Peace with accountability and respect for human rights

Ensuring sustainable dividends for the future

by Yasmin Sooka

In most conflict ridden societies, the rights of victims and the violations they have suffered become less important than resolving the conflict and creating peace. In peace processes, the parties at the negotiating table are often themselves perpetrators of violations and the main protagonists in the violence. Whilst the main objective of the negotiations is to establish peace, a major objective for some of the parties is also ensuring that in the ensuing transition, the major perpetrators escape prosecution or any accountability. Blanket amnesties are thus seen as an important facet of the peace process. The problem with this, of course, is that this lapse into impunity comes back to haunt these fragile societies. Zimbabwe and Angola are cases in point. The lack of accountability thus creates the potential for a repetition of conflict. The victims of these conflicts are mostly ordinary citizens who become pawns in the hands of either one or other side.

In the South African conflict, more than 20 000 people are reputed to have died during the period 1984 to 1994. Often political ideology is not the real reason for the conflict. In a number of incidents, issues of geography and old clan and leadership loyalties play an important role in causing and maintaining the conflict. Where you live defines your loyalty and role in the conflict. Land, access to resources and new opportunities have the potential to become new issues of conflict. South Africa has thousands of people who were displaced in its conflict during the apartheid era. The challenge for the new government is ensuring that in finding solutions to these problems, new conflicts do not emerge. Benefiting a few could become a new reason for old hatreds, grudges and abuses to re-emerge.

Establishing the truth about the reasons for the conflict is important in order to deal with those responsible for the conflict and to begin to establish new relationships of trust between former enemies. In this regard, political stability should not be confused with reconciliation, forgiving and forgetting. Truth commissions have the potential to create the foundation for political stability. It is a powerful tool that can be used to change mindsets and attitudes thus creating the potential for people to live together in all their diversity, respectful of each other’s spaces. A truth commission cannot be held responsible for delivering reconciliation to the nation like a gift though. Reconciliation is a progressive realisation of an ideal, which is primarily dependent on justice for the victims, including acknowledgement of wrongdoing, the challenging of the inequalities that victims find themselves living with and providing material economic changes. Equalizing the benefits between victims and perpetrators is necessary in the long-term to create the conditions for reconciliation and to begin nation-building.

The process of re-integrating perpetrators into society is crucial to prevent the creation of a new group of people who see themselves as marginalized and unimportant in the new society — new victims with the potential to create conflict again. In South Africa, many of the old guard, particularly in the military, saw the Truth and Reconciliation Commission (TRC) as a witch-hunt against Afrikaners. As beneficiaries of apartheid they found it difficult to accept that apartheid and its policies bestowed on them privileges which had led to major divisions in society and which had caused great suffering to those disadvantaged by those policies. They refused to accept that the new democratic government had to find ways to redress the years of inequality for the vast black majority. Instead, many of them perceived such efforts as aimed towards marginalizing them as a group. The present government and institutions of civil society have an important role to play in dealing with these misconceptions and assumptions. If left unchallenged, these attitudes fester and become a new focus for conflict. Rwanda and the former Yugoslavia are examples of this. Former privileged groups in these countries see attempts by their present governments to deal with those responsible for violence as an attack on their particular group. This situation presents these governments with challenges to ensure that old hatreds do not cause new conflict.

Healing the memories of abuse, repairing the damage of treating people without dignity and giving value to their being becomes important in any peace building initiative. This is because one of the reasons for the violence perpetrated is the assumption that the victims are less than human. Restoring humanity is therefore crucial to the peace process.

South Africa is one of the first countries in the world where accountability informed the peace process. An important distinction in the peace building process was the question of democratisation and accountability. The process of democracy took into account the suffering of the vast majority of our people. Whilst many black South Africans suffered under the system of apartheid, it was the vast African majority who bore the brunt of its evil policies such as land removals, job reservation, separate development policies, poor education and lack of access to economic resources. Redress to this diverse victim group therefore had to take a multi-faceted approach. Thus whilst political and civil reforms are important, equally important are issues of justice and accountability, access to economic prosperity, land restitution, poverty alleviation and gender equality. The Constitution, the establishment of the Land Commission, the Reconstruction and Development Policy, the establishment of the “Chapter Nine” institutions and the TRC were identified as important mechanisms for building democracy, establishing accountability and making redress to this complex group of victims.

The amnesty clause in the post-amble to the Constitution, which gave rise to the establishment of the TRC, was seen as a bridge to building a new society within which former enemies would find meaningful ways to live together. It was not envisaged that this would take place against a background of amnesia, but that the process of gaining amnesty demanded accountability, truth-telling, acknowledgement of victims and a proper process of reparation. It is important to note that amnesty could only be obtained by way of individual application to a special amnesty tribunal, which formed part of the TRC. The Commission itself was independent of the political process and free of such influence. In addition, full disclosure had to be made in exchange for which amnesty was granted.

One of the most remarkable features of the amnesty process was that victims were a central part of it. They had to be given notice of the amnesty application and had rights to be present at the public hearing and to oppose the application. The victim also had the right to cross-examine the perpetrator and produce witnesses if so wished. Another innovation, which was different to the way truth commissions have been handled in other countries, was the public hearings at which both perpetrator and victim appeared. All who appeared before the TRC faced public scrutiny. The nation became part of the process and was exposed to the sheer banality of the evil of our past. This process offered every South African the opportunity to look into a mirror, examine his or her own complicity with the atrocities of the past and find in the experience the potential to become part of the much-needed cathartic process. Indeed, publicly exposing past evil is necessary to ensure that it is never repeated.

One of the most important contributions made by the TRC to the nation’s collective historical memory is the conclusive manner with which it dealt with the former state’s denial that it had become a criminal state involved in a war against its own citizens who had opposed the policy of apartheid and those enforcing it. Following the hearings of the TRC and its findings, no South African of any hue can ever deny that the former apartheid state had perpetrated gross human rights violations against its own people. It is clear that the apartheid state operated beyond the boundaries of the law in killing, torturing, abducting and severely ill-treating its people. It had even created special death squads to perpetrate this violence.

An important contribution made by the TRC’s work was the opportunity that it provided for many families to redeem the memory of loved ones who had been accused of collaboration with the former apartheid state. The machinery of the apartheid state and its successful disinformation strategy meant that many families lived during the apartheid era with the stigma that their loved ones had betrayed their people, comrades and the struggle. There are a number of cases where the truth has been uncovered through the truth-telling process. The stories of Nokathula Simelane, Ben Langa, Timothy Seremane, Phila Ndwandwe and many others are in essence recovered personal histories of people, the redeemed memories of whom previously distorted by apartheid disinformation, have been restored to their communities. (See the forthcoming TRC Final Report for the stories of the people mentioned.)

Respect for the human rights of citizens is one of the primary obligations of a state. In this regard, one of the most empowering tools for victims provided by the TRC has been the space created for them to come forward to tell their stories and have their experiences acknowledged by the nation. Knowledge is not enough; knowledge has to be converted to acknowledgement before a change in power relationships can take place. The victim hearings of the TRC became a powerful tool in the truth-telling process. No one listening to story after story of pain and suffering could doubt that the violations were part of a systematic plan of action funded by the apartheid state.

The international community has begun to view South Africa’s TRC as an incredibly powerful tool in the fight against impunity. A truth commission has the advantage of allowing victims to become the main focus of its processes. This factor is important and cannot be achieved in a criminal trial, which focuses on proving the perpetrator’s guilt, thus making the perpetrator the most important focus of a trial. Truth commissions also have the potential to deal with accountability, which criminal trials rarely succeed in doing. In most transitions and peace processes, leadership remains unaccountable. Trials of leadership are rare and can lead to a second victimisation for victims. Prosecutions focus on proving guilt. The evidential requirement is of a high standard, “beyond a reasonable doubt”. Often cross-examination within an adversarial legal process diminishes the value of the evidence of an unsophisticated witness. If the perpetrator is acquitted, the victim loses confidence in the judicial system and perceives him- or herself to again be a victim in the process.

The South African TRC offered the country the opportunity to grapple with the role played by leadership on all sides. All the political parties appeared before the Commission and were subjected to a robust interrogation of their policies and practices during the apartheid era. This has rarely happened in the history of the world. The Nuremberg and Tokyo trials after the Second World War offered opportunities for the victors to exercise justice, but they were not held accountable for their actions. For example, the bombing of Dresden in February 1945 by the British when the war was already over resulted in the deaths of thousands of people. The firebombing of Tokyo by American planes in March 1945 led to the loss of more than 80 000 lives and was the largest number of people killed in an aerial attack during the war. But such brutal actions by the victors were not subjected to scrutiny. This is a problem in most transitions where the violations perpetrated on all sides are not open to scrutiny. In South Africa, one of the most commendable features of the accountability process was the way the former liberation movements ensured that their own actions during the struggle against apartheid were examined. Their full co-operation and commitment to ensuring that the rights of victims were taken into account largely contributed to the success of the TRC.

The TRC’s work brought to life the words of Dullah Omar, Minister of Justice in the first cabinet of President Mandela when he announced on 7 June 1994 the new government’s intention to establish a truth commission. He stated that the government believed that there was a need to establish a Commission on Truth and Reconciliation to

“enable South Africa to come to terms with its past… If the wounds of the past are to be healed, if a multiplicity of legal actions are to be avoided, if future human rights violations are to be avoided — and indeed if we are to successfully imitate the building of a human rights culture — disclosure of the truth and its acknowledgement are necessary”.

The legacy of violence can only be reversed when human rights standards are observed, questions of impunity addressed and the rights of victims taken into account. Only then, can a culture of human rights flourish and contribute to the rule of law thus preventing a repetition of violence.

The last century has seen some of the worst violence in human history — war crimes; crimes against humanity and genocides have been the order of the day. However, it has also seen for the first time the development of new mechanisms such as an International Criminal Court and truth commissions, the expansion of the doctrine of Universal Jurisdiction and the use of national legislation to hold accountable those who commit these unspeakable crimes. A new global culture of accountability and a commitment to ensure respect for the rule of law is beginning to permeate the world. Perpetrators now face the possibility of being held accountable and brought to justice with the truth of their actions becoming known. This is a positive step in the progressive realisation of a new human rights culture that does not hold with the notion of peace at all costs. The message is clear — peace without accountability and respect for human rights is clearly not enough in our world today.

Yasmin Sooka

Director of the Foundation for Human Rights

(Former Commissioner on the Truth and Reconciliation Commission in South Africa)

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