment is high, and, as mentioned above there is rampant corruption. Although the TRC may have made recommendations for structural reform, it cannot ensure that these reforms are adopted. Olsen, Payne, Reiter, and Wiebelhaus-Brahm argue that truth commissions promote more significant improvements in human rights standards when they are used in combination with trials and amnesties. Could trials have helped with this? As we’ve discussed in class, NGOs and civil society have been very active in many truth commissions. The Economist article suggests that pressure from these groups on the political parties, especially the ANC, could help hold the government accountable for its failures – but would this be enough insurance against such practices?

    Link to report: http://www.economist.com/news/briefing/21564829-it-has-made-progress-becoming-full-democracy-1994-failure-leadership-means
    “Over the rainbow: It has made progress since becoming a full democracy in 1994. But a failure of leadership means that in many ways, South Africa is now going backwards”

    • alexj528 November 10, 2012 at 10:05 pm

      The case of South Africa presents an interesting opportunity for a critique on the effectiveness of TRCs, and their growing acceptance as equal to, or even preferable to trials in effectiveness. However, words are sometimes not enough to prevent future abuses. Even when truth commissions have the potential to solve lingering problems, it can be exceptionally difficult to ensure that the whole truth, rather than selective truths, are told.

      Even in a best case scenario, where those most guilty are held accountable, the truth of their crimes known, the efforts of TRCs may be in vain. Without an effective method of enforcement, there is little to guarantee such crimes do not occur again under a new regime. A local example is the federal supervision of all redistricting in the former Confederate States. Without such supervision, it seems unlikely that black constituencies would be fairly represented, given the history of racism and slavery.

      It may stand to reason that part of the failure of TRCs in South Africa is due to a lack of enforcement of necessary protections against abuses. Regardless, I think this example hints at a wider question-is truth and reconciliation enough on its own?

      • awatt14 November 11, 2012 at 10:56 pm

        I think the last question raised here is one of the most difficult parts of TRC’s in general. One of the most complex parts of the TRC, based on the videos we have watched, is it’s difficulty to gauge victims feeling of reconciliation. Some victims seem to believe that hearing the truth is simply enough, but is it really? In the moment, hearing the truth might be enough, but I would be interested to see just how reconciled victims feel years down the road when they know that those who committed atrocities, against there loved ones, are able to walk free.

        Many of the TRC’s that are established in these countries portray the cathartic, truth telling process, that is exemplified in a TRC, as there “traditional” way of justice and believe that putting these trials in a formal court may be to “westernized”. However, based on some of the reactions of the victims who do not feel reconciled, combined with the TRC’s lack of enforcement once the truth is told may be reason enough to use formal court systems for perpetrators rather then giving them amnesty through a TRC.

  2. smshetty November 12, 2012 at 9:24 pm

    The TRC is one of the most visible, renowned, and historic attempts to achieve reconciliation between a battered government and its suffering subjects. I think it’s a worthy question to ask why, then, when conceiving and implementing the ICC, such a well-known model was rejected.

    This isn’t to criticize either model. I merely think it’s interesting that though many countries have adopted a method of reconciliation and confession to drive their justice process, the nations present at Rome in 1998 chose the more conventional route of straight prosecution of alleged criminals. Would the TRC model work internationally? What exactly is so different, so disparate, between the goals of South Africa and the goals of the international community in achieving justice in the face of gross human rights violations? And why was, in both cases, one method favored over the other?

    Most of the ICC’s inefficiencies arise from the fact that multiple nations refuse to bend to the concept of universal jurisdiction; superpowers like the U.S., given their often-unique role in international policing, are wary of being unfairly exposed to ICC prosecution. A TRC type model, which stressed reconciliation over prosecution, could possible dismantle this problem. This proposal has obvious implausibilities, many of which overlap with the ICC’s current problems. In the future, however, I think it’s important to frame international justice in ways other than a universal court that prosecutes alleged human rights criminal. We can start by looking at ways in which countries, in and of themselves, have chosen to tackle the tricky issue of accepting the past and working to ensure a better future.

  3. mhdeck November 14, 2012 at 2:11 pm

    This point raises an interesting question: why does the international community not use a model that has proven successful in the past? To that end, the question might be the nature of the transition in South Africa increased the success of the TRC. In transitions where there many crimes of mass violence, rape, and attacks on civilians the TRC model might fall short of moving the country towards stability and peace. The Bissett piece argues that truth commissions are usually not completely successful without being used in conjunction with trials. This is because truth commissions might not tell the complete truth and cannot do formal retribution. While trails allow for formal retribution. I think that part of the reason that the model of the TRC is not used internationally is because part of the amnesty process for the TRC was brokered. The National Party made amnesty a non-negotiable demand; moreover, the party was still strong will going out of power. In other transitional justice situations the amnesty might not be brokered and that changes the premise of the truth commission. Olsen argues that truth commissions alone tend to have a negative effect on human rights, but used in conjunction with trials and amnesty the effect is positive. The South Africa case is specific to deals brokered before the commission, the nature of the transition, and the nature of the violence. In other instances the style of the commission might fail if it were used alone.
    The role of the ICC is to end impunity and prevent future crimes, while the role of truth commissions is to develop a history of patterns of abuse. The two have very different goals and ways of understanding situations. I think that is important that truth commissions are used, but they should not be seen as the “best” model. Part of transitional justice is using mechanisms such as: trials, truth commissions, reforms, and reparations. In sum, the TRC was successful in South Africa, but that does not mean the model would be successful elsewhere.

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