The Truth and Reconciliation Commission of South Africa is one of the most well-known reparative justice bodies. However, since its creation in 1996, many issues have risen which have hindered justice for victims of the apartheid. These issues can be traced back to a clear lack of consultation with the victims themselves. The government failed to properly communicate with victims and their families to provide adequate reparations despite the Reparations and Rehabilitation Committee’s advice. In order to be effective, the Truth and Reconciliation Commission must incorporate some form of Ireland’s Citizens’ Assembly to give power to the voices of victims and allow them to influence policymaking.
Victims of human rights violations deserve adequate reparations, especially if their government had promised them. In the case of South Africa, if perpetrators were granted amnesty, then it is crucial for victims to receive justice in an alternative form. The TRC promised reparative justice, but rejected most of the proposals made by their own Reparations and Rehabilitation Committee. Meanwhile, what they have accepted has been delayed and reduced. Reparative justice, as a rarely used approach of justice, must evolve to adequately serve victims of human rights violations. One helpful step can be to build on existing models such as Ireland’s Citizens’ Assembly and the Truth and Reconciliation Commission of South Africa.
The Creation of The Truth and Reconciliation Commission
The Truth and Reconciliation Commission (TRC) was established in 1996 to address human rights violations committed between 1960 and 1994. The transition away from Apartheid began with a series of negotiations between the National Party and African National Congress (ANC) between 1990 and 1993. Democratic elections were held in 1994, including the first multiracial election of the country. The newly elected parliament established the Truth and Reconciliation Commission headed by Desmond Tutu to investigate human rights violations committed during Apartheid, including torture, detention, kidnappings, and murder.
The TRC was set up under the Promotion of National Unity and Reconciliation Act. According to the act, the TRC must take measures aimed at granting reparations to victims of human rights violations as well as restoring and rehabilitating their human and civil dignity. They must also make recommendations aimed at the prevention of human rights violations. The commission aimed to help victims reconcile and heal by knowing the truth. The perpetrators would be granted amnesty only if they confessed their crimes wholly and truthfully to the court and to victims or families of the victims.
The TRC was comprised of 17 commissioners: nine men and eight women. The commissioners were supported by around 300 staff members divided into three committees: Human Rights Violations Committee, Amnesty Committee, and Reparations and Rehabilitation Committee. The TRC took the testimonies of about 21,000 victims, 2,000 of which appeared at public hearings.
The Reparations and Rehabilitation Committee’s Proposals
The Reparations and Rehabilitation Committee made their list of proposals in 1998 in a TRC report. The three main reasons for reparations according to the committee are: victims of human rights abuses have a right to reparations and reconciliations for the losses and injustices they have suffered; the amnesty process means victims lose the right to claim damages from the perpetrators so there must be an alternate form of compensation; and lastly, the government agreed they would address the actions of the previous administration and therefore must take responsibility for reparation. The Committee advises on reparations for victims, but it is the president and parliament who makes the final decision. In their discussions with victims across the country, the Committee investigated the harm that was suffered, the needs and expectations of the victims, ways to help victims in immediate need, and potential proposals for long term measures for reparation and rehabilitation.
The proposed Reparation and Rehabilitation Policy had five parts: interim reparation (for victims in urgent need of assistance), individual reparation grants (each victim would receive an amount between 17,000 and 23,000 rand each year for six years taking into account access to services and daily living costs), symbolic reparation (monuments, memorials, and remembrance days), community rehabilitation programs (reforms to healthcare, education, housing, and more), and institutional reform (proposals at the institutional, legislative, and administrative levels to promote efficient governance and accountability).
Unfortunately, most of these proposals were not implemented. Only a one time payment of 30,000 rand was given to each victim instead of the yearly amount as originally suggested. As of 2013, the reparations fund stands at 1 billion rand. In response to their policy recommendations, the South African government argued that it could not consider the Committee’s proposals at the time since the work of other committees of the TRC were not yet finished. Victims and advocacy groups for victims were in uproar over the delayed government action towards reparations.
Ireland’s Citizens’ Assembly as the key to effective reparative justice
In 2012, Ireland created an assembly of majority citizens to discuss important topics and influence the Oireachtas, the Irish parliament. 66 citizens were randomly selected from the electorate. The other 33 people are politicians and the last person is Tom Arnold, a prominent economist. The citizens require no prior knowledge, as they are given time and background information. The result is a truly representative opinion of what Ireland’s future should be. The assembly is not allowed free rein to make these decisions. It merely makes recommendations, which parliament is not required to accept. Some specifics have changed over time to allow adjustment of a fairly new addition to Ireland’s democracy. The Citizens’ Assembly was an incredible reform of democracy in Ireland, solving important issues such as abortion, same-sex marriage, and more by prioritizing the voices of the people in decisionmaking.
Although the Reparations and Rehabilitation Committee listened to victims and allowed them to shape their proposals, the Parliament of South Africa did not allow them to shape actual policy and decisionmaking. To be clear, the issue of obstructed reparative justice does not lie in the Reparations and Rehabilitation Committee or the TRC for that matter, but rather in the hesitancy of Parliament. Perhaps, Parliament should hear directly from the victims themselves rather than through documents provided by the committees. The key to removing these obstacles in reparative justice is by breaking down the bureaucratic processes that enable them. The entire bureaucratic process of applications to become a victim transforms traumatic real-life experiences of human rights violations into faceless, voiceless numbered documents that are either approved or denied by the system.
The purpose of reparative justice is to center victims’ voices and repair past harms committed against them. The solution to effective reparative justice is to humanize victims as they should be and allow them to speak in an assembly to Parliament. They should use their past experiences while using factual information (whether learned in the assembly or outside) to advise on legislative decisions. Similar to the Citizens’ Assembly, Parliament would not be required to accept their suggestions, but they would have to listen and consider each account. At the very least, the victims and their experiences would be undeniable. They would no longer be lost in documents, applications, and rejected proposals.