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Dealing with the Past

Repairing the Irreparable: Dealing with double-binds of making reparations for crimes of the past

By Brandon Hamber

Paper presented at the African Studies Association of the UK Biennial Conference "Comparisons and Transitions" at SOAS, University of London, London, 14-16 September 1998

 


Revenge is commonly regarded as a low and unworthy emotion, and because it is regarded as such, its deep moral hold on people is rarely understood. But revenge - morally considered - is a desire to keep faith with the dead, to honour their memory by taking their cause where they left off. Revenge keeps faith between generations; the violence it engenders is a ritual form of respect for the communty's dead - therein lies its legitimacy (Ignatieff, 1998, p. 188)

The least well publicised of the three Truth and Reconciliation Commission Committees is the Reparations and Rehabilitations Committee (R+R Committee). Unlike the Amnesty Committee and the Human Rights Violations Committee it does not hold public hearings for either perpetrators or victims. Based on the findings of the other two Committees, this strictly working Committee, is mandated to design a proposal of how best to assist those 'found to be victims', i.e. the direct survivors and/or family member and/or dependent of someone who has suffered a politically motivated gross violation of human rights associated with a killing, an abduction, torture or severe ill-treatment. The R+R Committee is obligated to make recommendations to reparate these 'victims' for the damages they have undergone in the conflicts of the past.

According the National Unity and Reconciliation Act (Section 40-f) the TRC will have to make recommendations to the President with regard to:

the policy which should be followed or measures which should be taken with regard to the granting of reparation to victims or the taking of other measures aimed at rehabilitating and restoring the human and civil dignity of victims

This policy will be tabled in the final report of the TRC. The policy can recommend any reparation measures in the form of compensation, an ex gratia payment, restitution, rehabilitation or recognition. It is the President and Parliament that will decide how, or if, the policy will be implementedi.

For the R+R Committee, drafting the reparations policy has been no small endeavour. A number of vexing questions have existed from the outset. For example, who will qualify for reparations? Should reparation be monetary or symbolic, or both? Is the state obligated to pay compensation because an individual is denied access to a civil claim when amnesty is granted to the perpetrator? Should such reparations be granted specifically to individuals, or should the process be collective, or both? Does the government have the funds for any of these approaches? Should there be a means test to assess to what degree survivors have been psychologically and physically 'damaged'? Should the extent and type of reparation be based on this means test and a system of prioritisation relative to the degree of suffering?

The TRC has attempted to answer some of these questions in its first draft proposalsii. In these proposals the TRC argues for an approach that does not utilise a means test. This was dismissed due to cost, and the resources necessary for grading the psychological and physical injuries of the some 20 000 victims. The proposal argues for relatively equitable grants for each person 'found to be a victim'. It also incorporates a call for a range of other reparation strategies. These include the need for symbolic reparations (e.g. erecting headstones, the building of memorials, etc.), legal and administrative interventions (e.g. expunging criminal records, the issuing of declarations of death, etc.), community rehabilitations (e.g. programmes for better access to health, etc.) and institutional reforms geared toward the judiciary, security forces, correctional services and so on.

In line with the demands of the Promotion of National Unity and Reconciliation Act, the TRC also has to consider urgent interim reparations. Practically the R+R Committee has proposed that the financial component of reparation is distributed in two phases.

First, those found to be victims will be given an urgent (sic) once off payment ranging from a baseline of R2000 up to R6000 in exceptional circumstancesiii. After this initial grant, a longer-term strategy of payment is proposed by the TRC. If the government accepts this proposal it would mean the government will be paying out approximately 3 billion Rand to some 15 000 to 20 000 survivors. This would work out to roughly R17 000 to R 24 000 per victimiv for each year over a six year period, i.e. R500 million per year. To date R600 million, to be spread over the next three years, has been allocated by the Department of Finance for reparationsv. At the time of writing, urgent payments were about to be delivered, but whether the proposal for longer term payments is going to be accepted by the government is still under discussion

 

The Purpose of Reparations

Psychologically speaking the so-called symbolical acts of reparation such as reburials, and material acts of reparation such as payments, serve the same end. Both these forms of reparation can, although not necessarily, play an important role in any process of healing, bereavement and addressing trauma. They can symbolically acknowledge and recognise the individual's suffering. These symbolic representations of the trauma, particularly if the symbols are personalised, can help concretise a traumatic event, aid an individual to come to terms with it and help label responsibility. The latter being important because labelling responsibility can appropriately redirect blame toward those truly responsible and relieve the guilt that survivors themselves often feel.

Reparations, symbolic or otherwise, can also serve as focal points in the grieving process, this can aid recovery by allowing individuals to focus exclusively on their grief. Symbols, and even money in some instances, can also symbolically mark the point of moving onto a new phase and symbolise an individual's mastery over the past. On a macro level extensive social processes like the TRC can also represent a societal willingness to deal with and part from the past.

Unfortunately, no matter how well meaning, all reparations strategies face the same, albeit obvious, intractable problem. Acknowledgement, apology, recognition and even substantial material assistance can never bring back the dead or be guaranteed to converge with, and ameliorate, all the levels of psychological pain suffered by a survivor. Unfortunately, the understandable amounts of distress, hurt, injustice and anger the survivor is personally struggling to come to terms with is immeasurable. This is compounded in South Africa by watching some of the perpetrators confess and then walk free.

Thus, the unfortunate reality is that reparation is a double-edged sword - symbolic acknowledgement and monetary compensation can be useful, but they can never wholly meet all the psychological needs of the survivors. The result is that in South Africa, we will have to continue to live with the reparations issue for a long time.

Dealing with the Difficulties of Granting Reparations

The intrinsic difficulties of trying to make amends for past crimes have been pointed out. The question is, can anything be done about these seemingly intractable problems? Some suggestions are made below.

  • Reparation and truth recovery need to be linked

On a purely psychological level, for a survivor to react in an overly forgiving way toward perpetrators, or to simply let 'bygones be bygones' is highly improbable in the short-term. The TRC has been a catalyst for successful resolution of this kind in some cases. However, for the most part when reparations are granted, the survivor will not be ready to put the past behind them at that specific point. It is critical that victims are not expected, either implicitly or explicitly, to forgive the perpetrators or forget about the past because some form of reparation has been made. When reparations are granted before the survivor is psychologically ready any form of reparation can be expected to leave the survivor feeling dissatisfied. When survivors or families of victims talk of reparations as a form of 'blood money' (as some do in Chile, Brazil, Argentina and Northern Ireland), this is because the national process of 'moving forward and making amends' is not coinciding with the individual process.

This is particularly the case when survivors feel that reparations are being used to buy their silence in the absence of the truth. Reparations and the truth recovery must be linked, because without this link any form of reparation runs the danger of been seen by the survivors as a governmental strategy to close the chapter on the past prematurely and leave the secrets of the past hidden. Given that the full truth for each individual has not been revealed by the South African TRC, anger and other emotional responses (e.g. refusing to accept reparation or protesting about what is granted) from victims can be anticipated.

 

  • Survivors feelings must be legitimised and investigations continued

For any reparations programme to be successful ongoing space has to be provided for survivors to express their feelings of sadness and rage as they struggle to come to terms with the psychological and emotional impact of their loss - a loss that reparation can only nominally acknowledge. Genuine reparation, and the process of healing, does not occur through the delivery of an object (e.g. a pension, a monument, etc.), but through the process that takes place around the object. It is how the individual processes the symbolic meaning of reparation that is critical. For this reason, making space for the complaints and opposition of survivors, should be seen as an integral component of any reparations programme. These spaces can take the form of private spaces (e.g. counselling, traditional mechanisms for story-telling and sharing, etc.) and the ongoing use of public space (e.g. media, exhibitions, etc.).

In addition, as was noted earlier, it is problematic to expect someone to come to terms with an event (even if substantial reparation has been granted) if they do not know the full facts of the event or at least feel satisfied with the incomplete truth. Thus, continuing investigations after the life of the TRC through the establishment of a permanent office of investigation into past crimes, and the prosecution of those who did not apply for amnesty, needs to be seriously considered. In the cases where the truth may never be known (and there will be many), the best we can do is to set-up sufficient support structures (e.g. community based self-help groups, counselling, advice centres, traditional healing services and so on) to help individuals personally come to terms with their uncomfortable reality. This is a highly personalised process in which rituals, symbolic acts and reparations have a place, but it is unlikely that reparations alone, no matter how substantial, will completely appease the individual in the short term.

 

  • The limits of financial reparation need to be appreciated

Over the last few years the TRC has shifted considerably in its thinking with regard to granting financial reparation to survivors. Initially the TRC was reluctant to suggest any form of financial reparation and spoke more of the need for collective and symbolic reparation. In fact, in the first year of the Commission, Commissioners often said that in the National Unity and Reconciliation Act the word reparations and not compensations had been used because the latter implied financial pay-outs which were going to be unlikely as reparations would probably be more collective and symbolic. These statements were made despite the fact that the National Unity and Reconciliation Act explicitly says that reparations can include compensation and/or ex gratia payments.

The shift to a more monetary based reparation system is attributable to several main factors. Firstly, despite the failure of the Azapo Constitutional Court challenge against the amnesty provisionsvi, the case did help highlight that victims are denied civil claims when amnesty is granted. Secondly, once the granting of amnesties had begun, faced with its consequences head-on, a greater number of survivors began to express opposition to the process. This enforced the perception that the 'perpetrators' were getting more out of the TRC than 'victims', thus creating a negative picture of the TRC and exposing its inherent moral dilemmas. As a result, the TRC had to be seen to be taking so-called concrete steps to be assisting victims or survivors. It is arguable, that adding a material component to the reparation proposal was the easiest option for the TRC to operationalise and the one with the greatest potential to show measurable results.

But to what degree is a financial reparation approach to reparations a more concrete step than the so-called symbolic types of reparation?

Unfortunately material reparations, as was stated earlier, serve the same psychological end as symbolic acts. Nonetheless, financial reparations are often mistakenly viewed as, and spoken about by policy-makers and victims alike, as form of concrete assistance that is different (and certainly more substantial) than symbolic acts such as the erection of tombstones or the naming of streets after the dead. However, the reality is that seldom will the sums of money granted ever equal the actual amount of money lost over the years when a breadwinner is killed, and it is questionable whether the material reparations granted will dramatically change the life of the recipients. In essence, material reparation is merely another form of symbolic reparation, albeit particularly welcomed by the majority of destitute victims who are living in conditions were any amount of money will help.

However, in South Africa, because the level of impoverishment is extreme, we need to be wary of reading too much into survivors' acceptance of material reparation. It is a certainty, given the level of impoverishment, that for many survivors the idea of receiving any money, no matter how minimal, will be seen as beneficial and the favoured strategy for reparation in the short-term. At the beginning of 1998 the Centre for the Study of Violence and Reconciliation ran three workshops focusing on reparations with a number of survivors from the Khulumani Victim Support Groupvii. In the workshops those who had made statements to the TRC were asked what they thought of potentially receiving approximately R17000-R24000 per year over the next six years. Those who participated in the workshops were very supportive of receiving such payments (Centre for the Study of Violence and Reconciliation & The Khulumani Support Group, 1998).

This obviously provides some support for the TRC's current financial reparation proposal, but it is important to read the survivors' non-critical approach to the draft material assistance policy with caution. First, the workshops only represented a section of the victim community. Second, most people in the workshops were extremely poor and felt that any amount of money would be useful in their current position. They had little knowledge of how to compare the amounts suggested with what they may have received through a civil claim. However, they were aware that the suggested reparation amounts would have an impact on their current lifestyle given that presently most of them were receiving very little, or no, income whatsoever.

Therefore, policy-makers and those in government responsible for implementing the reparations policy, need to be acutely aware that within the South African context, survivors are compelled to place the pragmatic need of short-term limited payment before any long-term or symbolic reparation. Survivors desperate need for money can also stifle their criticisms of the reparations proposal for fear that they may receive less money or no money if they are publicly vocal. In this context, survivors silence about the reparations proposal should be more concerning than their opposition.

In practice this may mean that initially many survivors may appear to be satisfied with the financial reparations of the TRC despite the minimal amount paid out. Without fail some survivors will become increasingly dissatisfied as time passes and the psychological impact of the their loss remains unresolved and the minimal financial impact of the reparation starts to dwindle over the years. Their complaints may only surface belatedly. The result of this, especially when their criticisms emerge a few years later, will most predictably be a dismissive attitude from the government (and much of the population) who will feel, unlike the survivors, that the issue has been adequately addressed by the monies granted in the past.

 

  • Reparations need to be visible, directed and individualised

The TRC, and its mandate, has throughout its process been criticised for defining the concept of victims too narrowlyviii, i.e. restricting its focus to only the 'victims' of the so-called gross violations of killing, abduction, torture or severe ill-treatment. The reality is that the majority of victims or survivors who appear before the TRC are victimised not only because of their political affiliation and activities, but because of their structural circumstances including their gender, poverty, race and general social marginalisation (Hamber, 1998).

However, the TRC has largely stuck to its mandate that focused on the so-called gross violations, held a limited number of hearings on the sectors of the society (e.g. judiciary, business and health sectors, etc.) broadly complicit in human rights violations and have argued that they will paint the broader context of 'apartheid' in their final report - but in developing the reparations proposal it has been difficult for the TRC to escape the fact that the violations of the past have included both physical and psychological violence, as well as substantial structural material oppression.

The TRC has, to some degree, tried to deal with both these types of violations in its initial proposals, but clearly making reparations for extensive and widespread abuse is unrealisable no matter the contents of their policy. In an attempt to deal with the socio-economic violations of 'apartheid' it is often proposed (especially by the government) that the wider previously oppressed community should also benefit from reparations and not only individuals. This is a similar view to what is expressed in the Constitutional Court judgement that upheld the granting of amnesty as constitutionalix. However, the judgement makes it clear that because perpetrators will be granted amnesty those found to be victims are entitled to "individually nuanced" reparations. Nonetheless, the judgement makes an important rejoinder to this argument, i.e. the state can take into consideration the available resources, the claims of all the victims and the competing demands of the government when deciding what reparation policies to implement.

This makes pragmatic sense, but runs the danger of allowing the government to argue for so-called broader reparations (e.g. community development, social upliftment, etc.) in lieu of individual reparations. Unfortunately collective reparation strategies can be expected to have a limited impact on the individuals who suffered the brunt of the direct brutality of apartheid violence. At an individual level it will not work to substitute social reconstruction for individual reparation. Firstly, for most people in South Africa, the upgrading of their communities is considered a right and is expected anyway. Secondly, for reparation to be psychologically restorative it has to be personalised. Although the broader system may have been responsible for creating a context conducive to human rights violations, and the system itself may have caused additional social violations, individuals primarily experience violence through their own personal universe. Although socio-economic development is necessary, but the physical and psychological impact of violence has to be addressed directly and individually if we are ever to deal with the traumas of the past and prevent cycles of revenge emerging.

Collective reparation (e.g. providing better access to health care, etc.) has its place, but this form of reparation should take place in addition to, and not to the exclusion of, individualised reparation. Furthermore, if collective reparations are undertaken, they need to be clearly labelled as part of the reparation strategy and also targeted at specific violations if they are to have any efficacy. For example, as part of the reparations strategy, the government could publicly justify (and perhaps debate) that on a road building project a community that has suffered a large-scale massacre in the past will be prioritised over another.

In conclusion, making amends for past violations can be expected to stay with the country for many years, if not decades. It is not an issue that will simply vanish with time or when reparations are granted. Although reparations may well be necessary on an individual level, they will never be sufficient because resolution depends on how the individual personally works through traumas of the past. Reparations, both material and the so-called symbolic, are useful markers in this process. Government strategies like truth commissions can help to open the door for the possibility of the individual and the country to begin the process of working through a violent and conflicted history. Socio-economic development will help ease this process considerably.

However, to effectively deal with the impact of large-scale political violence we need to fully comprehend its impact on individuals. We need to respect the feelings intrinsic to why individuals find the process of moving forward after suffering substantial loss and trauma so difficult. At the time of significant loss most people enter into a number of invisible pacts with themselves. Sometimes this can be a vow to avenge the death of a loved one, or as is most often the case, the individual will vow that nothing will ever replace what has been lost. Thus passively accepting reparation can be experienced by the survivor as a disrespectful act that betrays the loss they have endured or the memory of those killed. In essence, the rituals of respect and memory associated with death and trauma have been broken. This process can only be eased by accepting the feelings (and opposition) of survivors as legitimate and making space for them to work through their individual experiences of the conflicts of the past; and through continually (and perhaps endlessly) trying to make substantial and personalised symbolic, material and collective reparations. It is only these actions that can hopefully one day be sufficient to make survivors feel at ease with their guilt of accepting reparation as a symbolic replacement for what has been lost.

 


Endnotes

i For more detail on the full mandate of the R+R Committee see the full text of the Promotion of National Unity and Reconciliation Act, No. 34 of 1995 at http://www.truth.org.za/legal/act9534.htm. There were also several amendments to the Act to ensure extensions of the amnesty cut-off dates and the life of the TRC and the ongoing work of the Amnesty Committee. For more detail on this see the Promotion of National Unity and Reconciliation Amendment Act, No. 87 of 1995 at http://www.truth.org.za/legal/act9587.htm; and Promotion of National Unity and Reconciliation Amendment Act, No. 18 of 1997: http://www.truth.org.za/legal/act9718.htm; and Promotion of National Unity and Reconciliation Second Amendment Act, No. 84 of 1997 at http://www.truth.org.za/legal/act9784.htm.

ii See A Summary of the Reparation and Rehabilitation Proposal published by the South African Truth and Reconciliation Commission, 1998. Also see Government Gazette No. 1654, vol. 394, No. 18822 which outlines provisions for Urgent Interim Reparation. Information on proposed reparations and compensations (although not accepted) were published by the TRC in their proposed Rehabilitation and Reparation Policies Document on the 9/9/1997. Summaries of this were also reported in the newspaper, see "For Apartheid Pain TRC Calls for Payouts to Victims of Abuses" at http://www.africanews.org/south/southafrica/stories/19971023_feat5.html

iii The grants may vary as the TRC has factored in variance related to the number of people living in the 'victims' house or whether the survivor or family member of a victim lives in a rural or urban area.

iv This would, based on current exchange rates, be the rough equivalent of British 1700 - 2400 per year. However, it should be noted that direct currency translations probably do not match to the spending power of Rands in South Africa. The average annual household income in South Africa can provide some relative way of assessing the possible impact of the suggested amounts for material reparation. In 1995, average annual household income was R23 000, R32 000, R71 000 and R103 000 for African, "coloured", Indian and white headed households respectively. This would mean the suggested amounts of material reparations may effectively double the average household income (albeit this very low) of those 'found to be victims' in the poorest race group of the South African population. Source: The South African Central Statistical Services at http://www.css.gov.za/wwwsrch/ies/section2.htm#Average annual household income in 1995 by race.

v See "Interview with Wendy Orr" at http://www.truth.org.za/reading/talk2/n04.htm and "For Apartheid Pain TRC Calls for Payouts to Victims of Abuses" http://www.africanews.org/south/southafrica/stories/19971023_feat5.html

vi Seethe summary of the Constitutional Court Judgement of 25 July 1996 involving AZAPO Mrs Biko, Mr Mxenge and Mr Ribeiro and the TRC at http://www.truth.org.za/legal/azaposum.htm. And the full text of the Constitutional Court Judgement of 25 July 1996 involving AZAPO Mrs Biko, Mr Mxenge and Mr Ribeiro and the TRC at http://www.truth.org.za/legal/azapo.htm

vii The Khulumani (Speak-Out) Support Group is an informal self-help support structure. It consists of a loose network of groups in Gauteng and its neighbouring provinces in South Africa. They have offered survivors and families of victims some emotional and welfare support. This structure has in some cases introduced the truth commission to victims, found indigenous ways to reconcile with the past and lobbied the TRC concerning the rights and concerns of survivors and families of victims. For more information on the group see http://www.wits.ac.za/csvr

viii See Statman (1995) who argues that constructing the 'truth' solely from testimony of individual human rights victims and abusers obscure the larger truth of systematic oppression in South Africa. Also Goldblatt & Meintjies (1997) who add a gender angle to the argument, stating that the narrow interpretation of 'gross violations of human rights' can mean that women are not always identified as victims. Also see Mamdani (1996) who primarily argues that by defining victims too narrowly the notions of perpetrators and victims are weighed too heavily and this ignores the unique structural issues related to victimisation in South Africa. The result is, in his opinion, that there has been insufficient focus on the so-called beneficiaries of the 'apartheid' system, i.e. mainly the white population. Some of his points are also briefly elaborated on in "TRC Accused of Obscuring the Truth" at http://www.dispatch.co.za/1998/04/23/Southafrica/TRC.HTM

ix See the summary of the Constitutional Court Judgement of 25 July 1996 involving AZAPO Mrs Biko, Mr Mxenge and Mr Ribeiro and the TRC at http://www.truth.org.za/legal/azaposum.htm. And the full text of the Constitutional Court Judgement of 25 July 1996 involving AZAPO Mrs Biko, Mr Mxenge and Mr Ribeiro and the TRC at http://www.truth.org.za/legal/azapo.htm

 


Reference List

 

  • Centre for the Study of Violence and Reconciliation & The Khulumani Support Group (1998). Submission to the Truth and Reconciliation Commission: Survivor's perceptions of the TRC and suggestions for the final report. Report compiled by the Centre for the Study of Violence and Reconciliation and the Khulumani Support Group. Authors: Hamber, B., Maepa, T., Mofokeng, T. & van der Merwe, H.
  • Goldblatt, B. & Meintjies, S. (1997). Gender and the Truth and Reconciliation Commission. Submission to the Truth and Reconciliation Commission.
  • Hamber, B. (1998). Dr Jekyll and Mr Hyde: Problems of Violence Prevention and Reconciliation in South Africa's Transition to Democracy. In E. Bornman, R. van Eeden & M. Wentzel (eds), Violence in South Africa, pp. 349-370. Human Sciences and Research Council: Pretoria.
  • Ignatieff, M. (1998). The Warrior's Honor: Ethnic War and the Modern Conscience. Chatto & Windus, London.
  • Mamdani, M. (1996). Reconciliation without Justice. Southern African Review of Books, 46, p. 3-5.
  • Statman, J.M. (1995). Exorcising the Ghosts of Apartheid: Memory, Identity and Trauma in the "New" South Africa. Paper presented at the 18th Annual Meeting of International Society of Political Psychology, Washington D.C.

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