A Country Unmasked: Inside South Africa's Truth and Reconciliation Commission
by Alex Boraine
Oxford, England: Oxford University Press, 2000 (466 pages)
A Country Unmasked recounts the history of the Truth and Reconciliation Commission in the Republic of South Africa. The Commission was established in the mid-1990s to take testimony from those who had suffered political violence under the apartheid regime. The Commission also established a structure offering limited amnesty to those who had committed political crimes under the old regime. This account, written by Alex Boraine, who served as the deputy chairperson of the Commission, is itself an important document in the area of transitional justice—a field of work which grapples with how emerging democracies can deal with those involved in the crimes and abuses of former regimes. What form should accountability take? To what degree should individuals be held responsible for actions carried out as agents of the state? How might those who suffered immense losses receive justice? In its transformation from a state in which the legal structures of racial inequality had led to widespread violence into a representative democracy with enfranchisement for all races, South Africa has had to confront these questions.
In 1990, after decades of state repression of black civil rights struggles, the South African government released Nelson Mandela, the black African leader who had been imprisoned for twenty-seven years. This marked the change to a politics of negotiation that would lead to the end of apartheid. By 1994, an interim constitution had been adopted as the country made the transition to a true participatory democracy.
The idea for the Truth and Reconciliation Commission (TRC) was proposed at that point, just before the first democratic election, through which Mandela became President and a representative Parliament was established. The interim constitution had made provision for the granting of limited amnesty to those culpable for actions during the apartheid period. The newly elected parliament created the TRC to investigate and establish the truth about human rights violations occurring between 1960 and 1994, to recommend measures for reparation to victims, to receive applications for amnesty, to prepare a report on the investigations and the historical context and to recommend legal and administrative measures to prevent future gross human rights violations.
At the time of its creation the TRC was unique in its formation: it provided a forum for those hurt by serious human rights violations to tell their stories, and it put in place a process for awarding limited amnesty under closely structured conditions—one of which was full disclosure by the applicant about the nature of the crimes. In short, the underlying purpose of the TRC was to start the building of a human rights culture, with respect for the rule of law, on a foundation of truth about the past. Other models of transitional justice were considered unworkable for South Africa. Mass criminal trials would have impeded the development of the new state; on the other hand, there had been too much suffering for a blanket amnesty.
Alex Boraine was one of the white leaders in the struggle to dismantle apartheid and one of the first to articulate the possibility of a truth-finding commission as a means for confronting the grave injustices that had been committed. Like many involved in the fight against the old regime, he had first been active in church work, as a Methodist minister. Later he carried his ministry into the business world and the wider national political arena. A passage from the philosopher Soren Kierkegaard provides the title for this book: "Are you not aware that there comes a midnight hour when everyone must unmask…. Are you not dismayed by it?"
Boraine presents the history of the TRC straightforwardly, striving for clarity and thoroughness. This is a document written by an organizer, someone who is primarily a builder rather than a philosopher, historian or theoretician. He has drawn upon the journal he kept during the lifetime of the Commission as well as public documents and press accounts. In framing his account, he also refers to other works in transitional justice. There is an air of openness around his presentation. He emphasizes that this is his interpretation of the work of the Commission and that there is a need for other accounts from different perspectives.
The TRC was designed to be independent—from the presidency, the government and the African National Congress, which had become the ruling party. It was an investigative body, with powers of search and seizure, but it did not conduct trials and it did not supplant the criminal justice process. The work of the Commission was subject to judicial review and many of its actions and decisions were challenged in the courts.
The Commission engendered controversy from the beginning. Some voices maintained that the work of the TRC would result in a government-manufactured version of the truth. In response to this criticism, Boraine points to the structural and investigative independence of the body. He also repeatedly emphasizes that he himself has never viewed the work of the TRC as assembling the complete, sovereign truth regarding human rights violations under apartheid, but rather as a beginning effort.
The TRC's procedures for granting amnesty to those accepting guilt for human rights violations were particularly controversial. Some argued that amnesty for human rights violators should be considered under more strictly judicial forms than that of the Commission. From another perspective, the South African police, who had opposed the formation of the Commission, called for judgments of collective responsibility for acts of violence. (Many police did, however, eventually seek amnesty through the Commission.)
In following the course of the major controversies, Boraine discusses the underlying political, philosophical and legal conflicts and the pragmatic administrative considerations—the limitations on time and money, the inevitable clashes of personality—behind the TRC's decisions and actions. Herein lies much of the value of the book as a study in transitional justice. His methodical treatment of the tangle of legal and historical issues surrounding the question of amnesty is the account of someone who has had to weigh abstractions against political realities and put day-to-day procedures in place.
The seventeen-member Commission, selected after extensive public hearings, included political figures, religious leaders, medical professionals and lawyers—men and women of all races. Archbishop Desmond Tutu served as chairperson. A large administrative staff, including investigative and research units, facilitated the work of the Commission.
It was an immense administrative enterprise. Offices and communication lines had to be established in locations throughout the country. It was necessary to make arrangements for simultaneous translators so that victims could testify in their own languages. "Briefers" were assigned to assist and guide victims through their appearances before the Commission. Legal assistance for indigent participants needed to be arranged. Security for participants was always a concern.
Boraine admits that it took a while to work out details. There were many problems in the first months of hearings. Some of the administrative challenges involved the very nature of the Commission's work. In particular there were the serious due process questions of how to provide notice to individuals who might be accused during public testimony from a victim and to what extent a victim's statement might be challenged at the hearing. After the courts ruled against the procedures followed in early cases, the Commission began to notify in advance of public testimony anyone implicated or accused in a victim's statement.
The Commission publicized its work broadly in all areas of the large country and functioned on a decentralized basis to facilitate ease of access for everyone who wished to testify. It took statements and testimony in small towns and rural enclaves as well as in major urban centers. Hearings were open to the public and press, with cameras and recorders permitted. Boraine considers the Commission's emphasis on maintaining a fearless transparency in its procedures to have been one of its strengths.
This was the secret of the Commission—no stern-faced officials sitting in a private chamber, but a stage, a handful of black and white men and women listening to stories of horror, of deep sorrow, amazing fortitude and heroism.
Not everyone who gave a statement could have a public hearing. For these, the Commission selected a representative group based on the types of victims, places, occasions and dates, to provide a mix for the nation's hearing.
Media coverage was intense, from both the South African media and the international press. Radio stations broadcast hearings on a regular basis, making it possible for those in even the most remote areas of the country, where illiteracy is widespread and education levels low, to witness the work of the Commission. Boraine expresses gratitude for the press coverage, viewing it as vital to the success of the Commission, even though it also meant that internal problems of the body played out in the press (including charges of racism within the TRC itself).
Because apartheid had been woven through all of South African life, in addition to taking testimony regarding individuals, the Commission also conducted hearings on the policies and actions of political parties and other institutions—the police, business, labor, the health system, prisons, the legal community and the media. One gap in these institutional hearings was that members of the judiciary from the old system did not appear and were not subpoenaed. In retrospect, Boraine considers this a serious shortcoming in the work of the Commission.
During its two and a half years of work the Commission accepted and investigated statements from over 21,000 victims—almost 87 percent from the black population. The violence had resulted in the deaths of more men than women, so the survivors testifying to the loss of husbands and fathers and sons were more often women. And they themselves had often been harassed, detained, raped and tortured.
The statements included nearly 38,000 allegations of serious human rights crimes, of which 10,000 were killings. Nearly 8,000 people applied for amnesty. Boraine provides these and other figures, but he warns against placing too much emphasis on describing the work of the TRC in numbers:
…those who came to the Commission cannot be confined and circumscribed by statistics. They were so many, they were so different, most were so poor, so full of anguish, so desperate to tell their stories, that it loses something to classify them as male or female, black or white, young or old.
One of the most serious and sustained criticisms of the TRC was that its work seemed to equate rights violations committed by the individuals and parties involved in the liberation movement with those committed by the state. Boraine very carefully considers the accusation that the Commission was guilty of an "artificial even-handedness" in its insistence on hearing and investigating the accusations of abuse committed by both sides in the struggle and presenting these findings in its final report. In reply, he states that while the violations committed by those working as agents of state power far outweighed those committed by those struggling to overcome apartheid, it was necessary in a true record to acknowledge that crimes had been committed on both sides of the struggle.
The Commission failed to achieve much in the area of reparations for victims, but its final report articulated the responsibility of both the state and the private sector to work toward economic justice. Progress toward overcoming the heritage of apartheid will inevitably be tied to redressing the badly skewed economy under which a few have lived very well while many have existed in extreme poverty. Boraine sees this process as one of the goals of the new state, articulated in its seminal documents.
In his last chapters Boraine goes beyond the experience of the TRC to look briefly at other situations in the world in which some sort of transitional structure is required for positive political and judicial systems to grow where there has been a history of violence and an absence of functioning institutions. This discussion and the broadly selected bibliography of international writings on transitional justice serve to place the South African experience in a world context. Boraine believes that while the history of South Africa and the TRC can perhaps offer guidance, it cannot be a model for all situations. He looks at other models of transitional justice as they have emerged in different countries and regions. Interestingly, he is most hesitant in his discussion of international tribunals, such as that in the Hague. While he concedes that these tribunals have legitimacy, he is not certain they will address the rebuilding, or building, of societies in places such as Bosnia or Rwanda. As someone who actively works more and more in the transitional justice arena on an international basis, his own focus is always on advancing, getting beyond the horrors. He sees this as the goal of transitional justice structures, rather than just a settling of accounts. By nature he advocates more for restorative justice than retributive.
In its careful, earnest review of the TRC, A Country Unmasked is itself an example of its author's belief in the constructive power of an individual's story.
Antonia Moras is the editor of the Alaska Justice Forum.