Against Forgetting: Reconciliation and Reparations after the Truth and Reconciliation Commission

• Jurisdiction: South Africa
• Author: Narnia Bohler-Muller
• Published date: 27 May 2019
• Pages: 466-482
• Date: 27 May 2019
• Citation: (2008) 19 Stell LR 466

466

AGAINST FORGETTING: RECONCILIATION

AND REPARATIONS AFTER THE TRUTH AND

RECONCILIATION COMMISSION

Narnia Bohler-Muller

BJuris LLB LLM LLD

Professor of Law, Nelson Mandela Metropolitan University

1 Introduction: after the TRC

“The struggle of man against power is the struggle of memory against forgetting.”1

This cont ribution takes a closer look at the interr elationship between law,

memory and repair/reparations. The premise to be explored is that institutional

memorialisation – and attempts at constr ucting a renewed and reconciled pol-

ity – as endor sed by tr uth and reconciliation tr iumphalists, tend to exclude

or silence counter-nar ratives. We therefore need to ask ourselves: what is left

behind in assimilationist attempts at inscribing a coherent national narr ative

of reconciliat ion, cultural healing and moral citizenship? It should be noted

from the outset that the aim of this contribution is not to discourage proc-

esses of reconciliation, forgiveness and healing, but to interrogate critically

the institutiona lisation of these processes.

More tha n ten yea rs after the volumi nous Truth and Reconciliat ion

Commission (TRC) Reports were handed over to the State President,2 four

outstanding issues have been identied.3 The “u nnished business” of the

TRC can be divided into the following broad cat egories:

Prosecutions•

Reparations•

Archives and•

Healing and reconciliation•

Although these categories are interrelated in many complex ways, the focus

of t his contribution is on reconciliation and repar ations in particular. Both

reconciliation and re parations appea r to be depend ent on one another to a

greater or lesser degree, and both also seem to be necessary conditions for

restorative, redistr ibutive and social justice. This contr ibution therefore poses

some difcult questions about the nature of reparations and reconcil iation in

post-apartheid South Afr ica. The focus below is on the effects that discourses

of national reconciliation, collective memory and social cohesion have had on

1 Kundera The Book of La ughter and Forgetti ng (1978) 3.

2 It should be noted that volumes 1-5 of the Report were subm itted more than a decade ago, but that volumes

6-7 were only publish ed as late as 2003.

3 See in general Vi lla-Vicencio & Du Toit (eds) Truth and Reconciliat ion in South Af rica: 10 Yea rs On

(2006).

(2008) 19 Stell LR 466

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our u nderstand ing of what it means to b e reconciled as South Africans. All

of these considerations and ques tions are of cou rse closely linked to what it

means to live alongside one anot her in a post-con ict society still tragically

marked by its history a nd unacceptably high levels of poverty and crime.

I concentrate my analysis on the work of the Khulumani Support Group4 and

specically the litigation they have initiat ed in the United St ates of America

against multi-national corporation s (M NC’s) t hat alleged ly supported and

maintained the apa rtheid regime.

Taking into account the fact that the national rhe toric of unit y, reconcili-

ation and healing – the politics of re conciliation and nation building – does

not reect the lived experiences of many v ictims and survivors of apar theid,

I analyse the demands made for reparat ions as (social) justice and the u rgent

need for us to face the r eality of the continue d suffering of ma ny citizens

who have not healed and who are unable to forgive.5 If we choose to ig nore

or silence t hese voices of dissent we are denying memory. If we uncritically

embrace t he all-encompassing t ruth of national unity and re conciliation, we

are denying space t o those who most need to be seen and heard. However, by

listening attentively to these counter-narratives, we can leave the conversation

open and keep alive the possibility of future reconciliat ion, for reconciliat ion

is “always to come”.6

2 Truth-telling and reconciliation

In 1995 Parliament passed the Promotion of National Unity and Reconciliation

Act7 mandati ng the establishment of a Truth and Reconciliat ion Commission

(TRC). The choice rested between two models of justice that have been adopted

in dealing with past v iolations in tra nsitional, post-conict societies, namely:

The Justice Model – addressing the question of prosecution and punish -•

ment, with elements of retributive just ice and criminal accountabilit y

The Reconciliation (or Truth) Model – with elements of rest orative justice •

such as the revealing of the tr uth and the seeking of reconciliation.

Of course, the adoption of either model has its price. The price of the former

requires having to l ive w ith the consequences of vengeance and hatred, the

latter, the chose n course in South A frica, re quires enem ies, when leaving

the negotiating table, to live face-to-face as neighbours while attempts are

4 Khulumani means “ to speak out” in Zu lu.

5 The position of t hose perpet rators and beneficiaries of apartheid who remain unrepentan t and unrec on-

ciled does no t fall within the scope of thi s contribution as this par ticular subject requires more time and

space for serio us contemplation.

6 Van der Walt Law and Sacrifi ce: Towards a Post-Apart heid Theo ry of Law (2005) 242. Van der Walt

submits that we cannot thi nk of reconciliation as a “presence” but should rather re- conceive reconciliat ion

as rhythm – somethi ng that “tur ns and re-tur ns”:

“The ti me of reconciliatio n can therefore not be thought in terms of prese nce … Reconciliatio n is

always to c ome. This do es not mean that it never comes. It only means that it never ar rives. It comes

and goes withou t arriving” (241-242).

7 Act 34 of 1995. The Ac t provides for the e stablishment of t he TRC, a C ommittee on Hu man R ights

Violations, a Commit tee on Amnesty and a Co mmittee on Reparat ion and R ehabilitation; and con fers

certai n powers to assign ce rtain fu nctions to and im pose certai n duties upon that C ommission and t hose

Committe es.

RECONCILIATION AND REPARATIONS AFTER THE TRC 467

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