Justice That Restores

Any person who has been tortured will recall the slogan whereby torturers live: "You can shout or cry as loud as you want to, nobody will hear and nobody will ever know!" Today they are afraid to face their victims because the Truth and Reconciliation Commission (TRC) and our new government have destroyed the lie on which they have built their lives, their children's lives. This is the beginning of reparation. They are now swallowing their words in front of the country and their - and their victims' - children.

However, the TRC is exposing us to a form of justice to which we are unaccustomed. Our legal system taught us everything about justice as punishment for crimes. It now has to learn to dispense restorative justice, i.e. justice as restoration after the draconian deed. Restorative justice - specifically, the idea of linking justice and reconciliation - has its deepest roots in Greek culture. After the reign of Draco (the father of 'draconian' laws), one of the most brutal dictators the world has ever known, a new way of restoring and healing community had to be found. Through this process justice was dispensed, not essentially for punishment, but mainly to restore both victim and perpetrator to their common humanity in a healed society.

Painfully we are becoming aware of the need to understand the very difficult relationship between reconciliation and justice. For some people these notions are synonymous; for others they are mutually exclusive. Truth and reconciliation relate directly to each other; reconciliation is neither synonymous with nor exclusive of justice. Reconciliation is not meant to subvert justice - neither does it replace it.

The Nuremburg trials as well as the Stasi investigations in the 'old' Germany show how difficult the issue of legal justice aimed at perpetrators can become. In many instances the courts could not conclusively rule against alleged perpetrators; thus many victims were frustrated and humiliated by the process. The triumphalism of those who stood by the alleged perpetrators did not ease the pain of the victims.

The South African attempt is not in the first place aimed at the perpetrator. Its immediate focus is the restoration of the humanity and dignity of the victim. The commission is an instrument of state briefed to do just that; the country has put its energy into this restoration. This is precisely what draws tears from the eyes of Archbishop Tutu and many of us: we have an opportunity to tell and to participate in each other's horrifying stories so that we can share in a new common humanity borne of pain and suffering.

Reconciliation does not replace or exclude justice. However, it is also unacceptable to make it totally subject to satisfying justice's legal requirements. Reconciliation builds the foundation of commonality which makes it possible for justice to be done in the spirit of openness and acceptance of the other in the interest of our common future. Reconciliation replaces the culture of revenge, not the culture of justice.

The situation is complicated by the constitutional clause on amnesty. Amnesty creates an unnatural cohabitation of reconciliation and legal justice which is impossible to defend on religious grounds. Some argue that the South African amnesty process is not entirely unlike the religious notion of reconciliation. Amnesty is regarded as a way of releasing someone from his or her wrongdoings after the person has publicly confessed and the victim has publicly forgiven. However, there is an important difference: with amnesty, the person is not charged with the responsibility never again to kill, torture or abuse people for political purposes. Religious notions of reconciliation expect this ethical commitment from perpetrators. No confession is complete, at least not as far as the Bible is concerned, unless the person has converted.

Neither does reconciliation preclude compensation and reparation as an act required from the perpetrator. It is in the nature of confession that the confessed wrong be redressed by the doer of the deed. Many victims tell more than just horrific stories of political violence. At the heart of these stories is the brutality of self-serving covetousness, racism and greed. Victims have been robbed of their loved ones and their livelihood. This is concomitant in many of the stories at the hearings.

However, we may have to embrace amnesty on practical grounds. It is important that we do this because the country is asking the perpetrator to incriminate him or herself. There is a condition to this. It has to be seen as a gracious gift, the miraculous gift of the victims, not the victory of the perpetrator. It must be more than a juridical decision. Having victims and perpetrators meet in the spirit of reconciliation is necessary. Religious people call it mercy, a gift towards our common humanity. Dietrich Bonhoeffer, the German theologian who died in Hitler's jail, said that at a time like this the crucial question is "how the children of the future will live". Herein also lies the power of the victim. The victim alone can give or withhold mercy. The perpetrator is powerless and has become a moral beggar for the gift of mercy.

Perpetrators, however brave they may appear, must face another reality - themselves and their children. In his book The Wages of Guilt, Ian Buruma - referring to Japan and Germany - points out that more than sin, guilt is at stake after a nation has been through the experiences of crimes against humanity. He shows how the legacy of shame and guilt has shaped the political movements and government policies in those countries.

South Africa will have to deal with the guilt which perpetrators may not want to confess at this time. The past will soon haunt their consciences. South African perpetrators may be ruthless but they are like perpetrators in other parts of the world - only humans who have been inhuman to their victims and themselves. They have wrecked lives in the name of politics - starting with their own humanity.

I share the conviction that the context of liberation and the context of oppression must lead to different ways of dealing with human rights violations. I therefore have sympathy with the position taken by Deputy President Thabo Mbeki in presenting the ANC's case at the TRC. In the interest of restorative justice and in the execution of its task, the TRC quite rightly called on all parties to make full disclosure of human rights abuses. At stake in this process is the need to secure that we leave a legacy for our children where no one will ever be able to justify human rights abuses on whatever basis. We are contributing to a worldwide movement against torture.

However, there must also be a jubilee for the sufferers - a material correction of the wrong. The Universal Declaration of Human Rights established the "right to an effective remedy by the competent national tribunals" (Article 8). Redress should come in the form of symbolic recognition (e.g. the Steve Biko monument), monetary payment (by government) and medical treatment (by military hospitals and community service of doctors). Yet whatever we may do will never be able to repay the victims of apartheid crimes. They have given us the greatest gift possible, their bodies and their lives.

The most glaring omission in the original mandate of the TRC is the redress of apartheid's economic injustice. Although such inclusion would have made the process much more complex than it already is, addressing the matter of economic restorative justice cannot be avoided. The victims have an undeniable right to claim economic restoration from the perpetrators as well as the state. Our cash-strapped government, even if it might want to, is not in a position to fully compensate victims. Whether they have received amnesty or not, perpetrators will be wholly forgiven only when the word of confession is accompanied by the deed of confession. The TRC has neither the capacity nor the mandate to assist victims or perpetrators in this particular compensation. Other institutions in civil society, the faith communities and NGOs will have to play a part in the quest for economic justice after apartheid.

Religious communities will have to get involved in counselling people, both victims and perpetrators, with post-TRC trauma. For many, the process has been disappointing, disillusioning, shameful. Writing from prison, Bonhoeffer had this wisdom for us all:
The ultimate question for a responsible man (sic) is not how he is to extricate himself heroically from the affair, but how the coming generation is to live. It is only from this question, with its responsibility towards (coming) history, that fruitful solutions can come, even if for the time being they are very humiliating.

Russel Botman is a senior lecturer at the University of the Western Cape in the Christianity and Society Department and moderator of the Southern Africa Alliance of Reformed Churches.

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