Awash With Amnesty: Examining the mixed legacy of South Africa’s post-apartheid Truth and Reconciliation Commission

By Zoe Rubin

Children’s collages paper the walls of the Amy Biehl Foundation’s conference room. Cut-up construction paper and thick swabs of paint depict scenes of families standing hand-in-hand in front of their homes in Cape Town’s townships, where small shacks of corrugated tin or feeble wood cover miles of barren land in a vast dusky sea. The Amy Biehl Foundation, which runs afterschool sports and arts outreach programs for youth in these townships, was created by those who know intimately the devastating effects of youth and promise cut short. In South Africa’s fraught political landscape, the unlikely partnership underlying the Foundation has become a model for how tremendous acts of amnesty can individually shape post-apartheid reconciliation. But it remains to be seen whether South Africans society can live with the high price of forgiving its past.

Ntobeko Peni, the Amy Biehl Foundation’s Director of Programming, grew up in Langa, perhaps the poorest of Cape Town’s townships, at the close of the apartheid era. At the age of twelve, Peni would collect glass bottles for the neighborhood’s teenagers, knowing that they would be turned into Molotov cocktails and hurled against the South African riot police. At the age of the fifteen, he remembers, “you wanted to be the one to throw them.” And three years later, on August 25, 1993, Peni was elected chairperson during a heated meeting of the newly reformed Langa High School Unit of the Pan African Students Organization (PASO), an affiliate of the military wing of the Pan Africanist Congress of Azania (PAC) liberation movement.

Peni and about 90 companions left the meeting inflamed by a series of speeches calling for students to kill all white “settlers” and assist PAC militants in making the country ungovernable, thus invalidating South Africa’s forthcoming African National Congress ANC-backed democratic presidential elections. Chanting the slogan, “One Settler, One Bullet,” they saw a young white woman fleeing from a smaller mob of other students. They joined her assailants, picking up stones and hurling them at her — getting closer and closer with each throw. When she fell, they swarmed around her, attacking first with punches and a brick, and then with knives. Peni and his companions thought that they had killed a white South African – a “settler.” But the woman who died that evening was an American, a Fulbright Scholar newly graduated from Stanford University who had come to South Africa to assist women’s rights groups and voter education efforts. Her name was Amy Biehl. That Peni, as well as one of his companions that night, Mzikhona Nofemela, can now work for the very foundation that honors Amy Biehl’s memory speaks to the immense promise of South Africa’s transition to democracy and, in particular, the audacity of its critical restorative judicial body — the Truth and Reconciliation Commission (TRC).

The TRC granted Peni, Nofemela, and hundreds of other apartheid-era political actors amnesty for their crimes and a second chance at life in the “New South Africa.” Still, a decade after the TRC’s conclusion in 2003, South Africans now widely view the reconciliation process as incomplete and stagnant. The government agencies charged with executing the TRC’s recommendations are mired in bureaucratic gridlock. Given South Africa’s recent history of embracing amnesty and forgiveness over traditional forms of justice, today’s rampant levels of government corruption and impunity may be more than coincidental.

Established by President Nelson Mandela and Archbishop Desmond Tutu immediately following the end of apartheid in 1995, the TRC sought to uncover the complete story of the political abuses and gross human rights violations that had been committed by the South African apartheid government and resistance movements alike. In contrast to the punitive nature of the post-World War II Nuremberg Trials, the TRC’s stated objective was “to promote national unity and reconciliation in a spirit of understanding which transcends the conflicts and divisions of the past.” In exchange for honest and complete accounts of their past crimes, perpetrators of political violence committed during the apartheid era could apply for full amnesty. Ultimately, 849 of the initial 7,112 applicants were granted amnesty. Victims and their family members testified before the commissioners to the horrors that they or their loved ones had experienced and so entered their stories into the historical record. Committed on an individual and societal scale to the legal concept of the “right to know,” the TRC sought to uncover the fates of individuals who had disappeared, undergone torture, or been killed and the broader narratives of why such atrocities occurred.

South Africa was certainly not the first young democracy to hold such a truth and reconciliation process.  Yet the TRC’s broad mandate and international prominence far exceeded that of preceding commissions in Latin American nations like Argentina and Chile. Victims’ rights organizations, such as the Khulumani Support Group, collectively sued the nascent government to ensure that representative hearings could be nationally broadcast on television and radio networks.  Following the international scope of the anti-apartheid movement, the unprecedented survey of human rights violations and astounding reconciliation process captivated a global audience.

Many victims and their advocates initially rejected the TRC’s premise that South Africa’s deep historical wounds would begin to heal through a public truth-seeking process, one that would occur at the expense of a traditional legal tribunal. Dr. Vinodh Jaichand, then the National Director of Lawyers For Human Rights and now a Professor of Human Rights at the University of Witwatersrand, was one such skeptic. “I didn’t think that the TRC as organized by South Africa would deliver anything substantial,” he admitted. Yet as former ANC guerillas or members of the Vlaakpaas, South Africa’s infamous paramilitary hit squad, revealed in horrific detail the murders that they had committed and the locations of their victims, Jaichand’s doubts subsided: “No court of law could even come close to getting that amount of evidence.” Amnesty applicants’ testimony often allowed families who had suffered for years from loved ones’ disappearances to at last hear accounts of their family members’ final hours and to receive their remains.

Peni himself did not initially support the TRC’s mandate of amnesty and reconciliation. His political party, the PAC, had not participated in the apartheid-ending negotiations that gave rise to the restorative justice body, and so viewed the settlement as illegitimate and vilifying. But his stance was challenged by the decision of the Biehl family to support his amnesty application. “They said it wasn’t about them as Americans, but for South Africans to forgive each other,” Peni remembers. “I felt I didn’t deserve their handshake.” A few years later, an anthropologist put Peni and Nofemela in contact with the Biehls and they began to work for the Foundation.

Yet now, ten years after the end of the amnesty hearings, not all TRC beneficiaries and amnesty recipients have contributed to Peni’s “New South Africa.” Peni recalls how some of his fellow former militants, who had received amnesty under the TRC, fell into crime. Armed only with those skills they had learned during their time with PASO, they lacked any formal higher education. Their talents lay in breaking and entering, in designing explosives and driving getaway cars. “There was no demilitarization of people who were involved in militancy,” Peni emphasized. “I had to say ‘this stops here.’” Unable to find sufficient work in the post-conflict society, many former militants attempted armed robberies and often returned to prison again: “People coming from my background — taught to maim and injure — are trapped in that life.”

Further, most victims of apartheid-era political crimes do not feel that they have been adequately compensated for their suffering. In its final 2003 report, the Commission explicitly recommended that the South African government not award victims with one-off reparation payments but instead adopt a “needs-based” policy tailored to victims’ varying situations. As of May 2013, however, the South African government has almost finished issuing one-off payments of R30,000 (equivalent to about $2,947) to the near 17,000 individuals designated as victims by the TRC. The Khulumani Support Group, a victims’ advocacy organization that calls for far greater reparations and redress, considers both figures to be disturbingly low. Dr. Marjorie Jobson, the organization’s national director, estimated that more than 64,000 South Africans could have qualified as victims under the TRC yet could not, or chose not, to engage in the process. With a soft, melodic voice, Jobson drew out the last syllables of her carefully chosen sentences. The TRC, she sighed, was “symbolic and representative, rather than inclusive.”

On the surrounding walls of the Khulumani Support Group’s Johannesburg offices, vibrant posters spotlighted the organization’s advocacy and community healing efforts. One display called for “corporate accountability,” detailing Khulumani’s ongoing US-based lawsuit against 23 multinational companies and banks, including IBM, Ford, and General Motors, that Khulumani has accused of financially backing the apartheid regime on the brink of bankruptcy. Victims rights groups have long pressed the South African government to prosecute those individuals and organizations refused amnesty under the TRC who number as many as 350. Another poster’s glossy boldface type read: “being a family of a disappeared person is a kind of daily torture.”

A once-off individual grant of R 30,000 cannot compensate for an amputee’s inability to hold a full-time job, or the potential for lifelong financial stability robbed from the mother of a disappeared son. Jaichand asserted that “victims have always suffered from the unfinished business of the TRC. They weren’t asking for freedom of expression, but for education, houses, nursery schools.” Even if testifying about their ordeals could have helped apartheid victims come to terms with their pasts, what they truly needed to move on was access to tangible government support, such as education, healthcare, and mental health services in particular. Despite the TRC Report’s unequivocal call for the South African government to “render services for all ongoing needs of victims that resulted from the violations suffered,” Jobson contended that the Ministry of Justice’s TRC Unit has “no vision for solving the problems of education, or healthcare, or housing.” Time and again, she notes, it has repeatedly spurned all efforts by civil society groups to work together.

On a daily basis, the TRC Unit coordinates physical searches for designated TRC-list victims eligible for reparations and conducts exhumations and reburials of missing persons. In 1995, the now R1.1 billion President’s Fund was first established to provide reparations and aid to apartheid victims. South Africa’s Mail & Guardian reported that in 2011 the Fund paid R330,648 to cover reparations and reburials, while the same year earning a staggering near R62-million in interest alone. Lufuno Mmbadi, acting chief of the TRC Unit, asserted that the vast remainder of the 18-year-old Fund would eventually be used for community rehabilitation initiatives.

Yet ten years after it began drafting the regulations that would govern such work, the TRC Unit still remains bogged down in a bureaucratic impasse, coordinating with relevant ministries such as the Departments of Basic Education, Higher Education, and Health. Mmbadi adamantly emphasized that such regulations must adhere to the needs of individual communities and require methodical care, insisting that “timeframes have been set but you find yourself pushing the goalposts.”

The TRC process helped to piece together a clearer understanding of realities of the apartheid era, but it also created an unprecedented lack of accountability in both the government and daily life. Today, the same streak of impunity still permeates South African society, from the notorious violence of the state police force to the perilous working conditions of the mining industry. For some, like the Amy Biehl Foundation’s Ntobeko Peni, the past two decades have been a time of rapid change and opportunity. Thousands of others, however, still languish, waiting for their government to live up to its word. The ultimate evaluation of the TRC model may not be felt in this young democracy for many years. For now, however, Jobson’s words give voice to a common sentiment. “People said that if you were going to have reconciliation, you needed amnesty and reparations,” she recalled, “but we’ve got a lot of amnesty and very little else.”

Zoe Rubin ’16 is in Timothy Dwight College. She can be reached at zoe.rubin@yale.edu .