THE COLLEGES OF LAW BLOG

Identity in Context: Examining South Africa’s Truth and Reconciliation Commission

Rod Tuazon is a real estate broker in California and holds a J.D. from the Colleges of Law, an M.B.A. from Regis University, and a B.S. from the University of Santo Tomas. His goal is to become an advocate for those who are unable to navigate the legal system and defend their rights and to encourage increased participation in future study abroad programs at the Colleges of Law. 

There are many stories and humbling experiences to share in describing my educational trip to the country. One of them was our visit to the Apartheid Museum where it reminded me of the Truth and Reconciliation Commission (TRC). Was it perhaps inevitable that truth could have been traded for justice?

 

History of the TRC

Instituted by Nelson Mandela and chaired by Desmond Tutu, TRC was a massive exploration into South Africa’s human rights abuses between 1960 and 1994. 

Many regarded TRC as a “model of effective conflict resolution.” In order to implement “restorative justice”, South Africa’s primary goal in rebuilding and unifying a scarred nation was to “restore broken relationships with healing, harmony, and reconciliation.” This includes providing a platform for the oppressed and their oppressors to share their experiences during Apartheid. 

TRC offered amnesty to “849 out of 7,112 applicants who gave full disclosures of atrocities they committed and recommended long term reparations and short-term relief payments to victims.”

 

Facing the Truth

The transparent facilitation of the healing process through storytelling is likely TRC’s biggest accomplishment. The horrors of apartheid have been made visible and audible as a large part of the truth about the past has been uncovered. The process did not only reveal human rights abuses committed at both sides of the conflict, but it also was a healing tool to relate stories and experiences in addressing acts of remorse, forgiveness, and reparation. 

People implemented the sharing process in various ways, but the results remained constant. It was simply about the South African people making peace with their lives, inspired by aspirational goals to forgive and forget.  

 

Missed Chances

TRC’s likely biggest failure is its lack of involvement in addressing social and economic transformation.

The commission members were given the power to grant amnesty, but not the power to implement reparations. Instead, the government established the Reconstruction and Development Program (RDP) to address the mobilization of South Africa’s socioeconomic policies.  

However, progress has been slow. The disparity between policy and actual implementation continues to immobilize the restoration of land equality. Whites continue to own the majority of resources, while most black people live in densely populated areas with inadequate access to basic infrastructure and resources.

TRC has made past violators of rights accountable to an extent, but it failed to give victims adequate reparations. It chose to humanize past crimes in order to facilitate the political and social transition to rebuild a nation. Accountability came in the form of public acknowledgment of wrongdoings by perpetrators, increased information about the truth, and the ability of victims to listen.  

TRC has achieved a national level of recognizing unity and healing in a restorative way, but it failed to adequately address restoration for individual victims in a retributive way.

 

The Missing “J” in TRC

Human rights abuses of apartheid included forced relocations, segregation, exclusion from politics, and deprivation of citizenship. TRC’s decision to use a restorative justice approach fulfilled the government’s goals of bridging the past and the future, as well as establishing the truth in order to prevent human rights violations from happening again. But it sacrificed redressing the wrongs in order to achieve national cohesion and unity through a peaceful and democratic process.

Some South Africans felt a sense of betrayal because politicians responsible for the atrocities were left scot-free. They believe TRC failed to condemn apartheid law and its leaders.  F.W. de Klerk, South Africa’s president during apartheid, testified of his ignorance. The commission knew his claim was false, yet did nothing to hold him accountable for his actions. 

Leaders and politicians apologized for the acts of the past, but have not taken full responsibility, nor fully acknowledged their complicity in developing the apartheid system and the impact it created for all South Africans, regardless of race or color.

This perhaps is the justice that South Africans felt TRC failed to address—not just a symbolic one, but retribution or reparation to those responsible for the injustices they created and encouraged.  

What could have been the impact had South Africa implemented a mix of both restorative and retributive justice systems in addressing both perpetrators and victims of apartheid? 

 

TRC’s Achievements

There are many people who claim that TRC had accomplished what it was intended to do.  It became a model of a reconciliation system because it projected the human aspect of peace and healing.

From outside looking in, it was such a perfect model. But there wasn’t any credible study, both qualitative and quantitative data, to gauge TRC’s effectiveness or validate any claim of success or failure. 

The TRC process ruled out formal justice through the courts in favor of restorative justice. This approach emphasized accountability at some level, rather than punishment.

At a national level, TRC’s restorative process offered a chance to learn from the past while contributing to peace and stability.  

On an individual level, TRC made it possible for perpetrators and victims to coexist and to be reintegrated into one community. But this only worked where victims felt that the perpetrators have taken responsibility for their actions and made some form of restitution.  

If TRC is defined in terms of restorative justice, then this form of justice becomes the yardstick by which to assess TRC’s performance. However, a benchmark that would also assess its failure to implement a form of retributive justice must also be accounted for.

 

South African Identity After TRC

There is no doubt that TRC’s “restorative justice” efforts moved South Africans closer together, but they continue to struggle to find a cohesive identity.  

TRC’s process of reconciliation began with such great hope in integrating black and white communities. However, it seems that the nation is now struggling to move past the image of its deeply divided past. 

Apartheid was a massive distribution of wealth to the white minority. Today, its legacy is a society that is more deeply divided between the rich white minority and the poor black majority. Whites still control a majority of land and businesses. Most black households earn barely a portion of white income. Poor quality of education in public and elementary schools impedes many black youths to continue advancing to college.  As hope for a full integration remains stagnant and unsettled, confusion of South Africans’ identity formation continues to emerge.

The U.S. can learn a great deal from how South Africa addressed racial issues post-apartheid. But while TRC began the healing process, it was just that: a start. To complete the process, South Africa must directly address the socioeconomic legacy of apartheid.