Legitimation or Judgment? South Africa's Restorative Approach to Transitional Justice

Polity

Volumn 36, Issue 1, 2003, Pages 23-51

  Leebaw, Bronwyn ^a  

^a UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 1842715775     PISSN: 00323497     EISSN: None     Source Type: Journal    
DOI: 10.1086/POLv36n1ms3235422     Document Type: Review

References (139)

1. Antjie Krog, Country of My Skull (Johannesburg: Random House, 1998), 73.
2. Application in Terms of Section 18 of the Promotion of National Unity and Reconciliation Act No. 34 of 1995. (1997).
3. Krog, Country, 77.
4. Krog, Country, 77
5. Ivan Powell, "Where Have all the Apartheid Bastards Gone?" Daily Mail and Guardian, 21 June, 2000.
6. Priscilla Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (New York and London: Routledge, 2001), 14. At least 21 countries have established truth commissions since 1974, including: Uganda, Bolivia, Argentina, Uruguay, Zimbabwe, Nepal, Chile, Chad, South Africa, Germany, El Salvador, South Africa, Sri Lanka, Haiti, Ecuador, Guatemala, Nigeria and Sierra Leone.
7. See for example, Transitional Justice: How Emerging Democracies Reckon with Former Regimes, ed. Neil J. Kritz (Washington DC: United States Institute of Peace Press, 1995); James A. McAdams, ed., Transitional Justice and the Rule of Law in New Democracies (Notre Dame: University of Notre Dame Press, 1997); Martha Minow, Between Vengeance and Forgiveness (Boston: Beacon Press, 1998); Carla Hesse and Robert Post, eds., Human Rights in Political Transitions: Gettysburg to Bosnia (New York: Zone Books, 1999); and Ruti Teitel, Transitional Justice (Oxford: 2000).
8. See for example, Transitional Justice: How Emerging Democracies Reckon with Former Regimes, ed. Neil J. Kritz (Washington DC: United States Institute of Peace Press, 1995); James A. McAdams, ed., Transitional Justice and the Rule of Law in New Democracies (Notre Dame: University of Notre Dame Press, 1997); Martha Minow, Between Vengeance and Forgiveness (Boston: Beacon Press, 1998); Carla Hesse and Robert Post, eds., Human Rights in Political Transitions: Gettysburg to Bosnia (New York: Zone Books, 1999); and Ruti Teitel, Transitional Justice (Oxford: 2000).
9. See for example, Transitional Justice: How Emerging Democracies Reckon with Former Regimes, ed. Neil J. Kritz (Washington DC: United States Institute of Peace Press, 1995); James A. McAdams, ed., Transitional Justice and the Rule of Law in New Democracies (Notre Dame: University of Notre Dame Press, 1997); Martha Minow, Between Vengeance and Forgiveness (Boston: Beacon Press, 1998); Carla Hesse and Robert Post, eds., Human Rights in Political Transitions: Gettysburg to Bosnia (New York: Zone Books, 1999); and Ruti Teitel, Transitional Justice (Oxford: 2000).
10. See for example, Transitional Justice: How Emerging Democracies Reckon with Former Regimes, ed. Neil J. Kritz (Washington DC: United States Institute of Peace Press, 1995); James A. McAdams, ed., Transitional Justice and the Rule of Law in New Democracies (Notre Dame: University of Notre Dame Press, 1997); Martha Minow, Between Vengeance and Forgiveness (Boston: Beacon Press, 1998); Carla Hesse and Robert Post, eds., Human Rights in Political Transitions: Gettysburg to Bosnia (New York: Zone Books, 1999); and Ruti Teitel, Transitional Justice (Oxford: 2000).
11. See for example, Transitional Justice: How Emerging Democracies Reckon with Former Regimes, ed. Neil J. Kritz (Washington DC: United States Institute of Peace Press, 1995); James A. McAdams, ed., Transitional Justice and the Rule of Law in New Democracies (Notre Dame: University of Notre Dame Press, 1997); Martha Minow, Between Vengeance and Forgiveness (Boston: Beacon Press, 1998); Carla Hesse and Robert Post, eds., Human Rights in Political Transitions: Gettysburg to Bosnia (New York: Zone Books, 1999); and Ruti Teitel, Transitional Justice (Oxford: 2000).
12. Constitution of the Republic of South Africa Act no 200, 1993.
13. Promotion of National Unity and Reconciliation Act No 34. South Africa, (July 26, 1995).
14. See Charles Villa-Vicencio, "Restorative Justice: Dealing with the Past Differently," and Johnny de Lange, "The Historical Context, Legal Origins and Philosophical Foundation of the South African Truth and Reconciliation Commission," in Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa, ed. Charles Villa-Vicencio and Wilhelm Verwoerd (Cape Town: Juta and University of Cape Town Press, 2000); Desmond Mpilo Tutu, No Future Without Forgiveness (London: Rider Books, 2000), 54-55; 155-57; Alex Boraine, A Country Unmasked: Inside South Africa's Truth and Reconciliation Commission (Oxford: Oxford University Press, 2000), 278-99; 387-400.
15. See Charles Villa-Vicencio, "Restorative Justice: Dealing with the Past Differently," and Johnny de Lange, "The Historical Context, Legal Origins and Philosophical Foundation of the South African Truth and Reconciliation Commission," in Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa, ed. Charles Villa-Vicencio and Wilhelm Verwoerd (Cape Town: Juta and University of Cape Town Press, 2000); Desmond Mpilo Tutu, No Future Without Forgiveness (London: Rider Books, 2000), 54-55; 155-57; Alex Boraine, A Country Unmasked: Inside South Africa's Truth and Reconciliation Commission (Oxford: Oxford University Press, 2000), 278-99; 387-400.
16. See Charles Villa-Vicencio, "Restorative Justice: Dealing with the Past Differently," and Johnny de Lange, "The Historical Context, Legal Origins and Philosophical Foundation of the South African Truth and Reconciliation Commission," in Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa, ed. Charles Villa-Vicencio and Wilhelm Verwoerd (Cape Town: Juta and University of Cape Town Press, 2000); Desmond Mpilo Tutu, No Future Without Forgiveness (London: Rider Books, 2000), 54-55; 155-57; Alex Boraine, A Country Unmasked: Inside South Africa's Truth and Reconciliation Commission (Oxford: Oxford University Press, 2000), 278-99; 387-400.
17. See Charles Villa-Vicencio, "Restorative Justice: Dealing with the Past Differently," and Johnny de Lange, "The Historical Context, Legal Origins and Philosophical Foundation of the South African Truth and Reconciliation Commission," in Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa, ed. Charles Villa-Vicencio and Wilhelm Verwoerd (Cape Town: Juta and University of Cape Town Press, 2000); Desmond Mpilo Tutu, No Future Without Forgiveness (London: Rider Books, 2000), 54-55; 155-57; Alex Boraine, A Country Unmasked: Inside South Africa's Truth and Reconciliation Commission (Oxford: Oxford University Press, 2000), 278-99; 387-400.
18. For a more general analysis of the ways that TRC policies reflected or departed from restorative justice principles see Bronwyn Leebaw, "Restorative Justice for Political Transitions: Lessons from the South African Truth and Reconciliation Commission," Contemporary Justice Review 43 (2001): 267-89.
19. See Diane Orentlicher, "Settling Accounts: The Duly to Prosecute Human Rights Violations of a Prior Regime," Yale Law Journal 100 (1991): 1537-2615.
20. Howard Zehr's, Changing Lenses: A New Focus for Crime and Justice (Scottsdale, Pennsylvania: Herald Press, 1990) is widely recognized as having defining the theoretical core of restorative justice. See also, Restorative Justice: International Perspectives, ed. Burt Galaway and Joe Hudson (New York: Criminal Justice Press, 1996); Paul McCold, Restorative Justice: An Annotated Bibliography (New York: Criminal Justice Press, 1997); and Jim Consedine, Restorative Justice: Healing the Effects of Crime (Lyttleton, New Zealand: Ploughshares, 1995).
21. Howard Zehr's, Changing Lenses: A New Focus for Crime and Justice (Scottsdale, Pennsylvania: Herald Press, 1990) is widely recognized as having defining the theoretical core of restorative justice. See also, Restorative Justice: International Perspectives, ed. Burt Galaway and Joe Hudson (New York: Criminal Justice Press, 1996); Paul McCold, Restorative Justice: An Annotated Bibliography (New York: Criminal Justice Press, 1997); and Jim Consedine, Restorative Justice: Healing the Effects of Crime (Lyttleton, New Zealand: Ploughshares, 1995).
22. Howard Zehr's, Changing Lenses: A New Focus for Crime and Justice (Scottsdale, Pennsylvania: Herald Press, 1990) is widely recognized as having defining the theoretical core of restorative justice. See also, Restorative Justice: International Perspectives, ed. Burt Galaway and Joe Hudson (New York: Criminal Justice Press, 1996); Paul McCold, Restorative Justice: An Annotated Bibliography (New York: Criminal Justice Press, 1997); and Jim Consedine, Restorative Justice: Healing the Effects of Crime (Lyttleton, New Zealand: Ploughshares, 1995).
23. Howard Zehr's, Changing Lenses: A New Focus for Crime and Justice (Scottsdale, Pennsylvania: Herald Press, 1990) is widely recognized as having defining the theoretical core of restorative justice. See also, Restorative Justice: International Perspectives, ed. Burt Galaway and Joe Hudson (New York: Criminal Justice Press, 1996); Paul McCold, Restorative Justice: An Annotated Bibliography (New York: Criminal Justice Press, 1997); and Jim Consedine, Restorative Justice: Healing the Effects of Crime (Lyttleton, New Zealand: Ploughshares, 1995).
24. For example, Sierra Leone's Truth and Reconciliation Commission aims to "heal the wounds of war," and "promote reconciliation by providing an account of violations suffered and for perpetrators to relate their experiences" (National Commission for Democracy and Human Rights in Sierra Leone, "The TRC at a Glance," 2001). An international tribunal was also created in Sierra Leone by the United Nations Security Council to try war crimes committed during Sierra Leone's civil war.
25. Jean Hampton, "The Moral Education Theory of Punishment," Philosophy and Public Affairs 13 (1984): 217. Jaime Malamud-Goti, "Transitional Governments in the Breach: Why Punish State Criminals?" Human Rights Quarterly 12 (1990): 14; Aryeh Neier, War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice (New York: Random House, 1998).
26. Jean Hampton, "The Moral Education Theory of Punishment," Philosophy and Public Affairs 13 (1984): 217. Jaime Malamud-Goti, "Transitional Governments in the Breach: Why Punish State Criminals?" Human Rights Quarterly 12 (1990): 14; Aryeh Neier, War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice (New York: Random House, 1998).
27. Jean Hampton, "The Moral Education Theory of Punishment," Philosophy and Public Affairs 13 (1984): 217. Jaime Malamud-Goti, "Transitional Governments in the Breach: Why Punish State Criminals?" Human Rights Quarterly 12 (1990): 14; Aryeh Neier, War Crimes: Brutality, Genocide, Terror, and the Struggle for Justice (New York: Random House, 1998).
28. Minow, Between Vengeance and Forgiveness, 62-64; see also Minow, "The Hope for Healing: What Can Truth Commissions Do?" in Truth V. Justice: The Morality of Truth Commissions, ed. Robert Rotberg and Dennis Thompson (Princeton: Princeton University Press, 2000), 235-60.
29. Minow, Between Vengeance and Forgiveness, 62-64; see also Minow, "The Hope for Healing: What Can Truth Commissions Do?" in Truth V. Justice: The Morality of Truth Commissions, ed. Robert Rotberg and Dennis Thompson (Princeton: Princeton University Press, 2000), 235-60.
30. Gutman and Thompson, "The Moral Foundations of Truth Commissions," in Truth v. Justice, 22.
31. Aryeh Neier, "Rethinking Truth, Justice, and Guilt after Bosnia and Rwanda," in Human Rights in Political Transitions, 45; Payam Akhavan, "Justice in the Hague, Peace in the Former Yugoslavia? A Commentary on the United States War Crimes Tribunal" Human Rights Quarterly 20 (1998): 765; Cf. Madeleine Albright, Provisional Verbatim Record of the Three Thousand Two Hundred and Seventeenth Meeting, U.N. SCOR 3217th mtg. 12 U.M. Doc. S/PV3217, 25 May, 1993; Antonio Cassesse, International Tribunal for the Former Yugoslavia: First Annual Report, (1994).
32. Aryeh Neier, "Rethinking Truth, Justice, and Guilt after Bosnia and Rwanda," in Human Rights in Political Transitions, 45; Payam Akhavan, "Justice in the Hague, Peace in the Former Yugoslavia? A Commentary on the United States War Crimes Tribunal" Human Rights Quarterly 20 (1998): 765; Cf. Madeleine Albright, Provisional Verbatim Record of the Three Thousand Two Hundred and Seventeenth Meeting, U.N. SCOR 3217th mtg. 12 U.M. Doc. S/PV3217, 25 May, 1993; Antonio Cassesse, International Tribunal for the Former Yugoslavia: First Annual Report, (1994).
33. Aryeh Neier, "Rethinking Truth, Justice, and Guilt after Bosnia and Rwanda," in Human Rights in Political Transitions, 45; Payam Akhavan, "Justice in the Hague, Peace in the Former Yugoslavia? A Commentary on the United States War Crimes Tribunal" Human Rights Quarterly 20 (1998): 765; Cf. Madeleine Albright, Provisional Verbatim Record of the Three Thousand Two Hundred and Seventeenth Meeting, U.N. SCOR 3217th mtg. 12 U.M. Doc. S/PV3217, 25 May, 1993; Antonio Cassesse, International Tribunal for the Former Yugoslavia: First Annual Report, (1994).
34. Aryeh Neier, "Rethinking Truth, Justice, and Guilt after Bosnia and Rwanda," in Human Rights in Political Transitions, 45; Payam Akhavan, "Justice in the Hague, Peace in the Former Yugoslavia? A Commentary on the United States War Crimes Tribunal" Human Rights Quarterly 20 (1998): 765; Cf. Madeleine Albright, Provisional Verbatim Record of the Three Thousand Two Hundred and Seventeenth Meeting, U.N. SCOR 3217th mtg. 12 U.M. Doc. S/PV3217, 25 May, 1993; Antonio Cassesse, International Tribunal for the Former Yugoslavia: First Annual Report, (1994).
35. Joel Feinberg, Doing and Deserving: Essays in the Theory of Responsibility (Princeton: Princeton University Press, 1970).
36. John Braithwaite, Crime, Shame and Reintegration (Cambridge: University of Cambridge Press, 1989), 54-65.
37. Boraine, A Country Unmasked, 363-64.
38. Charles Villa-Vicencio, "On Taking Responsibility," in To Remember and to Heal, ed. H. Russel Botman and Robin M. Petersen (Cape Town, Pretoria, and Johannesburg: Human and Rousseau, 1996), 133-13; Boraine, A Country Unmasked, 364. Jaspers characterizes "political guilt" as the liability of all citizens for the way in which their state is governed (The Question of German Guilt, trans. E. B. Ashton [New York: Dial Press, 1947], 31-33).
39. Charles Villa-Vicencio, "On Taking Responsibility," in To Remember and to Heal, ed. H. Russel Botman and Robin M. Petersen (Cape Town, Pretoria, and Johannesburg: Human and Rousseau, 1996), 133-13; Boraine, A Country Unmasked, 364. Jaspers characterizes "political guilt" as the liability of all citizens for the way in which their state is governed (The Question of German Guilt, trans. E. B. Ashton [New York: Dial Press, 1947], 31-33).
40. Charles Villa-Vicencio, "On Taking Responsibility," in To Remember and to Heal, ed. H. Russel Botman and Robin M. Petersen (Cape Town, Pretoria, and Johannesburg: Human and Rousseau, 1996), 133-13; Boraine, A Country Unmasked, 364. Jaspers characterizes "political guilt" as the liability of all citizens for the way in which their state is governed (The Question of German Guilt, trans. E. B. Ashton [New York: Dial Press, 1947], 31-33).
41. An important exception is Ruti Teitel's Transitional Justice, which argues, "transitional law is above all symbolic - a secular sanctification of the rituals and symbols of political passage" (220), and presents a comprehensive analysis of the role of transitional legal forms in relation to the politics of transition.
42. Braithwaite, Crime, Shame and Reintegration, 96-97.
43. For example, Mahmood Mamdani, "Reconciliation without Justice," Southern African Political and Economic Monthly 10 (1996): 22-25; Michael Ignatieff, "Articles of Faith," Index on Censorship 5 (1996): 110122; Robert Meister, "Forgiving and Forgetting: Lincoln and the Politics of National Recovery," in Human Rights in Political Transitions: Gettysburg to Bosnia, ed. Carla Hesse and Robert Post (New York: Zone, 1999); Audrey Chapman and Patrick Ball, "The Truth of Truth Commissions: Comparative Lessons from Haiti, South Africa, and Guatemala," Human Rights Quarterly 23 (2001): 1-43.
44. For example, Mahmood Mamdani, "Reconciliation without Justice," Southern African Political and Economic Monthly 10 (1996): 22-25; Michael Ignatieff, "Articles of Faith," Index on Censorship 5 (1996): 110122; Robert Meister, "Forgiving and Forgetting: Lincoln and the Politics of National Recovery," in Human Rights in Political Transitions: Gettysburg to Bosnia, ed. Carla Hesse and Robert Post (New York: Zone, 1999); Audrey Chapman and Patrick Ball, "The Truth of Truth Commissions: Comparative Lessons from Haiti, South Africa, and Guatemala," Human Rights Quarterly 23 (2001): 1-43.
45. For example, Mahmood Mamdani, "Reconciliation without Justice," Southern African Political and Economic Monthly 10 (1996): 22-25; Michael Ignatieff, "Articles of Faith," Index on Censorship 5 (1996): 110122; Robert Meister, "Forgiving and Forgetting: Lincoln and the Politics of National Recovery," in Human Rights in Political Transitions: Gettysburg to Bosnia, ed. Carla Hesse and Robert Post (New York: Zone, 1999); Audrey Chapman and Patrick Ball, "The Truth of Truth Commissions: Comparative Lessons from Haiti, South Africa, and Guatemala," Human Rights Quarterly 23 (2001): 1-43.
46. For example, Mahmood Mamdani, "Reconciliation without Justice," Southern African Political and Economic Monthly 10 (1996): 22-25; Michael Ignatieff, "Articles of Faith," Index on Censorship 5 (1996): 110122; Robert Meister, "Forgiving and Forgetting: Lincoln and the Politics of National Recovery," in Human Rights in Political Transitions: Gettysburg to Bosnia, ed. Carla Hesse and Robert Post (New York: Zone, 1999); Audrey Chapman and Patrick Ball, "The Truth of Truth Commissions: Comparative Lessons from Haiti, South Africa, and Guatemala," Human Rights Quarterly 23 (2001): 1-43.
47. Kevin I. Minor and J. T. Morrison, "A Theoretical Study and Critique of Restorative Justice," in Restorative Justice: International Perspectives, 122-23. Sally Engle Merry argues that mediated settlements between parties that are unequally situated tend to lead to unequal outcomes ("The Social Organization of Mediation in Nonindustrial Societies: Implications for Informal Community Justice in America," in The Politics of Informal Justice vol. 2, ed. Richard Abel [New York: Academic Press, 1982], 31-32).
48. Kevin I. Minor and J. T. Morrison, "A Theoretical Study and Critique of Restorative Justice," in Restorative Justice: International Perspectives, 122-23. Sally Engle Merry argues that mediated settlements between parties that are unequally situated tend to lead to unequal outcomes ("The Social Organization of Mediation in Nonindustrial Societies: Implications for Informal Community Justice in America," in The Politics of Informal Justice vol. 2, ed. Richard Abel [New York: Academic Press, 1982], 31-32).
49. Margaret Keck and Kathryn Sikkink, Activists Beyond Borders: Advocacy Networks in International Politics (Ithaca: Cornell University Press, 1998), 79-120.
50. Activists Beyond Borders, 8. Keck and Sikkink distinguish transnational advocacy networks from "epistemic communities," which are defined by shared causal ideas. See Peter Haas, "Introduction: Epistemic Communities and International Policy Coordination," International Organization 46 (1992): 1-36.
51. Activists Beyond Borders, 8. Keck and Sikkink distinguish transnational advocacy networks from "epistemic communities," which are defined by shared causal ideas. See Peter Haas, "Introduction: Epistemic Communities and International Policy Coordination," International Organization 46 (1992): 1-36.
52. In 1984, newly elected President Raul Alfonsín embarked upon a wide-ranging project to prosecute human rights abuses committed during the "Dirty War" in Argentina. The prosecutions eventually collapsed as the army launched a series of demonstrations, triggering fears of a coup. Alfonsín's successor, Carlos Menem, granted hundreds of pardons. See, Carlos Nino, "The Duty to Punish Past Human Rights Abuses Put into Context," Yale Law Journal 100 (1991): 2619-40; and David Pion-Berlin, Through Corridors of Power: Institutions and Civil-Military Relations in Argentina (University Park: Pennsylvania State University Press, 1997).
53. In 1984, newly elected President Raul Alfonsín embarked upon a wide-ranging project to prosecute human rights abuses committed during the "Dirty War" in Argentina. The prosecutions eventually collapsed as the army launched a series of demonstrations, triggering fears of a coup. Alfonsín's successor, Carlos Menem, granted hundreds of pardons. See, Carlos Nino, "The Duty to Punish Past Human Rights Abuses Put into Context," Yale Law Journal 100 (1991): 2619-40; and David Pion-Berlin, Through Corridors of Power: Institutions and Civil-Military Relations in Argentina (University Park: Pennsylvania State University Press, 1997).
54. Orentlicher, "Settling Accounts," 2549.
55. José Zalaquett, "Balancing Ethical Imperatives and Political Constraints: The Dilemmas of New Democracies Confronting Past Human Rights Violations," Hastings Law Journal 43 (1992): 1425, 1428.
56. Zalaquett, "Balancing Ethical Imperatives," 1429-30.
57. The expression makgotla was used to refer to unofficial people's courts as well as vigilante mobs. A study of makgotla in the Pretoria township of Mamelodi conducted in 1983 found that, "the majority of blacks living in townships do not turn to the official court structure for help in processing their claims or redressing their grievances. They turn instead to the unofficial agencies of justice such as makglotla" (Bennett, A Sourcebook of African Customary Law [Cape Town: Juta Press, 1991], 90).
58. Anthony Marx, Lessons of the Struggle: South African Internal Opposition, 1960-1990 (New York: Oxford University Press, 1992), 167. See also, Robert Price, The Apartheid State in Crisis: Political Transformation in South Africa 1975-1990 (New York and Oxford: Oxford University Press, 1991), 192-202.
59. Anthony Marx, Lessons of the Struggle: South African Internal Opposition, 1960-1990 (New York: Oxford University Press, 1992), 167. See also, Robert Price, The Apartheid State in Crisis: Political Transformation in South Africa 1975-1990 (New York and Oxford: Oxford University Press, 1991), 192-202.
60. Wilfried Schärf and Baba Ngcokoto, "Images of Punishment in the People's Courts of Cape Town 1985-1987: from Prefigurative Justice to Populist Violence," in Political Violence and the Struggle in South Africa ed. N. Chubani Manganyi and Andre du Toit (Johannesburg: Southern Books; London: MacMillan, 1990), 342.
61. Schärf from Democracy and the Judiciary, reprinted in Bennett, 99.
62. Tristan Anne Borer, Challenging the State: Churches as Political Actors in South Africa (Notre Dame: Notre Dame Press, 1998), 85-91.
63. The Kairos Document: Challenge to the Church: A Theological Comment on the Political Crisis in South Africa (Grand Rapids Michigan: Eerdmans, 1985).
64. Villa-Vicencio is similarly critical of formalism in Kantian ethics . See A Theology of Reconstruction (Cambridge: Cambridge University Press, 1992), 43, 79.
65. ANC Department of Political Education, The Road to Peace: Resource Material on Negotiations (1990), 52-53. For a detailed and insightful discussion of the negotiations dealing with amnesty, see Erik Doxtader, "Easy to Forget or Never (Again) Hard to Remember?" in The Provocations of Amnesty: Memory, Justice, and Impunity ed. Charles Villa-Vicencio and Erik Doxtader (Cape Town: David Philip, 2003): 121-55.
66. ANC Department of Political Education, The Road to Peace: Resource Material on Negotiations (1990), 52-53. For a detailed and insightful discussion of the negotiations dealing with amnesty, see Erik Doxtader, "Easy to Forget or Never (Again) Hard to Remember?" in The Provocations of Amnesty: Memory, Justice, and Impunity ed. Charles Villa-Vicencio and Erik Doxtader (Cape Town: David Philip, 2003): 121-55.
67. TRC Report, vol. 1, 51.
68. Joe Slovo, "Negotiations: What Room for Compromise?" African Communist 3rd Quarter (1992): 36-40.
69. U.M. Secretary- General, Boutros Boutros Ghali, released a report on August 7, 1992 that called for an amnesty for all political offenders. At around this point, Archbishop Desmond Tutu suggested that any amnesty would have to be accompanied by "full disclosure" of the past activities of the security forces. Lynn Berat and Yossi Shain, "Retribution of Truth-Telling in South Africa?: Legacies of the Transitional Phase," in Law and Social Inquiry 20 (1995): 177.
70. George Bizos, interview by author, Johannesburg, 30 March, 1999.
71. Bizos, No One to Blame?, 229-30.
72. "To promise amnesty in return for ending a civil war was justified. To say that continuing a civil war is better for justice ... is to have a very narrow conception of what justice is about"; Hofmyer, interview, Cape Town, March 6, 1999; "They said, just use a criminal justice model. This would put us at each other's throats forever" (Johnny De Lange, interview, Cape Town, March 4, 1999). See also Robert Asmal, Louise Asmal, and Suresh Roberts, Reconciliation Through Truth: A Reckoning of Apartheid's Criminal Governance (Cape Town: David Phillip Publishers, 1996), 18.
73. Interview by author, Cape Town, 6 March, 1999.
74. Interview by author, Johannesburg, 30 March, 1999.
75. Asmal et al., Reconciliation Through Truth, 19
76. For many in South Africa, this problem was exemplified by the Malan trial, which ate up vast resources and resulted in an acquittal (TRC Report, vol. 1, 123).
77. Asmal el al., Reconciliation Through Truth, 21.
78. "The Historical Context, Legal Origins, and Philosophical Foundations of the South African Truth and Reconciliation Commission," in Looking Back, Reaching Forward, 24. The potential of a truth commission as an alternative basis for investigating systematic injustices was illustrated by a commission of inquiry led by Justice Richard Goldstone (Commission of Inquiry regarding the Prevention of Public Violence and Intimidation) from 1992 through 1995. Goldstone's reports, which were initially cautious, grew increasingly critical of the government. By 1994, the Goldstone Commission confirmed the involvement of senior South African police officers in a network of criminal activity and established a prima facie case that a "third force" was operating within the military-security establishment to try to destabilize South Africa by fomenting paramilitary violence in order to halt the transition to democracy. See T. R. H. Davenport, The Birth of a New South Africa (Toronto: University of Toronto Press, 1998), 35. The ANC had also set up its own commissions to examine human rights violations among its ranks in its training camps (Hayner, Unspeakable Truths, 60).
79. "The Historical Context, Legal Origins, and Philosophical Foundations of the South African Truth and Reconciliation Commission," in Looking Back, Reaching Forward, 24. The potential of a truth commission as an alternative basis for investigating systematic injustices was illustrated by a commission of inquiry led by Justice Richard Goldstone (Commission of Inquiry regarding the Prevention of Public Violence and Intimidation) from 1992 through 1995. Goldstone's reports, which were initially cautious, grew increasingly critical of the government. By 1994, the Goldstone Commission confirmed the involvement of senior South African police officers in a network of criminal activity and established a prima facie case that a "third force" was operating within the military-security establishment to try to destabilize South Africa by fomenting paramilitary violence in order to halt the transition to democracy. See T. R. H. Davenport, The Birth of a New South Africa (Toronto: University of Toronto Press, 1998), 35. The ANC had also set up its own commissions to examine human rights violations among its ranks in its training camps (Hayner, Unspeakable Truths, 60).
80. Johnny de Lange, interview by author, Cape Town, 4 March, 1999; Willie Hofmyer, interview by author, Cape Town, 6 March, 1999.
81. The papers presented at these conferences were published in two volumes: Dealing with the Past, ed. Alex Boraine, Janet Levy, and Ronel Scheffer (Cape Town: IDASA, 1994), and The Healing of a Nation? ed. Alex Boraine and Janet Levy (Cape Town: Justice in Transition, 1994)
82. The papers presented at these conferences were published in two volumes: Dealing with the Past, ed. Alex Boraine, Janet Levy, and Ronel Scheffer (Cape Town: IDASA, 1994), and The Healing of a Nation? ed. Alex Boraine and Janet Levy (Cape Town: Justice in Transition, 1994)
83. Boraine, A Country Unmasked, 17.
84. Boraine and Levy, The Healing of a Nation? 49-55.
85. Of Zalaquett's speech on the Chilean experience with a Truth and Reconciliation Commission, Antjie Krog wrote, "[i]t takes Chilean philosopher and activist José Zalaquett... precisely seven and a half minutes to convert me to the idea," Country of My Skull, 23. Boraine also describes Zalaquett's contribution as "invaluable," A Country Unmasked, 43.
86. Of Zalaquett's speech on the Chilean experience with a Truth and Reconciliation Commission, Antjie Krog wrote, "[i]t takes Chilean philosopher and activist José Zalaquett... precisely seven and a half minutes to convert me to the idea," Country of My Skull, 23. Boraine also describes Zalaquett's contribution as "invaluable," A Country Unmasked, 43.
87. The Healing of a Nation? 34. Frank Chikane, the secretary general of the South African Council of Churches at the time stressed the role of confession and repentance in generating reconciliation (The Healing of a Nation?, 101).
88. The Healing of a Nation? 34. Frank Chikane, the secretary general of the South African Council of Churches at the time stressed the role of confession and repentance in generating reconciliation (The Healing of a Nation?, 101).
89. Hansards, Parliamentary Debate, 17 May, 1995, 1342.
90. Boraine, A Country Unmasked, 71-75.
91. "Fourth DT Lakdawala Memorial Lecture."
92. Interview by author, Stellenbosch, 10 March, 1999.
93. Jim Consedine, Restorative Justice: Healing the Effects of Crime (Lyttleton, New Zealand: Ploughshares, 1995).
94. Tutu, No Future, 55.
95. 1995 (6) BCLR 665 (CC), 671-73.
96. 1995 (6) BCLR 665 (CC), 751, 756, 759.
97. 1996 (8) BCLR 1015 (CC). The use of ubuntu in South African jurisprudence signaled a victory for the black consciousness goal of returning African philosophy to a place of prominence in South Africa. It was ironic then, that the ubuntu was invoked in the AZAPO case to reject the challenge posed on behalf of Steve Biko, the movement's most famous hero.
98. "A Different Kind of Justice," 421.
99. TRC Report vol. 1, 1
100. TRC Report vol. 1, 49.
101. TRC Report vol. 1, 110.
102. Hansards, Parliamentary Debate, 17 May, 1995, 1375.
103. Hansards, Parliamentary Debate, 17 May, 1995, 1386.
104. Brian Stuart, "Truth Probe 'Could Name Ministers'" Citizen, 25 February, 1995.
105. GA Res 2189; GA Res 39/72A; GA Res 2074; Security Council Resolution 392 (June 19, 1976); Security Council Resolution 556, 13 December, 1984. Apartheid was also characterized as a crime against humanity in judgments of the International Court of Justice, the International Law Commission, and the International Criminal Tribunal for the Former Yugoslavia (Report of the International Law Commission, 28th Sess., UN GOAR, 31st Sess., Supp. No. 10, UN Doc. A/31/10 (1976); Judgment of Tadic Case, 7 May, 1997).
106. Hansards, Parliamentary Debate, 17 May, 1995, 1381.
107. "ANC Relents on Truth Commission," Business Day 13, January, 1995.
108. ECOSOC Resolution 1235 (1967). Cherif Bassiouni has noted the absence of an accepted legal definition of the term; U.N. Commission on Human Rights, "Civil and Political Rights, Including the Question of Independence of the Judiciary, Administration of Justice, Impunity," E/CN.4/1999/65.
109. TRC Report, vol. 1, 66.
110. TRC Report, vol. 1, 112.
111. TRC Report, vol. 1, 128.
112. TRC Report, vol. 1, 283-84, 366.
113. TRC Report, vol. 5, 199.
114. Fiona C. Ross, Bearing Witness: Women and the Truth and Reconciliation Commission in South Africa (London: Pluto Press, 2003), 164.
115. TRC Youth Hearings, CT/01110 (May, 1997).
116. TRC Report, vol. 1, 148.
117. TRC Report, vol. 1, 169.
118. Chapman and Ball, "The Truth of Truth Commissions," 39.
119. Promotion of National Unity and Reconciliation Act, Chapter 2, at 3.1a.
120. TRC Amnesty Hearings (July 1996).
121. TRC Report, vol. 5, 259-60.
122. TRC Report, vol. 5, 282.
123. "HRW Welcomes Release of South African Truth Report: Criticizes Attempts to Censure Report," Press Release, October, 1998.
124. The English translation of the commission's conclusions states that, "[t]he anti-democratic nature of the Guatemalan political tradition has its roots in an economic structure, which is marked by the concentration of productive wealth in the hands of a minority. This established the foundations of a system of multiple exclusions, including elements of racism, which is, in turn, the most profound manifestation of a violent and dehumanising social system." The report adds that "the movement of Guatemala towards polarisation, militarization and civil war was not just the result of national history," and discusses the role of the United States as well as the history of colonialism in framing its findings. Commission for Historical Clarification, Memory of Silence: Report of the Commission for Historical Clarification (Guatemala City: 1999). Available: http://shr.aaas.org/guatemala/ ceh/report/english/concl.html.
125. For example, Robert Meister presents an important analysis of what he terms the "counterrevolutionary" implications of transitional justice, focusing on the South African case. Yet he treats the TRC as a static entity with a singular agenda and unified narrative. See Robert Meister and Catherine Lu, "Debate: Human Rights and the Politics of Victimhood," Ethics and International Affairs 16 (2002): 91-126.
126. National Unity and Reconciliation Act, 3(a).
127. TRC Report, vol. 4, 101.
128. TRC Report, vol. 4, 188.
129. TRC Report, vol. 4, 71.
130. TRC Report, vol. 4, 34.
131. TRC Report, vol. 5, 125.
132. TRC Report.vol. 5, 157-60.
133. Sachs, "Fourth DT Lakdawala Memorial Lecture," 12.
134. Vol. 1, 133.
135. Vol. 4, 43. the final addition to the TRC Report, released in March of 2003, recommends that all beneficiaries contribute to a reparation fund for victims (Truth and Reconciliation Commission of south Africa Report [Cape Town: Juta, 2003], Vol. 6, 8).
136. Vol. 4, 43. the final addition to the TRC Report, released in March of 2003, recommends that all beneficiaries contribute to a reparation fund for victims (Truth and Reconciliation Commission of south Africa Report [Cape Town: Juta, 2003], Vol. 6, 8).
137. TRC Report, vol. 5.
138. TRC Report, vol. 5, 366. Ngewu's son was killed by the South African Security Police in a famous incident known as the "Gugulethu 7."
139. TRC Report, vol. 5, 375.