What Sri Lanka must know about South Africa’s Truth and Reconciliation Commission

– by Shenali D Waduge –

There appears to be a growing momentum to push Sri Lanka’s leaders to think that it can save its skin once again by committing itself to yet another Commission. This time it is to follow the model of South Africa’s Truth and Reconciliation. While Sri Lanka suffered 30 years of terrorism South Africa suffered from apartheid where a handful of whites ruled over the indigenous blacks. Contrary to the policy of apartheid itself and despite the country’s greatest hero late Nelson Mandela himself spending most of his life in prison, the bulk of murders committed in South Africa were not by whites but by members of Mandela’s own party the African National Congress. It is the guilt of these crimes of both parties that found compromise in agreeing to the Church-amnesty system found in the South African TRC model of all to be forgiven for confessions – we now question how far the model has any relevance to us and why we should even consider following it when the South African Commission itself revealed in 1999 that it had failed.

It was in April 2013 that the head of South Africa’s Truth and Reconciliation Commission declared that “South African society is now more violent than it was under apartheid.” … “Very simply, we have become one of the most violent societies. That is not what we were even under apartheid, but we are now.”  – so said Desmond Tutu.

The question now is how different or how safe is South Africa for both Blacks and Whites after apartheid? In a population of 42million people of which the Whites comprise just 8% an average of 59 murders, 145 rapes and 752 serious assaults takes place on a daily basis. 12% of South Africans are HIV positive cases.

From 1948 to 1994 violent deaths averaged 400 a year. By 2000 under ANC 20,000 are said to have been murdered.

The colonial British records reveal the population of South Africa in 1900 to be 3.5million. By 1954 the population reached 8.5million and by 1900 the population was 35million.

Max Coleman’s (member of the Human Rights Committee) authoritative analysis ‘a crime against humanity; analyzing repression of the Apartheid State’ claims that 21,000 deaths occurred due to political violence from 1948 to 1994 but 14,000 died during the transition process from 1990-1994. His book lists incidents, dates and those involved yet 92% of the deaths have been Africans killing Africans (inter-tribal battles). Thus 8580 of the 9325 deaths between Jun 1990 to Jul 1993 were by Africans killing themselves. The South African Security forces are accused of 518 deaths.

The HRC submitted its apartheid repression book to the South African TRC with statistics that detailed 80,000 detentions without trial for 3 years, detention of 10,000 women and 15,000 children under 18 years, 73 deaths in detention and 7000 political deaths between 1948 and 1989 including 46 massacres.

Albert Brenner in his ‘How evil was apartheid’ questions how evil can be measured and judged. He asks if the Universal Declaration of Human Rights is the final arbiter of evil how it could judge who was more evil – Zimbabwe, China or Saudi Arabia in the light of the West accusing these nations of rights violations but having ties with them irrespective. In so saying Brenner goes on to say that fewer than 2000 people were deliberately killed by security forces in South Africa during the 42 years of apartheid. (This is contentious because white rulers would not have recorded all deaths). The total deaths during apartheid is said to be 20,000 of which he too says the majority were black-on-black deaths. What Brenner is doing is to question the 4million genocide figure.

He thus questions apartheids 2000 death in 42 years against the 2million killed by Pol Pot and 1million killed in Rwanda within 3 months.

Let us look at key points in South Africa’s Truth and Reconciliation Commission

http://www.info.gov.za/otherdocs/2003/trc/

• Apartheid was a system legally enforcing racial segregation in South Africa between 1948 and 1990 – authoritarian and repressive white majority rule
• Institutionalized racism stripped native South African blacks of their civil and political rights. Resistance was met with police brutality, administrative detention, torture, no freedom of expression and banning of all native groups like the African National Congress. European white colonial rule under National Party prevailed.
• International sanctions and negotiations led to elections in 1994 and the election of Nelson Mandela as President.
• The change from white majority rule came with concessions and compromise. The compromise came because the white minority government desired amnesty – negotiation agenda omitted justice and accountability for human rights violations that were central to the apartheid struggle. Over 14,000 people were said to have been killed during the 4 year negotiation period. 2 Judicial Commissions of Inquiry was established – 1990 Harns Commission to probe allegations of police and military ‘hitsquads’. 1991 Goldstone Commission
• Negotiations and processes were looked at within South Africa’s existing legal framework
• In 1999 ANC accepted there would not be any trials for apartheid crimes and was prepared to compromise on the principle of amnesty (but was not prepared to tie itself to a specific amnesty deal) Thus the interim Constitution included a specific provision for amnesty in the preamble – no detail was given as to what this would entail and no commitment given to examine conflicts of the past.
• New legislation was formulated by a select group of civil society activists/organizations within the NGO sector and the Church.
• Civil society groups objected to recommendations by ANC for amnesty hearings to be held in camera.
• Draft Bill published in October 1994, received Cabinet approval and referred to cabinet sub-committee for amendments and final drafting. Bill introduced to Parliament in December 1994, public given 5 weeks to comment. Civil society lobbied against secrecy provisions. The Bill was signed into law on 19 July 1995.
• TRC mandate was “to provide for the investigation and the establishment of as complete a picture as possible of the nature and extent of all gross violations of human rights committed within or outside the Republic during the period 1 March 1996 to 5 December 1993, and emanating from the conflicts of the past, and of the fate or whereabouts of the victims of such violations; the granting of amnesty to certain persons in respect of acts associated with political objectives committed during the said period; the taking of measures aimed at the restoration of human and civil dignity and the rehabilitation of victims of gross violations of human rights; the reporting to the Nation about such violations and victims; the making of recommendations aimed at the prevention of the commission of gross violations of human rights.”
• TRC was given ONLY 24 months (2 years) to complete its task – no provision was made to prepare staff to be recruited, establish structure and strategy. Mandela appointed the Commissioners. Mandela chose not to opt for the option of appointing international commissioners. The whites were over-represented with 6 positions. 7 women were appointed including the Chairperson, 3 Christian ministers.
• The 3 Committees comprised of
  1. Human Rights Violations Committee – a) conduct nationwide public hearings for victims to testify about violations b) conduct research and investigation into relevant gross human rights violations to address individual cases
  2. Amnesty Committee – to grant amnesty on criteria based on disclosure, political nature of act, time period of crime committed, proportionality between nature of offence and related objective.
  3. Reparation and Rehabilitation Committee – developing comprehensive recommendations for Government on reparation policy and its implementation.
• South Africans were opposed to detailed introspection of the past because they were either functionaries or beneficiaries of the apartheid system (including security forces)
• Many in the white society of South Africa while not being directly responsible for acts of white brutality upon blacks indirectly benefitted from the apartheid system – no different to how Tamil civilians though not members of the LTTE have indirectly benefitted.
• Bulk of the ordinary South Africans who were direct victims of apartheid repression had not been consulted during the legislative drafting process.
• Thus those who sought redress through criminal justice system opposed the conditional amnesty provisions in South Africa’s Truth and Reconciliation Commission (ex: AZAPO case – the newly formed Constitutional Council upheld constitutionality of removing the victims right to legal redress)
• South Africa’s TRC was bound by a new untested framework attempting to provide fundamental rights to South Africans which resulted in perpetrators of violations seeking the protections and leading to many legal issues.
• Is repentance necessary for forgiveness or can forgiveness come about without repentance and for what reasons should these be dictated by the Church and its beliefs only?
• Overtly Christian nature of the TRC – its Chairman Desmond Tutu preaching forgiveness however demanded National Leaders not to attend the CHOGM summit in Colombo. Is this how he promotes ‘love and forgiveness’ which has been part and parcel of every speech he delivers!
• Is the TRC similar to Christian confession system – confess one’s sins and be absolved of all sins – simple full disclosure of acts without remorse! Yet both P W Botha and F W de Klerk refused to admit they had done anything wrong.
• The victims making Church-like confessions to the TRC felt they had been used to get their stories because they were not adequately compensated for their suffering. There were some who asked the morality of simply forgiving all crimes simply because they confess without repentance and who gave TRC the right to forgive without punishment.
• TRC was empowered to grant amnesty to perpetrators who confessed their crimes truthfully and completely to the Commission. TRC let many of the worst offenders off the hook
• TRC also gave disproportionate opportunity for white victims to speak at the public hearings rather than white victims.
• TRC took the testimony of approximately 21,000 victims; and 2,000 of them appeared at public hearings. The commission received 7,112 amnesty applications. Amnesty was granted in 849 cases and refused in 5,392 cases, while other applications were withdrawn. http://www.justice.gov.za/trc/amntrans/index.htm
• Archbishop Desmond Tutu, argued that the commission accomplished what it set out to do though the Commission members admitted its failure.

Many in South Africa believe it should not have had a Truth and Reconciliation Commission or Convention for a Democratic South Africa (CODESA) because they were merely political necessities only.

TRC reconciliation was not through punishment for crimes committed or examination of the systematic oppression. The oppressed subject to systematic violence was never addressed. Even in Sri Lanka’s case the injustice to ordinary civilians by the LTTE must take precedence over civilians who had been injured while taking part in combat operations for the LTTE whether voluntary or by force.

South Africa’s TRC did not hold hearings on land issues, education systems, migrant labor system, the role of companies that collaborated with and profited from apartheid either.

In the case of Sri Lanka for 30 years it was Terrorism that prevailed. Terrorists killed, destroyed property and assassinated. If we are talking about punishment and reparations how are civilians victims of LTTE terror to be compensated or can LTTE leaders/cadres/supporters and fundsters get away by simply confession? Who in the LTTE will accept accountability for the crimes committed and what is the mechanism to be applied to compensate people whose lives the LTTE nullified and those who remain injured. Just because it suits a handful to claim success of a political settlement how can they deny justice for these unnecessary deaths for these people were targeted victims and had nothing whatsoever to for the LTTE to take away their lives?

South Africa’s CODESA was focused on restoring political rights but completely ignored economic power and ownership changes and inequality remains rife as economic power remains concentrated in white hands. The Stock Exchange is held by only 10% of blacks, less than 10% lands have been transferred back to black hands. It is said that to transfer 30% of lands to blacks a further 30 years would transpire.

If South Africa has found little or no ‘TRUTH’ in its Commission and hopes that ‘some truth’ is better than no Truth is Sri Lanka for want of representatives with the ability, competency and country loyalty to argue our case are ready to pick every straw being dangled masquerading as relief under the false belief that provides relief and buys time to the leaders who are being threatened to be charged for war crimes?

Racial segregation, sanctioned by law, was widely practiced in South Africa before 1948. There is absolutely nothing that Tamils can produce giving sufficient evidence that Tamils are segregated from governance legislatively and constitutionally.

The Sri Lankan Governments continuously repeat the same mistake.

Mistake 1: Not realizing that the objective of the multipronged attack on Sri Lanka is to create a regime change – all issues being raised are camouflages with a dual purpose of eventually cornering the Government and weakening the Sri Lankan state by diluting the powers held by the majority populace and getting the Government to clip the wings of the majority themselves.

Mistake 2: To think that adapting or adopting Commissions of nations like South Africa will provide relief to the Sri Lankan leaders targeted for regime change – these Commissions are eventually directed at committing the Sri Lankan Government to legislatively take away the powers of the majority populace and reduce it to a pariah state. There is no guarantee that the confession system based on the Church in exchange for amnesty that the Commission propagates will not be used by the international court at a later date for war crimes. Even though countries have not signed the Rome Statue the ICC will always devise ways in which to maneuver non-signatory nations for trial.

Mistake 3: Continuing to rely on the same set of unpatriotic proven disloyal representatives taken through the back door to steer Sri Lanka’s foreign policy. Academic qualifications have not given any reprieve to Sri Lanka’s leadership or to the country except to have them make promises to world leaders and word country legislature that have been detrimental to Sri Lanka.

What we need to be made public above all else is to know the reasons for LTTE to emerge, those that gave arms and trained LTTE youth and turned them into armed militants, the nations, institutes and others whether local or international who indirectly and directly supported the LTTE. They are directly responsible for every civilian death and these deaths supersede that of demanding accountability for the last stage of a war given that war was declared only after LTTE refused to lay down arms and surrender and claimed that the civilians were with them voluntarily.

It is now time that the people of Sri Lanka make public that they do not need any more bogus Commissions but to know the truth about LTTE terror and all those who helped and supported LTTE over the years. It is their names and details that must be made public and criminal charges pressed against them.

It is time the people of Sri Lanka make clear to the Sri Lankan Government that we demand LTTE crimes and associated criminals to be investigated first and the Sri Lankan Government must make this demand to the so called ‘international community’.