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
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