FXI Update -- October / November 1995

The Truth and Reconciliation Commission

The Concept of Reparation and the Rights of Victims to Proper Compensation

Part 1 By Yasmin Sooka

The Truth and Reconciliation Commission (TRC) is slowly but surely taking shape. At the time of going to press, a shortlist of 41 names was announced that will be eligible for selection of the Commissioners who will sit on the TRC. At the same time, the Azanian Peoples' Organisation togetther with the families of the lat STeve Biko and Victoria Mxenge, announce that they would launch a court bid to have the TRC Act declared unconstitutional. Their argument is that the Amnesty clause within the act will impinge negatively on the interests of the victims of Apartheid. The case has yet to come to court. The Freedom of Expression Institute has been closely monitoring the TRC process since the idea was first mooted by Justice Minister Dullah Omar last year. We see the process as an important step in the country coming to terms with its past and will play an important role in opening up the previously censored and secret aspects of our history. Last month, Yasmin Sooka, who is the President of the South African Chapter of the World Conference on Religion and Peace, wrote on the orle of the Non-Governmental Organisations in the TRC process. This month, we print the first part of an article by Yasmin dealing with the reparations and the constitutional rights of victims.

The commission has the further function of reporting to the nation. The reports must contain details of the human rights violations as well as make recommendations regarding measures aimed a preventing possible future gross human rights violations in South Africa.

How will the Commission do this?

The Human Rights Violations Committee will give victims the opportunity to relate their own account of the gross violations of which they are the subject. After investigation and a hearing, it is referred to the Reparations and Rehabilitation Committee who will then recommend measures for reparation in respect of these violations. It could be argued that the category of victims who can approach the Commission is limited as it is only those who have suffered GROSS human rights violations and those eligible for amnesty who can approach the Commission. Here Lawyers and Human Rights activists will have to play a role in ensuring that the widest interpretation is give to the provisions of the Act.

The Commission will formulate a policy on the granting of reparations to victims and measures aimed at rehabilitating and restoring the human and civil dignity of victims. The President will consider the recommendations and refer it to the Joint Committee of Parliament. The Joint Committee will then consider the matter and once Parliament approves, the necessary regulations will be implemented. The regulations will determine the basis and conditions upon which reparation will be made. It will also determine the authority responsible for the practical implementation of the regulations. The Joint Committee can also advise the president on the granting of urgent interim reparations to victims.

Apart from monetary compensation, the Com mission will have the right to make recommendations in respect of the following:

  1. Creation of institutions conducive to a stable a fair society;

  2. Institutional, administrative and legislative measure which should be taken or introduced, in order to prevent the commission of further human rights violations. The Act also spells out the principles to be applied when dealing with victims.

Does this process satisfy the rights of victims?

Despite the reassurances from politicians, we have compromised accepted Human Rights norms by the granting of amnesty for human rights violators without prosecution. However, we also have to be realistic. The achievements of an election, and a government of National Unity would not have taken place had this clause not been included in the Interim Constitution. The world of REAL POLITIK has thus predetermined for us our agenda in respect of Human Rights offenders.

Lawyers for Human Rights have in fact argued that the amnesty provisions in the Truth and Reconciliation Commission (TRC) Act have violated the constitutional rights of victims to a fair trial. Indeed should the reparation committee not look to adequately compensating victims, it might well face a constitutional challenge on this point. Decision by International Tribunals and Commissions clearly reflect increasing awareness of the duty of the States to compensate victims of human rights abuses.

International experts are of the opinion that we have managed to marry the process of justice with reconciliation. One of the problems with the process is the fact that financial support for the reparation process is dependent on the President's Fund and amnesty, once granted, divests the victim of the right to claim civil compensation. If reparation therefore does not include proper compensation to balance the rights that the victim enjoyed, will this not constitute an infringement of the victim's constitutional rights? The legislators assure us of course that this provision has been thoroughly scrutinized. Human Rights groups are of course not convinced.

A further problem is the fact that reparation is lim ited to victims who are the subject of acts of gross violations of human rights or victims identified in cases where amnesty has been granted. One understands the need to place limitations on the numbers of claimants because of financial constraints but perhaps the Commissioners will need to give serious attention to this aspect of the Act.

Reparation could include pension schemes for vic tims and their widows and bursary schemes for the children of victims. It could also include access to medical assistance schemes, and/or free medical aid and endowment funds set up for victims and their families. The Act creates the space for the Commissioners to look at this area creatively and make reparations of a physical kind meaningful. Other countries, especially Holland, have very good examples of financial assistance schemes that can be looked at.

Broadening the scope of reparations

Reparation, however, needs to go beyond acts of financial compensation for individuals. if rehabilitation is to be meaningful in terms of the South African experience, it needs to go beyond the individual and focus on communities as communities were affected by the repression of the old regime.

Reparation as a mechanism for achieving recon ciliation cannot be looked at in isolation. The Commission will need to focus on the Reconstruction and Development Programme (RDP) as well as the Land Reform Programmes as accompanying mechanisms in the process of reconciliation. T here is of course another level at which reparation needs to take place. How do you undo generations of deprivation of the majority in the economic and education sphere? Although the political process has partly been put in place for political changes to take place, how is real change accomplished which will enable the majority to take their rightful place in the economic world in the new South Africa?

Meaningful change is related to economics. If you do not have access to the economy you cannot improve your lot. Political change has enriched the minority again, with a handful of Black elites having limited access to better jobs and the economy. However, the majority of the former oppressed black community is still oppressed by the successful economic bondage that apartheid has achieved. The majority cannot transform its bondage because of the lack of education, skills and access to the economy which is still in the hands of the minority white community. The structural violence of exploitation and repression needs to be destroyed. The first struggle is over but the second has only begun. Rehabilitation needs to take this factor into account and the Reparation Committee will need to consider measures aimed at improving the quality of life of the oppressed in South Africa.

Back to Table of Contents...