Transition and the reasons of memory

South Atlantic Quarterly

Volumn 103, Issue 4, 2004, Pages 755-768

  Eze, Emmanuel Chukwudi ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 60950411259     PISSN: 00382876     EISSN: 15278026     Source Type: Journal    
DOI: 10.1215/00382876-103-4-755     Document Type: Review

References (24)

1. David A. Crocker, "Truth Commissions, Transnational Justice, and Civil Society," in Truth v. Justice: The Morality of Truth Commissions, ed. Dennis Thompson and Robert I. Rotberg (Princeton: Princeton University Press, 2000), 100; emphasis added
2. Richard A. Wilson, The Politics of Reconciliation in South Africa: Legitimizing the Post-Apartheid State, goes as far as to call this a doctrine of the "human right to a human story" (Cambridge: Cambridge University Press, 2001, 56)
3. Wole Soyinka, The Burden of Memory, the Muse of Forgiveness (New York: Oxford University Press, 1999), 33; emphasis added
4. Two dominant perspectives on justice in transitional democratic societies are evident, and are quite representative. For convenience I shall characterize these perspectives as universalist moral approach to democratic constitutional justice and morally contextualist approach to democratic justice. The former, represented by Dennis Thompson and Amy Gutmann in "The Moral Foundations of Truth Commissions," argues from a universal moral principle of democratic constitutional justice, especially the requirement of the due process: "The pursuit of justice does not presuppose a retributive view of punishment. It means only bring individuals to trial who are credibly alleged to have committed crimes and a seeking of a legal verdict and an appropriate punishment if they are found guilty." Under this perspective, one must conclude, therefore, that "in a democratic society, and especially in a society that is trying to overcome injustices of the past, trading criminal justice for a general social benefit such as social reconciliation requires a moral defense if it is to be acceptable." The second perspective, represented by du Toit in his essay "The Moral Foundations of the South African TRC: Truth as Acknowledgment and Justice as Recognition," however, contextualizes even the moral foundation of this requirement of due process: "Transitional justice need not be construed as a moral compromise, sacrificing justice for the sake of truth and reconciliation. The moral foundations of truth commissions require a closer consideration of the distinctive features and requirements of the circumstances of transitional justice, in addition to the general moral considerations underlying notions of justice familiar to established liberal societies." I call this contextualist because, on the basis largely of the South African example, du Toit argues that, "consistent with justice itself, understanding the moral foundations of truth commissions may require different principles applied in fundamentally different kinds of historical circumstances." Both perspectives, nevertheless, appeal to principle, morality, and democracy. They are principled because of the nonarbitrary derivations of their moral terms of reference; they are moral because they are predicated on the desire of associated individuals to live together in society by treating one another with respect and dignity; and they are democratic because they are based on an idea of the polity as governed by equality of rights, equality before the law, and so forth (see Thompson and Gutmann, "The Moral Foundations of Truth Commissions,"
5. and du Toit, "The Moral Foundations of the South African TRC,"
6. both in Thompson and Rotberg, Truth v. Justice, 123-24)
7. The main focus of my discussion in this section is on the moral meanings of forgiveness in relation to transitional justice, not democracy. But as David A. Crocker observed, justice or democracy may be called "transitional" precisely because it is a process whereby "a fledging democracy reckon[s] with severe human rights abuses that earlier authoritarian regimes, their opponents, or combatants in an internal armed conflict have committed." This approach to justice, it is believed, is necessary because it seems to be the most suitable, if not the only reasonable, way for the emerging democracies "to respond appropriately to past evils without undermining the new democracy or jeopardizing prospects for future development" (Crocker, "Truth Commissions, Transitional Justice, and Civil Society," 100)
8. Charles Villa-Vicencio, "The Perpetrators Should Not Always Be Prosecuted: Where the International Criminal Court and Truth Commissions Meet,", Emory Law Journal 49 (2000): 101-18; quotation on 113
9. Carlos Nino, "The Duty to Punish Past Abuses of Human Rights Put into Context: The Case of Argentina," Yale Law Journal 100 (1991): 2619-40
10. quoted in Linda van de Vijver, "The Amnesty Process," in After the TRC: Reflections on Truth and Reconciliation in South Africa, ed. Wilmot James and Linda van de Vijver (Cape Town: David Philip Publishers, 2000), 134
11. AZAPO v. President of the Republic of South Africa, 1027-28
12. Desmond Tutu, foreword to the Truth and Reconciliation Commission, TRC Report, vol. 1 (Johannesburg: Truth and Reconciliation Commission, 2003), 12
13. Exhaustive studies have been made about the forgivability or unforgivablity of apartheid. In addition to the essays in Truth v. Justice, see especially Wilson, The Politics of Reconciliation in South Africa. The main argument of this book, based on anthropological research, is essentially that while a religious constituency "largely embraced the [TRC's] religious-redemptive language of reconciliation," either this understanding or its effect on the rest of the population, especially urban, African communities that most suffered the civil and criminal violations by instruments of the apartheid state, preferred the "popular idea of justice as retribution" (ii). Other important studies are James and Van de Vijver, After the TRC: Reflections on Truth and Reconciliation in South Africa
14. Anthea Jeffrey, The Truth about the Truth and Reconciliation Commission (Johannesburg: South African Institute of Race Relations, 1999)
15. and Walter Johnson, Dismantling Apartheid (Ithaca: Cornell University Press, 1994)
16. see Derrida, "On Forgiveness," in Derrida, On Cosmopolitanism and Forgiveness, trans. Mark Dooley and Michael Hughes (New York: Routledge, 2002), 32
17. Fredrick van Zyl Slabbert, "Truth without Reconciliation, Reconciliation without Truth," in James and Van de Vijver, After the TRC, 62-72; quotation on 68; emphasis added
18. Derrida, On Cosmopolitanism and Forgiveness, 42
19. Van Zyl Slabbert, "Truth without Reconciliation."
20. Njabulo Ndebele, "Of Lions and Rabbits: Thoughts on Democracy and Reconciliation," in James and Van de Vijver, After the TRC, 143-54; quotation on 146, 147
21. Dumisa Ntsebeza, "A Lot More to Live For," in James and Van de Vijver, After the TRC, 101-6; quotation on 101
22. It is, in fact, precisely in this sense that du Toit compared some aspects of truth-commissioning to constitution-making: "As historical founding projects, truth-commissions may be compared to constitution-making. Similar to a constitutional assembly, charged with the task of drawing up a new constitution, the TRC was not a permanent institution, but was meant to facilitate the launching of a new era. Unlike the [presumably entirely] forward-looking founding function of establish a constitution, the founding missions of truth commissions is also [and thus need not be exclusively] backward-looking." Thus, as the "conjunction of the TRC and the Constitutional Assembly demonstrates in the South African case, these were not mutually exclusive alternatives," because "if truth commissions are backward-looking, they are so precisely as historical founding projects; they deal with the past not for its sake but in order to cleat the way for a new beginning" (du Toit, "Moral Foundations," 123)
23. Njabulo Ndebele, "Of Lions and Rabbits," 152
24. Mamphela Ramphele, "Law, Corruption, and Morality," in James and Van de Vijver, After the TRC, 172-74; quotation on 173-74