Challenging Restorative Justice

Human Rights Dialogue, Series 2 Number 7, Winter 2002

This essay continues a discussion that began in Human Rights Dialogue, Series 2 Number 2, “Litigating Human Rights: Promise vs. Peril.” For further reading on the topic of transitional justice, please see “What Does ‘International Justice’ Look Like in Post-Genocide Rwanda?” by Aloysius Habimana, available online.

In post-apartheid South Africa, human rights were dragooned into the service of nation building and thereby lost public legitimacy. Used by the emerging political elite to manufacture legitimacy for institutions like the South African Truth and Reconciliation Commission (TRC), human rights became the language of political compromise rather than of principle and accountability. From 1996 to 1998, while the TRC functioned, human rights came to be equated with amnesty, reconciliation, and restorative justice. This vision of human rights, quite detached from its legal foundations, conflicted with widespread notions of retributive justice in South African society. Moreover, the TRC deflected attention from the more serious project of the transformation of the legal system in order to make it more representative, quick, and fair. As a result, the TRC was not particularly effective in creating a new culture of human rights or respect for the rule of law.

During the peace negotiations in South Africa, the African National Congress (ANC) and the National Party agreed on a broad amnesty from civil and criminal prosecution for apartheid-era human rights offenders. The TRC was established under the Promotion of National Unity and Reconciliation Act of 1995 to deal with the violence and human rights abuses of the apartheid era on a morally accepted basis and to advance the cause of reconciliation. The TRC was presented to the public as a necessary compromise for the democratic transition and as being in accordance with traditional African restorative justice. Its establishment represented a judgment that social stability is a greater social good than the individual right to obtain retributive justice and to pursue perpetrators through the courts. Retributive justice was defined as “un-African” by prominent members of the ANC elite. TRC chair and former archbishop Desmond Tutu stated in 1996: “God has given us a great gift, ubuntu.... Ubuntu says I am human only because you are human.... You must do what you can to maintain this great harmony, which is perpetually undermined by resentment, anger, desire for vengeance. That's why African jurisprudence is restorative rather than retributive.”

There were benefits to South Africa's experiment in truth and reconciliation. Public recognition of repressed narratives brought together populations that had been separated by the racialized boundaries of apartheid. This created a baseline of shared understanding, allowed for a fusion of horizons, and defined the parameters for discussion of the past. No one can now claim that apartheid was a well-intended policy that somehow went wrong. Nor can anyone deny that tens of thousands of people were killed by the operatives of an abhorrent political system.

Yet the TRC's objectives of facilitating reconciliation and creating a new inclusive and benevolent image of the nation were only partially fulfilled. For all their media coverage, TRC hearings were often little more than symbolic and ritualized performances. They had little impact on the cycle of vengeance in African townships.

Ostensibly, the language of rights represented a departure from Afrikaner nationalism with its romantic images of race, blood, and land. In contrast, post-apartheid nation building appealed to civic nationalism as the new basis for moral integration. Yet this process of nation building also had its own coercive moral injunctions, as the new constitution and subsequent legislation deprived victims of their right to prosecute perpetrators.

My own ethnographic research in the townships of Johannesburg led me to the conclusion that, contra the established view within the TRC, retributive understandings of justice are as prevalent in South African society as those emphasizing reconciliation and forgiveness. When the national reconciliation project encountered individuals’ expectations, the TRC vision of justice clashed with that of many victims. As one TRC statement-taker, Thabiso Mohasoa told me: “Life in South Africa means fighting one another and retaliating. If he does it to me, then I will do it to him.... When taking statements people would be aggressive, saying, ‘I want those perpetrators to be hanged.’” In another example, an ANC political activist told me: Victims “cannot forgive on behalf of the community. They are not the only ones who have suffered.... Forgiveness must be created by legitimate community institutions, not by the TRC who come in for one week and then say they've sorted everything out.”

Evidence from other democratizing countries shows that retributive justice can itself lead to reconciliation, in the sense of peaceful coexistence and the legal, nonviolent adjudication of conflict. Pursuing civil claims for compensation within South Africa not only would have had the advantage of fortifying the rule of law but also would have linked human rights to popular understandings of justice and accorded human rights–oriented institutions much greater legitimacy. This in turn could have helped resolve the wider legitimation crisis of post-apartheid state institutions such as the criminal justice system, which has received only a fraction of the international interest generated by the TRC.

The delegitimation of human rights in relation to popular understandings of justice is also one factor in the upsurge of criminality in South Africa. At the high point of resistance to apartheid in 1986, there were 9,913 homicides in South Africa; in the year 2000, there were 23,823. This increase in criminality has continued unabated and contributed to the growth of violent vigilante groups across the country.

Equating human rights with amnesty and reconciliation conflicts with a state’s duty to punish human rights offenders as established in international criminal law. In other international contexts, human rights have developed in just the opposite, punitive direction. The establishment of the UN war crimes tribunals for the former Yugoslavia and Rwanda have led to a number of successful prosecutions and the indictment of Slobodan Milosevic for genocide. With the extradition proceedings against General Augusto Pinochet in Britain in 1999, which established that heads of state do not enjoy sovereign immunity for acts of torture, and the likely establishment of the International Criminal Court, the stage seems set for international human rights law to transcend national legal systems and to prosecute those involved in gross human rights violations with greater vigor. The tide of global justice is now turning in favor of legality, prosecution, and punishment rather than diplomacy, reconciliation, and forgiveness.

It is imperative that today’s peace and reconciliation efforts be informed by a critical evaluation of the role of human rights ideas and institutions in the democratic transitions of the past decade. In the face of fractured social orders, democratizing regimes have grasped for unifying metaphors, and human rights talk has provided an ideological adhesive through terms such as “national reconciliation.” Such an evaluation would do well to examine what happens when human rights institutions are established in the context of political compromise, where neither opposing side in a civil war has won an outright military victory and where key figures of the ancien régime continue to occupy positions of political power, as F. W. de Klerk did in South Africa.

An examination of how new political leaders have used human rights to reimagine the nation and manufacture legitimacy for state institutions reveals why human rights have become delegitimized in the eyes of many citizens around the world. Democratizing regimes should seek legitimacy not through nation building, efforts to forge moral unity, and communitarian discourses but rather on the basis of accountability and justice defined as proportional retribution and procedural fairness. The role of human rights is to create the bedrock of accountability on which democratic legitimacy can be built.

Response

(See also Bonny Ibhawoh's response to Richard Wilson and Ivana Vuco.)

Vasuki Nesiah and Paul van Zyl

While there have been sweeping changes in South Africa’s political profile, especially in the role that race plays in that profile, glaring inequalities in wealth have remained. South Africans can legitimately claim that the stated commitment of the African National Congress to greater equality has not been matched by concrete policy initiatives. Moreover, it is still an open question whether all segments of the South African population have come to terms with the racial mythologies sedimented into the nation’s psyche, at the individual and institutional levels. We should indeed understand the South African transition as “a work in progress”; democratization is not an accomplishment but a series of ongoing struggles, and the ANC leadership should be held accountable for the outcomes of these struggles. In this context, Richard Wilson’s concerns about the legitimation of the nation-state are a welcome caution against political inertia. We should remain vigilant against blunting struggles for democracy and justice in a moment of postliberation euphoria. By zeroing in on the Truth and Reconciliation Commission as the vehicle of such political docility, however, Wilson may be misguided.

The South African TRC process had its shortcomings (the delayed and inadequate reparation process being just one example), but holding the TRC solely responsible for justice and human rights in the South African transition is problematic for a number of reasons. First, it imposes an unfair burden on the TRC itself. The TRC and the attendant amnesty provisions reflect the wrenchingly difficult dilemmas faced by everyone involved in working out the transitional arrangements. As with many other political transitions, the transformation of South Africa from a system of apartheid to a multiracial democracy involved what former archbishop Desmond Tutu often referred to as “terrible sacrifices made for liberation.” Against that backdrop, grappling with those constraints, the TRC worked toward a genuine confrontation with the abuses of the past. The TRC’s most far-reaching contribution to nation building was that it initiated a national dialogue on truth and reconciliation, a dialogue, moreover, that gave a forum to victims of human rights abuse. Wilson seems to subscribe to a notion of reconciliation put forward by the perpetrators of apartheid crimes, namely, that reconciliation involves sweeping the brutality of apartheid under the rug. The TRC’s vision of reconciliation instead requires a collective agonizing over the challenges of living in a society that is deeply scarred by apartheid but is not defined solely by the legacy of that brutality. Seldom has a nation undertaken such a sweeping and public reexamination of its past.

Second, holding the TRC responsible for justice and human rights in the South African transition lets other public institutions, political actors, and the government off the hook. It is a travesty that there have not been more prosecutions for apartheid-era crimes, that the reparation program has been stalled, that the vast majority of black South Africans continue to live in intolerable conditions. The current government, the legal system, and all those who continue to reap the dividends of apartheid-era injustices should be held accountable for their actions or inactions on all these counts.

While many may share Wilson’s perception that the TRC substituted a policy of “reconciliation” for widespread prosecutions, they ignore the fact that the TRC actually denied amnesty to the vast majority of applicants. These people, along with all the perpetrators who did not apply for amnesty, remain vulnerable to prosecution. The TRC itself strongly advocated a vigorous prosecution strategy to hold these people accountable.

We might not want to limit our understanding of accountability for human rights violations to prosecutions alone. The numbers of ordinary citizens who came before the TRC, and the even larger numbers who remained transfixed by its proceedings though two and a half years of public hearings, belie Wilson’s claims that the majority see justice primarily as punishment for wrongdoing. Wilson himself seems to assume that prosecutions and a punitive notion of justice can provide a “bedrock of accountability” for human rights. One of the signal contributions of truth commissions in general, including the South African TRC, is that they have helped to expand and pluralize the axes of justice. Incidentally, although Wilson seeks to use the South African case to offer a general critique—that truth commissions equate human rights with reconciliation and amnesty—it differs in key respects from the more than twenty truth commissions that have been instituted around the world. The South African TRC is the only one that had an amnesty provision; many truth commissions do not even have reconciliation as a goal.

The “legal foundations” of human rights that Wilson refers to are but one of the many institutional and normative foundations for human rights. In addition to prosecutions, there are other avenues through which a more complex notion of accountability for human rights can be pursued, including reparation programs, institutional reforms, or even other legal mechanisms such as civil suits. Situated in this expanded vision, truth commissions help us view human rights not narrowly and legalistically, but as one of many complementary means through which our aspirations for justice can be furthered.

Interestingly, even legal mechanisms such as the various international legal proceedings against Pinochet often have their greatest impact not in delivering proportionate punishment for wrongdoing but rather in their symbolic affirmation of the principle of accountability. Moreover, to the extent that there is a broader international trend in favor of legality, prosecutions, and punishment, it is all the more important that our vision of human rights not be limited to tribunals and courtrooms. Developments such as the International Criminal Court make powerful and laudable strides against impunity; however, we should see these institutions as productively complementing rather than substituting for local initiatives. This is a time of great creativity and potential in human rights struggles at the local and global level—and in the long run, it is that imaginative and institutional vitality that will further democratization.

 

The authors would like to acknowledge the valuable comments of their colleagues Mark Freeman, Pablo de Greiff, and Priscilla Hayner.

Read More: Human Rights, Reconciliation, Human Rights, South Africa

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