Ερευνητική Ομάδα Μελέτης «Κοινωνικά και Ανθρωπιστικά Ζητήματα»
Κωνσταντίνα Μαρία Πλατνάρη, 5 Ιανουαρίου 2018
Introduction
From 1948, the South African government implemented and enforced an institutionalized system of racial segregation, known as «apartheid.” The aim of apartheid was the separation of the races from each other, with whites dominating and granting more privileges than the other races. Acts were established to ensure the separation of races from areas of residing, working, traveling and recreational areas. The act of separation had then continued for the next 50 years, resulting in extreme damage to the economy as well as the nation. The extent of the damage caused by Apartheid was so extreme, that a calling for peace and reconciliation had to be made by the President Nelson Mandela. The call for reconciliation resulted in the formation of the Truth and Reconciliation Commission a court-like body intended to investigate human rights violations perpetrated during the apartheid regime. So it was set up for anybody who felt they had been a victim of violence or human rights abuse. These victims were allowed to come forward and be heard at the TRC and also privileged perpetrators, allowing them to also give testimony and request amnesty from prosecution.
Outline of the topic
This paper closely examines the South African transition case through restorative approach that is developing by Truth and Reconciliation Commission (TRC), which in the words of Stan and Nedelsky, was “unprecedented at the time of its founding, [its] expansive mandate and complex design provoked intense international interest and now marks a cornerstone in the debate over how to define the theory and practice of transitional justice”.
This work will be organized into four main chapters. Chapter 1 will present briefly historical background of the conflict of South Africa, specifically focused on the years 1990 to 1999, which marked a turning point as the country moved from an apartheid regime to a democracy before the TRC was established as part of this political transition. Chapter 2 will discuss the meanings of reconciliation, retributive justice and restorative justice as well as describe their main concepts and principles. Chapter 3 will examine the development of the TRC’s restorative approach and describe its structure and process. Chapter 4 will constitute an assessment of the strengths and weaknesses of South Africa’s truth and reconciliation process, as well as an evaluation of how restorative justice contributed to South Africa’s reconciliation process and what lessons can be drawn from it. This paper will end with a final conclusion.
Provisional Research Question
What is Restorative Justice how did it contribute to South Africa’s reconciliation process and what lessons can be drawn from it not only for South Africa but for justice as a whole?
Chapter 1
Apartheid literally can be translated as “the state of being apart” or “separateness”. It was an officially structured policy of racial segregation that was legislated after the electoral victory of the national party in 1948. However, of course, the prevalent nature of color prejudice and racial segregation were not unknown in the country before the introduction of apartheid to South Africa. The culture of separateness took its root from the colonial period when Dutch and British landed in the country. European colonizers have perceived the native of African people as savage, backward and uncivilized who need to be enlightened by white people. The white colonizers, out of their sense of racial superiority, constructed a racial hierarchy thus the black and white races remain detached from interaction in their daily lives due to the socially constructed racial animosity. Therefore, the historical relationship between the colonizers and colonized was the foundation of racial discrimination on which apartheid regime had constructed a biased political system to perpetuate and solidify the preexisting social cleavages. The political and legal foundation of racial discrimination under the Apartheid regime was kicked off with the implementation of Population Registration Act of 1950 that defines the racial groups of people and divides them on the basis of their race or the color of skin by issuing identity cards according to their belonging to a particular group. Under this act, four different racial groups were established that are commonly known as blacks (or Africans), whites, colored people and those of Indian origin.
The primary goal of the apartheid was to separate the blacks and whites completely and so South African black native people were denied the basic socio-economic and political rights and they were treated as “second class citizens” or “foreigners” within the pan-white dominated government and under its intolerable and discriminatory acts. This intense racism and social segregation that has affected the lives of the South African population in an unprecedented manner until the period of democratic transition in the country in which the Truth and Reconciliation Commission (TRC) played a decisive role. Established in 1995 by the new Government of National Unity TRC invited perpetrators of violence to speak about their past transgressions.
The question here is how does one begin to think in a historic way about democracy and the TRC? According to Colin James Bundy, a South African historian, “it is impossible to make much sense of the TRC unless one relates it to the political settlement arrived at between 1990 and 1993”.Indeed, the Commission, according to the latter author, cannot be described merely as a legal product of the political settlement, “but in a more fundamental sense a crucial element of that settlement”.
The unbanning of the liberation movements and opposition political parties in 1990 by Pres. F.W. de Klerk, the release from prison of Nelson Mandela, and the lifting of the state of emergency in South Africa paved the way for a negotiated peace settlement between the apartheid regime and those who fought against it and brought an end to the struggle against colonialism and apartheid that had lasted in South Africa for more than 300 years. The negotiations resulted in the establishment of a date for the country’s first democratic elections and for an interim constitution to be enacted. A major obstacle to finalizing the interim constitution was the question of accountability for those guilty of gross human rights violations during the years of apartheid. It became clear during the negotiations that many politicians and many in the security forces were not loyal to President de Klerk and posed a major threat to stability in the country. They demanded that President de Klerk issue them a blanket amnesty for past actions. The dominant view among the liberation movements at the time, however, was that there should be accountability for past crimes, along the lines of the Nurnberg trials.
Those negotiating for the apartheid regime insisted that a guarantee of general amnesty be written into the interim constitution. Without it, it is unlikely that the apartheid government would have given up power. The strength of the amnesty deal was that it was part of a package of initiatives contained in the interim constitution that set the country on the road to becoming a democratic, constitutional state. This included a strong and justiciable bill of rights. The terms of the amnesty were to be decided on by the country’s first democratically elected government once elected in 1994.
The Truth and Reconciliation Commission (TRC) was born of a spirit of public participation, as the new government solicited the opinions of South Africans and the international community regarding the issue of granting amnesty as well as the issue of accountability in respect to past violations and reparations for victims. Civil society, including human rights lawyers, the religious community, and victims, formed a coalition of more than 50 organizations that participated in a public dialogue on the merits of a truth commission. This consultative process lasted a year and culminated in the legislation, the Promotion of National Unity and Reconciliation Act 34 of 1995 (the Act), that established the TRC.
Chapter 2
The work of the TRC is commonly held to be congruent with restorative justice. But what is restorative justice and how was it working?
In the TRC process, apartheid perpetrators were offered conditional amnesty. They had to file an individual amnesty application and show that the gross violations of human rights for which they sought amnesty were politically motivated. Furthermore, they had to disclose the full truth about their violations, normally during public hearings.
Was justice sacrificed when the TRC offered conditional amnesty to perpetrators?
According to Desmond Tutu, the chairman of the TRC, the correct answer to this question is in the negative. In the foreword of the TRC Report, he explains that:
“Those who have cared about the future of our country have been worried that the amnesty provision might, amongst other things, encourage impunity because it seemed to sacrifice justice. We believe this view to be incorrect. The amnesty applicant has to admit responsibility for the act for which amnesty is being sought, thus dealing with the matter of impunity. Furthermore, apart from the most exceptional circumstances, the application is dealt with in a public hearing. The applicant must therefore make his admission in the full glare of publicity. Let us imagine what this means. Often this is the first time that an applicant’s family and community learn that an apparently decent man was, for instance, a callous torturer or a member of a ruthless death squad that assassinated many opponents of the previous regime. There is, therefore, a price to be paid.”
Though it was not cost-free for perpetrators to take part in the amnesty process, the TRC clearly did not offer retributive justice since it did not impose punishment on perpetrators. On the contrary, the TRC did, by means of amnesty, ensure that some perpetrators could not be punished for the human rights violations they had committed. If the TRC offered justice, then it must be another kind of justice which is not retributive in nature. Desmond Tutu explains that such a kind of justice exists, and that it is served when efforts are being made to work for healing, for forgiveness and for reconciliation.
“Retributive justice – in which an impersonal state hands down punishment with little consideration for victims and hardly any for perpetrators – is not the only form of justice. I contend that there is another kind of justice, restorative justice, which was characteristic of traditional African jurisprudence. Here the central concern is not retribution or punishment but, in the spirit of ‘Ubuntu’, the healing of breaches, the redressing of imbalances, the restoration of broken relationships.
‘Ubuntu’ is the idea that no one can be healthy when the community is sick.
‘Ubuntu’ says I am human only because you are human. If I undermine your humanity, I dehumanize myself.’ It characterizes justice as community restoration – the rebuilding of the community to include those harmed or for merely excluded.
This kind of justice seeks to rehabilitate both the victim and the perpetrator, who should be given the opportunity to be reintegrated into the community he or she has injured by his or her offence. This is a far more personal approach, which sees the offence as something that has happened to people and whose consequence is a rupture in relationships. Thus we should claim that justice, restorative justice, is being served when efforts are being made to work for healing, for forgiveness and for reconciliation.
Tony Marshall, during a recent conference on the subject, offered a workable description of restorative justice in practice that does seem to stand on its own:
‘Restorative justice is a process whereby all the parties with a stake in a particular offence come together to resolve collectively how to deal with the aftermath of the offence and its implications for the future. This description leaves open the questions of who is to be restored and to what they are to be restored. Braithwaite refers to this as a limitation in defining restorative justice. However, this ‘failure’ may actually result from the very strength of restorative justice. Restorative justice does not force a situation to fit the theory. Rather, as a theory, it is open and flexible enough to apply at various levels and contextual imperatives.
Braithwaite recognizes this in his replies to restorative justice’s two questions. To the “who question” he replies: ‘restorative justice is about restoring victims, restoring offenders and restoring communities.’ To the ”what question” he suggests: ‘whatever dimensions of restoration matter to the victims, offenders and communities affected by the crime. In this way, restorative justice is sensitive to context and thus appropriate to a variety of situations. A restorative justice approach, in his account, is not limited to the individual level (although this is where it is most common at present, i.e., juvenile justice) but can be applied to the institutional level (as in recent programs aimed at corporations and in the case of the
TRC).
Simply put, restorative justice is about addressing the harm against and the needs of both, victims and offenders in such a way that both parties, as well as the communities which they are part of, are healed.
Three principles
Although there are a number of definitions of restorative justice, they all contain the following three principles:
- Crime is seen as something that causes injuries to victims, offenders and communities. It is in the spirit of Ubuntu that the criminal justice process should seek the healing of breeches, the redressing of imbalances and the restoration of broken relationships.
- Not only government, but victims, offenders and their communities should be actively involved in the criminal justice process at the earliest point and to the maximum extent possible.
- In promoting justice, the government is responsible for preserving order and the community is responsible for establishing peace.
The Five R’s
Rev Don Misener has conceptualized “five R’s” that are central to restorative justice which, when considered together, connect the offender with those who have been offended and make the healing of the broken relationships possible to the degree that victims are prepared to forgive. These constitute the cost of restoration to an offender, and there is no shortcut. The five R’s are:
- Facing Reality: this is the first step on the road to freedom, and is where the cost of restoration begins.
- Accepting Responsibility: while facing reality acknowledges the truth of a situation, accepting responsibility goes a step further in recognizing that a personal response is required.
- Expressing Repentance: accepting personal responsibility for the consequences of one’s actions leads to an expression of repentance. This constitutes sorrow and sincere regret for the actions – a realization that the actions were wrongful and should not have occurred. The usual way in which this is done is by making an apology to the person who has been wronged, and by asking forgiveness from the supernatural being that the offender relates to.
- Knowing Reconciliation: being willing to face the full force of wrongfulness, and refusing to take refuge in excuses or rationalizations make it possible to know reconciliation with the person who has been wronged. While there is no guarantee that the person who has been wronged will be willing or able to offer reconciliation, full reconciliation is not possible if the wrongfulness has not been faced.
- Making Restitution: this is a practical way of facing the consequences of behavior. It is a way of demonstrating the credibility of the words that were expressed when making an apology and of expressing thankfulness for reconciliation.
Retributive justice
It has its roots in religious and theological ideas. There is a strong influence of viewing a criminal offence as ‘sin’ – as wrongdoing against the deity. In many religions, sin can only be atoned for through the suffering of the offender or a substitute. This is the origin of the retributive theory’s focus on punishment. The theory takes the primary aim of criminal punishment to be that of responding to the second and third concerns identified above. The point of punishment is to right the wrong done in the criminal offence. The offenders’ suffering or loss is what constitutes the ‘pay back’ to society and the victims. Despite many attempts to explain how the infliction of harm on offenders actually makes things right, retributive theorists have not offered a persuasive account. The theory simply blinds itself to the fact that the real injustice of an offence is the loss and harm suffered by the victims. This injustice is not addressed by the suffering of the offender – the loss is not restored, the suffering is not compensated, and the broken relationships with victims and society are not mended. The amount of harm in the world has in fact been increased, and the injustice remains.
The strength of the retributive theory lies in its view that offenders be treated as morally responsible members of society, not as instruments for deterring others and not as if they are ‘sick’ and irresponsible.
In contrast to these abstract responses, restorative justice holds that the way an offender ‘rights the wrong’ done to victims is by taking responsibility for the actual, material harm done to them. As was pointed out under the ‘Five R’s’ of restorative justice, this acceptance of responsibility and reconciliation become the pre-conditions to full restoration. There is no dichotomy of choosing mercy and forgiveness over justice; these elements become inherent in the very definition of justice
Retributive vs. Restorative Justice
This table illustrates the differences in the approach to justice between Retributive Justice and Restorative Justice.
| Retributive Justice | Restorative Justice |
| Crime is an act against the state, a violation of a law, an abstract idea | Crime is an act against another person and the community |
| The criminal justice system controls crime | Crime control lies primarily in the community |
| Offender accountability defined as taking punishment | Accountability defined as assuming responsibility and taking action to repair harm |
| Crime is an individual act with individual responsibility | Crime has both individual and social dimensions of responsibility |
| Punishment is effective:
Threats of punishment deter crime Punishment changes behavior |
Punishment alone is not effective in changing behavior and is disruptive to community harmony and good relationships |
| Victims are peripheral to the process | Victims are central to the process of resolving a crime. |
| The offender is defined by deficits | The offender is defined by capacity to make reparation |
| Focus on establishing blame or guilt, on the past (did he/she do it?) | Focus on the problem solving, on liabilities/obligations, on the future (what should be done?) |
| Emphasis on adversarial relationship | Emphasis on dialogue and negotiation |
| Imposition of pain to punish and deter/prevent | Restitution as a means of restoring both parties; goal of reconciliation/restoration |
| Community on sideline, represented abstractly by state | Community as facilitator in restorative process |
| Response focused on offender’s past behavior | Response focused on harmful consequences of offender’s behavior; emphasis is on the future |
| Dependence upon proxy professionals | Direct involvement by participants |
Chapter 3
The beginning of TRC
South Africa’s Truth and Reconciliation Commission is probably one of the most famous institutions charged with the task of dealing with the past and ensuring a just and peaceful transition to a stable society. After over four decades of apartheid and conflict to end racial oppression, South Africa’s liberation movement negotiated an agreement with state representatives that ended apartheid and transferred power to a democratically-elected transitional government under Nelson Mandela (who was President) with Frederik W. deKerk as Deputy President. The interim constitution of 1993 had deemed it necessary to build a bridge between the past and the future, to establish the truth about the past in order to prevent the occurrence of human rights violations in the future, as well as to promote ‘ubuntu’ in pursuit of national unity and reconciliation .
The TRC was established with the aim of achieving these goals. It was to investigate and draw “as complete a picture as possible of the nature, causes and extent” of the human rights violations committed during the period from 1960 to 1994, to grant amnesty to those who fully confessed to their roles in set violations, to offer victims “an opportunity to relate the violations they suffered,” to take measures aimed at granting reparations to victims as well as restoring their dignity, to produce a report about such violations and victims, and to make recommendations aimed at preventing them in the future (Promotion of National Unity and Reconciliation Act No. 34, 1995).
TRC Committees
The TRC has three committees dealing with human rights violations, amnesty, and reparations and rehabilitation.
Human Rights Violations Committee
The Human Rights Violations Committee had the express purpose of facilitating a truth recovery process. It was to do this by taking statements from survivors and families of victims of gross violations of human rights.
So-called representative and demonstrative cases were chosen from among the statements taken in order to be presented at public hearings. At these hearings, survivors and families of victims told how they had been victimized. More than 50 public hearings were held, spanning a total of 244 days for the so-called representative cases. The TRC Report states that it received more than 21,000 statements from individuals alleging that they were victims of human rights abuses and 7,124 from people requesting amnesty for acts they committed, authorized or failed to prevent. An estimated less than 10 per cent of the 21,000 statements taken were heard by the commissioners. The others were processed, and in each case either the TRC recommended whether the individual should receive reparations, and investigations were initiated.
By the end of the Commission’s lifespan, 21,000 people had come forward, women and men, old and young, and told the Commission about nearly 38,000 gross violations of human rights. In the process, the broad outlines of the past emerged with undeniable clarity. Ninety percent of those who came forward were black. Most of them were women. The greatest number of these approached the Commission on behalf of dead men to whom they were related.
Amnesty Committee
As part of its reconciliatory function, the TRC was made responsible for the granting of amnesty. The Amnesty Committee was put in charge of facilitating this process and heard perpetrators’ confessions and amnesty applications. Some of the conditions for the granting of amnesty were fixed and others were interpretative. In terms of fixed criteria, the offence for which amnesty was sought must have been committed between 1 March 1960 and 10 May 1994. In addition, the application had to be registered before 30 September 1997. The remainder of the criteria were largely open to the interpretation of the TRC Act by the Amnesty Committee.
Amnesty was to be granted where applicants made full disclosure of all relevant facts and only for acts ‘associated with a political objective committed in the course of the conflicts of the past’. The individual must not have been acting on his or her own, or for private gain, or through personal malice, ill-will or spite. Rather, individuals must have been members of a publicly-known political party or an employee of the state who ‘on reasonable grounds believed that he or she was acting in the course and scope of his or her express or implied authority’.
The TRC Act also considers the definition of a political objective. The motive, context, gravity of the act, whether the target was public or private, whether the applicant acted on orders, and whether the act was proportionate to the political goal had to be considered in conjunction with the other criteria (such as full disclosure). In effect, this means that amnesty is not automatic in South Africa. However, perpetrators of gross violations of human rights who met the TRC’s criteria for amnesty were to be immune from prosecution and all criminal and civil liability. If the criteria for amnesty were met the TRC would substitute or trade retributive justice in exchange for the truth. A total of 7,124 people applied for amnesty. Only ‘gross’ violations required a public hearing, yet the TRC fell desperately behind in processing these applications and was unlikely to finish before mid-1999.
The most important difference between the South African Commission and others was that it was the first to be given the power to grant amnesty to individual perpetrators. No other state had combined this quasi-judicial power with the investigative tasks of a truth-seeking body. More typically, where amnesty was introduced to protect perpetrators from being prosecuted for the crimes of the past, the provision was broad and unconditional, with no requirement for individual application or confession of particular crimes. The South African format had the advantage that it elicited detailed accounts from perpetrators and institutions, unlike commissions elsewhere which have received very little cooperation from those responsible for past abuses.
Another significant difference can be found in the Commission’s powers of subpoena, search and seizure, which are much stronger than those of other truth commissions. This has led to more thorough internal investigation and direct questioning of witnesses, including those who were implicated in violations and did not apply for amnesty. None of the Latin American commissions, for example, was granted the power to compel witnesses or perpetrators to come forward with evidence, and these commissions have had great difficulty in obtaining official written records from the government and the armed forces
Reparations and Rehabilitation Committee
The Reparations and Rehabilitations Committee was the only one of the three TRC committees not to hold public hearings. Rather, based on evidence presented to the TRC, it was, according to the TRC Act, to put forward recommendations for a comprehensive reparations policy for those found to be ‘victims’ of gross violations of human rights during the period that the TRC was investigating.
The government is responsible for implementing these recommendations and the reparations policy. Other recommendations aimed at preventing the recurrence of abuses were also to be legislated for in the TRC’s final report. It was intended that the information made available through the TRC process would assist in providing an undisputed historical record and thorough documentation of violations. This, in theory, would enable the learning of lessons from the past and prevent violations occurring again. At the end of its full term of office in October 1998 the TRC submitted its findings to Parliament.
Chapter 4
The TRC has been criticized and praised on many accounts. One major criticism is that it failed to condemn apartheid law and its leaders. In her article “Evaluating the Truth and Reconciliation Commission,” Elizabeth Stanley argues that by “placing amnesty of violations as a carrot to perpetrators in exchange for a full story, with the stick of prosecutions for those who did not come forward,” disclosure of the past took precedence over justice. Furthermore the failure to prosecute perpetrators of human rights violations has “contributed to a climate of impunity for officers in the fight against crime,” causing problems for civil society. The latter is undoubtedly a major problem that needs to be dealt with. There are however various explanations that justify the TRC’s lack of judgment of apartheid as a system.
Leebaw asserts that although the TRC hoped to condemn apartheid as a system, it chose to depoliticize past crimes in order to facilitate the political and social transition from the old system to the new. Similarly Allais maintains that given the transitional context, internal tensions, fragilities, the high cost of prosecutions as well as the “difficulty of obtaining evidence,” overriding justice “in order to promote overall welfare,” was a reasonable compromise. Despite the fact that “perpetrators were not punished, the public and individual nature of the amnesties meant that the process upheld the idea of individual accountability”. Moreover, because of its process, the TRC’s “allocation of responsibility and its condemnation were not limited to those who came before it as amnesty applicants, and meant that it could in fact have a wider condemnation of wrongdoing than a process which had been oriented only to specific prosecutions would have had”. Therefore, Allais rightly points out that the TRC was not a compromise with justice, but rather the expression of a different kind of justice, one that was not intended to be retributive but restorative. In this sense, justice – as understood by retributivists – sometimes had to be sacrificed for the pursuit of other goals, such as peace, stability, healing and the restoration of relationships.
Another major criticism of the TRC is that it failed to give victims adequate reparations. Stanley claims that in spite of the TRC’s promise of reparations, it was not as “successful as ‘victims,’ Commissioners and some governmental officials had hoped.” Allais notes that “at the time of the process, victims walked away with nothing (while perpetrators of horrific crimes could appear before the TRC and be immediately granted amnesty), and had to wait for the long process of the TRC report being concluded and recommendations being made to parliament.” Moreover, when the TRC made its recommendations, “parliament dramatically reduced the amount that victims would be paid” .Allan and Allan note another problem in regard to reparations, namely that “amnesty seekers did not have to make any form of restitution (not even symbolic),” and that as the burden of reparations falls on the state and thus society, the contribution of individual perpetrators would be indirect at most. Nevertheless, many perpetrators did have to publicly take responsibility for their actions and many showed remorse. Furthermore, reparations – however unsubstantial – can be considered an important symbolic gesture. Therefore, “rather than talking about them in light of victims’ needs,” perhaps one should view them as gestures of acknowledgement and validation of victims’ suffering.
One of the TRC’s biggest accomplishments was that it was able to facilitate a story-telling process, which uncovered a large part of the truth about the past. The number of perpetrators who applied for amnesty reached 7,128 and 21,298 people made use of the process and came forward to give their testimony. Allais notes that during apartheid many white South Africans were not aware of victims’ suffering, and that the process of allowing victims to tell their stories and recoding these stories “was an important counter to this previous denial.” Moreover, the story-telling process allowed not only victims but also perpetrators to relate their stories and experiences. As argued by Leebaw, by remembering the “causes and consequences of systematic injustices, truth commissions may underscore the limits of what passes for justice in the context of transition and provide a basis for pursuing ongoing reforms,” yet at the same time through “gestures of remorse, forgiveness, and reparation, truth commissions may illuminate possibilities for future political relationships that are not readily apparent during the transition.”
Another strength of the TRC is that through its transparent and democratic activities as well as its investigation of human rights abuses committed on both sides of the conflict, it contributed to the establishment of a culture of human rights. Allan and Allan maintain that the TRC was also “relatively successful as a therapeutic tool because the enabling legislation emphasized truth, reconciliation, stability, and restorative justice.”
Evaluating the Role of Restorative Justice in South Africa’s Reconciliation Process
Reconciliation, as defined by Lederach represents a place, a «point of encounter” that promotes «open expression of the painful past on the one hand and the search for the articulation of a long-term, interdependent future on the other hand,” a place where concerns about the past are validated and let go «in favor of renewed relationship.” Reconciliation also recognizes the need to redress the wrongs that were done and at the same time promotes the idea of a «common, connected future». Based on the previous assessment of the strengths and weaknesses of South Africa’s truth and reconciliation process, it can be said that Lederach’s first two aspects of reconciliation were – at least to some extent – met. The TRC’s choice of a restorative justice process allowed victims and perpetrators to encounter one another in a peaceful manner, openly relate their experiences of the past, and have their concerns validated. Thus, it can be said that the TRC’s decision to use a restorative justice approach enabled it to fulfill the interim government’s goals of building a bridge between the past and the future, establishing the truth about the past in order to prevent the occurrence from human rights violations in the future, and promoting ubuntu in pursuit of national unity and reconciliation.
As to redressing the wrongs that were done, it can be argued that this goal was sacrificed in order to “achieve the overriding aims of nation-building (albeit that a necessary goal for any new administration wanting to secure a peaceful and democratic future)”. Given the transitional context, the lack of institutional and social structures to sustain retroactive prosecutions, as well as the scale and political nature of the crimes committed, the ANC chose to grant amnesty to perpetrators as a way to facilitate democratic change and investigate the truth. Thus, it can be argued that restorative justice was used as a tool to forego the difficulties of implementing a retributive form of justice and facilitate political change. Whether or not the aims of restorative justice to identify obligations as well as to meet the needs of everyone involved and promote reconciliation and healing remains highly contested. According to Allais, the TRC can be viewed as an innovative response to a situation in which condemning wrongdoing and defending the legal order were important, but almost impossible to achieve by means of normal legal procedures.
It is not always possible to punish wrongdoers, nor is it necessarily always the best option. Drawing on the example of South Africa’s truth and reconciliation process, it can be said that restorative justice can provide a valid alternative to retributive processes. However, as argued by Clamp and Doak, given the “problematic nature of thinking about restorative justice within transitional contexts,” it is important to exercise caution “in how the ‘restorative’ label is employed in relation to transitional societies.” Daniel W. Van Ness and Karen Heetderks Strong maintain that four elements of restorative justice are appropriate for empirical investigation: “encounter, reparation, reintegration and participation.” Encounter and participation relate to processes, while reparation and reintegration relate to outcomes. Clamp and Doak argue that although these elements “might provide a useful framework for analysis, they do not expressly take account of the multi-faceted nature of civil conflict.” The authors suggest evaluating values “on the basis of their responsiveness to the needs of stakeholders, how democratic the process is, and finally, the legitimacy of the process in terms of truth and justice”. In other words, such “values rather than processes or outcomes” should be used to assess the “extent to which transitional justice mechanisms might legitimately claim to be upholding restorative principles”. Furthermore, one should keep in mind that each post-conflict case is different, and that just because one method might work in one transitional society does not mean that it can be applied exactly the same way elsewhere. It is important that restorative justice theorists develop evaluation tools which are “both precise enough and flexible enough to be used as yardsticks to measure the degree to which restorative justice is actually taking place in practice, irrespective of the preferred labels that might [be] adopted by those leading or overseeing the peacebuilding process”.
Conclusion
In retrospect, the TRC was no panacea for all of South Africa’s problems, and reconciliation may not be as deep-seated as some have suggested. The reparations process was neither particularly generous to victims nor efficiently administered. The family of Steve Biko famously criticized the TRC for failing to bring his killers to justice. Yet the TRC seeking to provide a clear picture of the past, to promote reintegration and reconciliation, to establish a human rights culture, as well as to facilitate a peaceful political transition emphasis on amnesty developed «restorative» justice (rather than «retributive» justice) that was a product of the political compromise between the ANC and the National Party and of South Africa’s need for political stability and due legal process. Despite its shortcomings, the TRC helped reveal the worst excesses of apartheid and achieved a good measure of social reconciliation; its lessons to the world for conflict resolution were profound. The entire process had a cathartic, healing effect that enabled the country to transcend the violence and acrimony of the apartheid years.
In conclusion it can be said that restorative justice is a useful approach that can complement and even replace traditional retributive approaches. However, its theory and application must be further developed in order for it to gain strength as an approach to post-conflict reconciliation processes in transitional societies.
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- Google Docs. (2018). Legitimization or judgement.pdf. [online] Available at: https://drive.google.com/file/d/1jxBHstEBG-tvjqmqcpajdEDVqlw1xv6c/view.
- Google Docs. (2018). Restorative Justice.pdf. [online] Available at: https://drive.google.com/file/d/16SC85gEmZWv8p6ctaTcxY5WlgbKgnMRP/view
- HuffPost. (2018). South Africa’s Truth and Reconciliation Commission. [online] Available at: https://www.huffingtonpost.com/adst/south-africas-truth-and-r_b_8581506.html.
- Encyclopedia Britannica. (2018). Truth and Reconciliation Commission, South Africa | South African history. [online] Available at: https://www.britannica.com/topic/Truth-and-Reconciliation-Commission-South-Africa.
- Cscsb.org. (2018). Retributive vs. Restorative Justice. [online] Available at: http://www.cscsb.org/restorative_justice/retribution_vs_restoration.html.
- Overcomingapartheid.msu.edu. (2018). South Africa: Overcoming Apartheid. [online] Available at: http://overcomingapartheid.msu.edu/unit.php?id=65-24E-3&page=2.
- Public Radio International. (2018). South Africa’s imperfect progress, 20 years after the Truth & Reconciliation Commission. [online] Available at: https://www.pri.org/stories/2017-04-06/south-africas-imperfect-progress-20-years-after-truth-reconciliation-commission.
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