By Ronald Suresh Roberts
How, and how far, did South Africa after 1994 seek to confront, or to bury, it’s past? I question not merely our memory of apartheid, but also our meta-memory of it: our memory of whether, and precisely how, we once tried to remember it.
It seems that many of us no longer remember what it was that we talked about, twenty years ago, when we talked about “reconciliation”. Therefore, our body politic now practises dismembered memory, much as the apartheid hit squads of the “Civil Cooperation Bureau” dismembered each victim’s corpse.
The first step in explaining or debating the Truth and Reconciliation Commission’s (TRC’s) success or failure is accurately to recall what the ANC in fact talked about while establishing it. Business Day columnist Jonny Steinberg, for example, thinks he understands “the dark side of Mandela’s politics of reconciliation” as “an egregious devaluing of black life”. To prosecute this point, Steinberg makes a fairly unhinged move from his legitimate observation that “farm murders” are a statistical misnomer, to his fashionable conclusion that “in its quest to show white people that it took their fears seriously, [Mandela’s] government tortured the numbers [ie statistics] to lie.” (27 April, 2018).
Time then for a refresher course in what reconciliation really meant.
In the previous instalment of this series (“Property Rights and Wrongs”), I noticed that “the noisy amnesiacs of twitter and the talk shows now seek to rewrite the 1996 Mandela-Mbeki ANC as an ideological captive of sentimental togetherness. They for instance conflate Mandela’s ANC with Desmond Tutu’s Rainbowism.” I suggested that such critics “need at least to reckon with the actual historical record, in which the ANC vigorously contested where Tutu and his illiberal Deputy, Alex Boraine, ended up in their final TRC report.”
Where sentimental togetherness sacrifices justice for reconciliation, the pre-Polokwane ANC countenanced no such thing, whether in its August 1996 TRC submission or during the TRC testimony and debates concerning how to define and characterise the human rights violations of the past.
In her canonical TRC memoir, Country of My Skull (1998), Antjie Krog reports upon her attendance at the October 1996 launch of Reconciliation Through Truth: A Reckoning of Apartheid’s Criminal Governance (RTT), a prominent articulation of the ANC’s truth and reconciliation logic, which I co-authored with Kader and Louise Asmal. In RTT, Krog noticed, we “spell out that, contrary to the claim made by the Commissioners, there is no imperative in the [TRC] legislation not to make any distinction between the perpetrators and the victims of the two sides. It is not a question of bad apples on both sides . . . it is a question of a bad tree, a weed, on the one hand, and an apple tree on the other.”
Far from embracing any kind of forgetting, Kader Asmal and I had, two years earlier, co-authored a New York Times op-ed piece entitled “Apartheid Lives On” (29 October, 1994). There we emphasised the immediate need to deepen a second revolution of socio-economic rights as the negotiations over the final constitution got underway (“Prepare Now for the Second Revolution”, the Mail & Guardian headlined the local version of that piece, 30 September, 1994). Two years before that, in a 1992 University of the UWC Lecture that inaugurated the entire post-apartheid discourse of reconciliation, Asmal had already argued that reconciliation could not mean historical “whitewashing”, or “a past mysteriously purged of apartheid” (“Victims, Survivors and Citizens —Human Rights, Reparations and Reconciliation”).
It was thus abundantly clear that reconciliation must be fundamentally transformative. Krog noticed: “It is obvious from [Mbeki’s] well-formulated speech [at the 1996 RTT book launch] that the days of visiting Betsie Verwoerd and drinking tea with Afrikaner tannies are over. The days of bending backwards to accommodate, of gritting teeth in tolerance, are over. Reconciliation will only be possible if whites say: Apartheid was evil and we were responsible for it. Resisting it was justified—even if excesses occurred within this framework. Mbeki says that if this acknowledgement is not forthcoming, reconciliation is no longer on the table.” [Krog, 86-87].
Merely scan the chapter headings of RTT (led off by President Mandela’s Foreword on the official letterhead of his Presidency) and you simply cannot miss this insistence: “Achieving Justice Through Truth”, “Acknowledging the Illegitimacy of Apartheid”, “Stark Opposites: Apartheid and the Resistance to it”, “The Need to Decriminalise the Resistance”, “Acknowledging the Need for Corrective Action”, “Confronting the Roots of Violence”, “Acknowledging the Humanity of the Resistance”, “The Morality of Armed Resistance” and so on. Our chapter on “Achieving Genuine Reconciliation” expressly contested right wing assertions that “reconciliation means painless forgetting”:
This is a fundamental misunderstanding of the entire concept of reconciliation. If this false view of reconciliation prevails, the South African majority will once more be required to swallow their anguish and defer to false history. Like the battered wife who blames herself for her husband’s violence, the oppressed would be expected just to grin and bear it, while historical falsehoods continue unchecked. (RTT, 46)
The Asmals and I specifically quoted—and rebuffed—FW de Klerk’s haughty declaration in October 1992 that a future government should not “alter or undo what we have done in the spirit of reconciliation and the maintaining of security and stability in South Africa.” We commented: “This idea—that unilateral action by an apartheid government [in 1992] could constitute ‘reconciliation’—is a dizzying contradiction” because “the essence of reconciliation is a renunciation of the past and an inducing of the South African privileged to accept unwelcome facts about their past.” (RTT, 51).
What Happened? Illiberal Policy Capture
Nevertheless, it became clear by mid-1997 that the internal deliberations of the TRC were increasingly captured by an illiberal logic, soft on socio-economic abuses, and led by Deputy Commissioner Alex Boraine. I critiqued the TRC’s illiberal turn in a Mail & Guardian article headlined “Call Big Business to Account” (4 July 1997: https://mg.co.za/article/1997-07-04-call-big-business-to-account):
In fitfully limiting its focus to activities unlawful under apartheid’s own laws, the commission ignores parts of its statutory mandate: the systematic severe ill-treatment, often “lawful” and committed by private parties, that was apartheid’s bedrock. Upon his appointment as the commission’s vice-chair, Alex Boraine, formerly an Anglo American-funded liberal in the apartheid Parliament, said a major goal of the truth body was to “restore” the rule of law. He apparently envisages a return to a Smutsian golden era, when the rule of law supposedly prevailed. Such liberal assumptions hang like a blight over the commission’s work.
By November 1997, grudgingly accommodating such pressures, the TRC timidly convened business leaders. Tutu absented himself while Boraine presided, super-courteously, like a man who knew his proper place. In her testimony, the illiberal think-tank savant, Ann Bernstein, openly advocated reconciliation-as-impunity and also as amorality, insisting that “corporations are not institutions established for moral purposes … Life is not a morality play,” and adding that business will “find ways and means to make money under almost any political regime”. (see my “Defending Spoils of Apartheid,” Mail & Guardian, 14 November 1997: https://mg.co.za/article/1997-11-14-defending-spoils-of-apartheid)
In his Presidential Report to the ANC’s 50th National Conference in Mahikeng (December 1997), President Mandela very conspicuously critiqued the “determined effort to define the process of national reconciliation . . . in a manner that would result in the protection of the positions of those who were privileged by the apartheid system.” This formed part of Mandela’s wide-ranging indictment of the role played by the media and foreign-funded nongovernmental organisations in frustrating genuine reconciliation. (People urgently need to re-read Mandela’s Mahikeng address).
Deputy President Mbeki ultimately revisited both this theme and our RTT book in his “Statement on The Report of the TRC to Joint Sitting of the Houses of Parliament,” February 1999. Mbeki again highlighted that genuine reconciliation required a renunciation of apartheid and a simple vindication of those who opposed it. Mbeki summed up colonial violence back to Jan van Riebeeck, and insisted that “any attempt to insulate or isolate the more narrowly defined work of the TRC from this larger setting will inevitably defeat the very purposes for which the TRC was established.”
Crucially, Mbeki announced the ANC’s rejection of TRC findings where the net effect was “to deligitimise or criminalise a significant part of the struggle of our people for liberation and to subtract from the commitment made in our Constitution to ‘honour those who suffered for justice and freedom in our land’…” Beyond parliamentary rhetoric, I pause to underline, the ANC actually sued the TRC on this point! Mbeki explained: “National unity and reconciliation in our country cannot be based on the denunciation of important parts of our struggle, which were themselves firmly based on the Geneva Conventions and Protocols, as gross violations of human rights.” Mbeki quoted RTT where the Asmals and I had written:
Reconciliation requires an acknowledgement of wrongs committed and a re-evaluation by their perpetrators of the morality which lay behind them. Only then can reconciliation trigger real catharsis, a word which, in its original Greek meaning, contains the ideas of purification and spiritual renewal. Reconciliation, accurately conceived, must bring about a rupture with the skewed ethics (sic) of apartheid, and so upset any possibility of smooth sailing on a previously immoral course. (p 47-8).
The TRC flatly refused to meet the ANC to discuss the matter, Mbeki reported to this joint sitting of Parliament, and “an appeal to the courts to assist in this matter resulted in unfortunate and gratuitous insults being made about freedom fighters being tomorrow’s tyrants.”
Any credible account of post-1994 “policy capture” will necessarily include the story of how the TRC’s Deputy Chairperson Alex Boraine, a former Anglo American public relations official and illiberal parliamentarian, worked with others to divert the TRC’s transformative agenda towards a narrow focus upon individualised human rights abuses supposedly committed “by both sides”. The TRC indeed ultimately sacrificed justice through its narrowed conception of reconciliation. And it gave birth to a global “transitional justice” industry that even today systematically marginalises necessary critiques of colonial violence all over the world – both points I long ago underlined in my book review of Boraine’s memoir, A Country Unmasked (Sunday Independent, 22 October 2000, p. 18). Obviously, none of this expressed the Mandela-Mbeki ANC’s intentions in establishing the TRC.
Conclusion: The Politics of Legal Interpretation
Signalling from the very outset how genuine reconciliation must overturn inherited colonial and apartheid common sense, RTT took as its epigraph a Rivonia Trial exchange between Nelson Mandela and apartheid prosecutor, Percy Yutar:
Mandela: “The Government should be in the dock, not me. I plead not guilty.”
Yutar: “All right, let’s forget about moral guilt.”
We all thought the TRC would vindicate the moral ground staked out by Mandela in this epic colloquy. Instead, as the TRC Report was published, Boraine invited everyone to discover what he fatuously called “the little perpetrator within”.
The impact of the TRC legislation, like that of the radical 1996 constitutional property clause, was incrementally undone by the granular bureaucratic and judicial interpretations of the 1990s, as practiced by Derek Hanekom and Geoff Budlender (on land) and by Boraine and Tutu (on reconciliation). This opens up the need for much closer attention to the judicial and bureaucratic politics of interpretation of the last two decades, to which I will turn in a subsequent instalment of this newsletter.
For now, I simply signal a direction by pointing to the 2011 case of The Citizen v. Mc Bride, where (as I wrote at the time) the country faced “the disgraceful spectacle of the Constitutional Court appealing to the archives of the apartheid criminal court in order to uphold a newspaper’s statement that freedom fighter Robert McBride was a ‘murderer’ … The Constitutional Court took it as axiomatic that McBride could without libel be termed a ‘murderer’ in a post-1994 sense because he had been convicted as such by a pre-1994 apartheid court. In reasoning thus, the Court managed to overturn one of the central logical planks of the legislation that established the truth commission.” (see “Forgetting the Truth”, The Thinker 29, July 2011: https://tinyurl.com/zf3pb96). Watch this space.
**Roberts co-authored Reconciliation Through Truth: A Reckoning of Apartheid’s Criminal Governance (1996) authored Fit to Govern: The Native Intelligence of Thabo Mbeki (2007).