SPEECH BY ADV DE LANGE ANC MP DURING THE PRESIDENT'S TABLING OF RECOMMENDATIONS RELATING TO THE TRC

Issued by African National Congress - Parliament

15 April 2003

Madame Speaker
Honourable President, Mr Thabo Mbeki
Honourable Deputy President, Mr Jacob Zuma, M.P.
Honourable Members
Ladies and Gentlemen
Comrades and Friends

I am not only honored to participate in this historic debate on behalf of the ANC, but I would also like to acknowledge the contribution of comrade Dullah Omar, one of the driving - forces behind the establishment of the TRC. History will record his contribution in bold type and in capital letters.

INTRODUCTION

As we bring closure to the formal aspects of the work and existence of the TRC, it is well to remember that although the TRC process revealed certain weaknesses, as is to be expected with any such ambitious project, it will always be regarded as one of our symbolic monuments, erected to "The Triumph of the Human Spirit over Adversity". Today I wish to remind us what we set out to do eight long years ago by way of an abbreviated analysis of the historical context, legal origins and philosophical foundation of the TRC, both in an international and national context.

INTERNATIONAL CONTEXT

I firstly addresss this issue within the last two decades of the second millennium witnessed the demise of a whole range of certainties, which irrevocably altered the world order, as we knew it. The East / West dichotomy, which provided a bi-polar world order, with its own unique internal dynamic allowing for a relative measure of equilibrium, has given way to a uni-polar world order, completely dominated by a rampant United States of America. This period of flux has witnessed an unprecedented period of explosive change towards democracy, as a myriad of countries have been involved in a political transition from some form of dictatorship to democracy.

These transitional processes, on the one hand, unleash new problems and tensions in society; on the other hand, they create new possibilities, opportunities and solutions, and allow for a renewing creativity.

Taking into account the differences which exist between transitional processes, national traditions, material circumstances and the freedom of political and legal options, no country or organization has developed an approach or model which could in any way claim to be universally applicable to nations-in-transition when dealing with the legacy of their past, which invariably encompasses each aspect of such society. This is particularly apposite if such legacy has been associated with violations of human rights in the past (hereinafter referred to as violations).

In international jurisprudence and practice two broad, flexible, somewhat imprecisely defined and mutually exclusive models or approaches have been developed for dealing with past violations in transitional situations. I shall refer to these as: the JUSTICE MODEL: which deals with the question of prosecution and punishment, with the elements of (retributive) justice and (criminal) accountability forming its central tenets, (usually within the framework of an existing criminal justice system or mechanism); and, THE RECONCILIATION (OR TRUTH) MODEL: with the elements of (acknowledgement of) truth and reconciliation forming its central tenets - of which the truth commission is the most often used mechanism in recent times.

The stark choice between these two models, is what confronted us, those eight long years ago, and are echoed in the ominous warning of Adam Michnik at the time: "On the road out of dictatorship, each solution has its price. The road of justice - which often turns into the road of revenge and war - has bloodshed as its price. But the road through negotiations and reconciliation has its price too. When you get up from the negotiating table you may have to defend your former enemy, now your partner, from a lynch mob. In truth what you are defending is the principle that all citizens have the right to live in the same state".

We as South Africans found neither of these models on their own to be apposite to our transition. I am, therefore, of the opinion that South Africa may have, at least, created a new, innovative variant of either model, or, at best, created a third unique hybrid model. I refer to it as a RESTORATIVE OR SOCIAL JUSTICE MODEL, containing essential elements of both models, as a mechanism suited to our transition, to deal with our legacy of human rights violations.

Time constraints do not allow me to analyse the TRC in any detail. Suffice to point out that the philosophical bedrock upon which the establishment of the TRC rests, is best captured in the pragmatic wisdom of Chilean lawyer, Jose "Pepe" Zalaquett: "Many people, and especially many people in the world of the human rights movement are disconcerted by the idea that you should also bear in mind the feasibility of your principles. In Chile, President Aylwin, stated at his inauguration, that he would strive for all truth and justice in so far as it was possible…..." and "….we have all come to realize that under changing circumstances, a less striking form of courage is called for. It is the courage to forego easy righteousness, to learn how to live with real-life restrictions, but to seek nevertheless to advance one's most cherished values day by day, to the extent that it is possible. Relentlessly, responsibly."

THE SOUTH AFRICAN HISTORICAL CONTEXT, LEGAL ORIGINS AND PHILOSOPHICAL FOUNDATION UNDERPINNING THE GENESIS OF THE TRC

South Africa is at present still undergoing a period of transition. The last decade has witnessed a gradual shift from an illegitimate, minority, white dictatorship, towards a more humane and democratic society. The foundation has been laid for our society, firstly, to start dealing with and rolling back the legacy of our Apartheid past and, secondly, to achieve our strategic objective of developing into a truly united, non-racial, non-sexist, democratic and prosperous nation. This has been made possible by the deliberate policy of reconciliation, reconstruction and development adopted by the ANC, which has enabled us to narrow the space for those forces, which might have had plans to subvert the transition by violent and other means. This policy forms the kernel of our social transformation project during the transition and is now a foundational principle of our Constitution.

The main content of this policy is the transformation of the political, economic, social, ideological, moral and all other aspects of the legacy of the apartheid dispensation. This is to be achieved by the building of a single South African nation which acknowledges the diversity of its people; a new and progressive patriotism; the healing of the wounds of a shameful past; the de-racialisation of society; the liberation of Black people from political and economic bondage; the progressive eradication of gender inequalities and women's oppression in particular; uplifting the quality of life and promoting the equality of all South Africans through the progressive sustained eradication of poverty and the attainment of the basic needs of the majority; creating and maintaining a culture of democracy and human rights, and establishing a more humane and caring society.

Arising from this approach: the attainment of the twin goals of socio-economic justice (referred to as socio-economic reconstruction) and the restoration of the moral order of our country (referred to as moral reconstruction) have crystallised as the two main strategies to be vigorously pursued to successfully attain social justice as a means of dealing with South Africa's legacy of her apartheid past and achieving our strategic objectives.

Firstly, in respect of our socio-economic reconstruction goal, we have introduced various mechanisms in pursuit of the attainment of socio-economic justice. I mention but five such mechanisms: Firstly: The adoption of sound and broadly acceptable macro-economic policies based on the pursuit of growth and development. Secondly: There is the RDP program, which has been referred to by many commentators as the most comprehensive and realisable socio-economic program ever devised, in at least Africa. Thirdly: Then there is the Land Claims Commission and Land Court, to particularly deal with our history of land dispossession and forced removals. Fourthly: There are the various budgets passed to date which are showing a sharply increasing move away from apartheid patterns of spending, and future budgets; Fifthly: There are a myriad of socio-economic and affirmative action programmes of each government department.

Secondly, in respect of the moral reconstruction goal, there is and was a compelling need for the moral reconstruction of the country, not least of all due to the abdication of the rule of law and the violation of human rights under apartheid. This entailed us restoring some semblance of a moral order for our society, based on international norms and standards, and which broadly reflects the new soul of our nation. We needed to identify a tool or mechanism to enable our nation to deal with its psychological or moral healing and to lay a foundation for the moral reconstruction of our society. This particular process of healing is highly personalised in the one sense, but also has an important public dimension as the nation as a whole needs to come to grips with such violations. One of the ways to start the healing process in South Africa was to embark on an honest assessment and diagnoses of the sickness within our society, in an attempt to give our people, both perpetrators and victims, an opportunity to face the past and its consequences, and to start afresh. It is in this context that the possible creation of a truth commission offered us one such opportunity to deal with the past without dwelling on it and to establish the moral foundation from which to build a truly new South Africa. Hence, the genesis of the TRC.

I would venture the opinion that the TRC was a logical conclusion to our atrocious and shameful past. The establishment of the TRC did not take place in a vacuum; it is not an abstract concept drafted by lawyers in some dark, secret room. The idea, not the detail, germinated in the crucible of struggle; born in the engine room of political negotiation. Negotiations is about building trust, confidence-building mechanisms between protagonists, as much as anything else. The manner in which our transition unfolded through the process of political negotiation made the possibility of the establishment of a truth commission inevitable. I would go so far as to venture that the final settlement of the negotiation process, codified in the interim Constitution, at least implicitly, contained the seeds of the establishment of the TRC.

Thus, in 1995, this Parliament established the TRC, by passing the Promotion of National Unity and Reconciliation Act. This marked one of the historic events, during the transition, which facilitated the "so-called South African miracle". Although the establishment of truth commissions had become a widely used tool or mechanism in the recent past, the TRC marked a unique moment in world history, because it was the first time that a nation had created a truth commission through a public, participatory and democratically verifiable process, by way of an Act of Parliament. The TRC, also in many other respects, featured unique and historic characteristics, which individually, collectively or contextually, had never been utilized in the context of a truth commission. Suffice to say for now that our approach was for the first time ever to contextualise an (individualized) amnesty process, within the framework and context of a truth commission, in such a manner as to focus in a balanced and reconciliatory manner on the restoration of the dignity, honor and integrity of the victims, whilst at the same time giving effect to the constitutional provision of providing for an amnesty process.

Although it is undoubtedly so that the TRC will always proudly stand out as a shining beacon of the triumph of the human spirit over adversity, we must continuously strive to maintain a balanced perspective in respect of the role and value of the TRC in addressing the legacy of the past, especially in achieving or promoting reconciliation. It should neither be underemphasized nor overemphasized. In the context of what has gone before it cannot be emphasized strongly enough that the TRC is but one mechanism we have pursued in respect of our deliberate policy of reconciliation, reconstruction and development, to enable us to address but one moral aspect of the legacy of our past, namely the various forms of mainly physical violence we unleashed against each other. It was never meant to address all the wrongs caused by our Apartheid legacy, which are varied, complex and multi - facetted, as its focused and limited mandate bears witness to. It is important to stress that reconciliation, reconstruction and development is a process, not a single event or even a series of events. And in all probability a lengthy process at that. The TRC was and is not meant to equal reconciliation. The TRC cannot per se bring reconciliation; it can only create a space to facilitate the process. Long after the TRC has ceased to exist, the process of reconciliation will still be continuing in various other forms, more particularly within civil society. The TRC is but one moment, one event, albeit, an important moment or event, in the new lease of life of our nation; it is not the process itself. Hopefully, the process will now be conducted at a qualitatively and quantitatively higher level, with a nation more at peace with herself. Even if the TRC only makes a valuable contribution to raising that level to some extent, future generations will not judge us too harshly; they may even smile fondly upon us. The TRC's importance is that it came relatively close to the beginning of the process. It was the first time that a South African government - ironically the democratic one - through the creation of the TRC acknowledged that terrible wrongs had been perpetrated upon her people, mainly by the old government, and provided them with a state instituted and sponsored mechanism, independently managed and controlled by civil society.

Without pleading for ahistorical behaviour, we must be particularly careful not to elevate this one mechanism of a TRC, as important as it is, to some mythical status as our only or most important vehicle to achieve reconciliation, in isolation from all the other mechanisms we are utilizing to achieve social justice and to reconcile our people. A danger lurks within such an approach, because it may create expectations which could never be met by the creation of a TRC.

It is in this context that the attainment of the twin-goals of socio-economic justice and the restoration of the moral order of our country to deal with our apartheid legacy has been referred to by Dr Alex Boraine, as our "unfinished business": the flipside of the same coin. Whilst the focus of the TRC will be on seeking the truth in the search of restoring the moral order and the pursuit of reconciliation and unity, serious delays in the improvement of the quality of life of persons will bring into disrepute any attempts at reconciliation. If we do not substantially deliver on socio-economic justice, then no matter how reconciliatory we are or whether we know the complete truth about our past or not, the whole South African liberation and democratization project could perhaps be put in jeopardy. Revealing the complete truth of our shameful past, without attaining socio-economic justice, or, conversely, attaining socio-economic justice without revealing the complete truth: either scenario - spells failure, possible disaster and is unacceptable; the anathema of attaining social transformation. Simply put, reconciliation cannot be promoted at the expense of reconstruction and development, with the converse being equally true.

Finally and very importantly, I need to mention possibly one of the greatest "hidden" achievements of the TRC, which amazingly is never mentioned. During most recent transitions, especially those involving a move away from a (military) dictatorship, either simultaneously or prior to the establishment of a truth commission, has been accompanied by a decision to decree a general or blanket amnesty. In these transitions, the truth commission and general amnesty became necessary, and sometimes uncomfortable, bed persons.

In my view, the granting of such a general amnesty has been the main reason for creating a situation of impunity in those countries, resulting in the hegemony and the conspiracy of silence of the government forces, which were involved in violations, remaining virtually intact during such transitions, and which has in return led to such forces remaining outside their truth commission processes.

Our TRC bears witness to the first occasion in world history that I am aware of, where the hegemony and the conspiracy of silence of the security forces, in this instance especially the police, had been broken in a country undergoing a transition to democracy, by way of a truth commission.

CONCLUSION

In conclusion, as we continue building our nation, we may well heed Andreas Sajo, when he opines: "There is no perfect conditions for justice to take place, but transition, in particular, produces a special set of conditions for imperfect justice." However, we need to also keep reminding ourselves that eight years ago, South Africa began a journey to deal with the pathology of her past: with the possibility of reconciliation without justice; or with the possibility of justice without reconciliation: she ended with reconciliation and justice. The basic concept of "the South African way" is captured eloquently in the words of Prof. Werle: