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Former TRC commissioner calls for restitution urgency

Yasmin Sooka, a South African human rights lawyer who served as a commissioner on the country’s Truth and Reconciliation Commission (TRC), delivered Stellenbosch University’s third annual social justice lecture on Friday 18 February 2022.

Themed “Restorative justice and restitution: unfinished business from the TRC“, the Social Justice Lecture was hosted by the Chair in Social Justice at Stellenbosch University as an annual event that .  commemorates World Social Justice Day.  Social Justice, which is observed on 20 February each year, was designated by the United Nations as a global day for spotlighting social justice and mobilising the world to accelerate progress on ending poverty and inequality. The Dean of Law at Stellenbosch University, Prof Nicola Smit informed the audience of the hybrid event that took place in person at Stias and online, that the Social Justice Lecture is part of the University’s commitment to lead in the advancement of social justice, including remedying the legacy of past injustices. She read out Stellenbosch University’s restitutive statement in this regard.

TRC had successes and weaknesses

Ms Sooka specifically advised that the TRCs Terms of reference and Work were anchored in restorative justice, with an ethos that heavily leaned on restoration and reconciliation as opposed to the Western retributive justice paradigm. In this regard, Ms Sooka observed:

“There were a number of compromises made during the negotiations on the basis that these were necessary for a peaceful transition to democracy, adopting a restorative justice approach. The compromises included a government of national unity, no nationalization of land, an amnesty deal for those responsible for the crimes of apartheid. It is worth recalling that like the Latin American examples, the South African transition was negotiated, rather than the former regime being overthrown. The amnesty was justified as a necessary compromise to ensure peace and reconciliation and was a broad amnesty covering serious human rights violations. The South African amnesty differed from other amnesty processes, however, as it was intrinsically linked to the truth-recovery project and was accompanied by measures to acknowledge. The establishment of the South African Truth and Reconciliation Commission cemented the notion of a restorative justice approach, which is often defined as a contrast to retributive justice. Restorative justice suggests that rather than viewing crime as a violation of the law with the state being the victim, restorative justice views crime as “a violation to people and relationships”1 this emphasis on reconciliation rather than retribution, is more consistent with indigenous African conceptions of justice and who said: “Retributive justice is largely western, an African understanding is far more restorative ā€“ not so much to punish as to redress or restore a balance that has been knocked askew”

The TRC, Sooka said, achieved several successes. These include identifying institutional weaknesses in state bodies such as the country’s police and armed forces and developing a holistic and comprehensive policy on reparations and institutional reform. Yet there were also weaknesses. Part of it, Sooka explained, was that while the commission had developed a reparations policy, government had to implement it. “The democratic government also argued that every black South African, as a victim, would benefit from government programmes of development, which unfortunately did not happen.” The process of reparations to victims was delayed and the commission’s recommendations around prosecutions and institutional reform were not carried out, she said.

Sooka also identified the distinction between truth recovery and full disclosure as well as the TRC’s narrow interpretation of its mandate as further weaknesses in the commission’s approach. “There’s a big difference between telling the truth about everything you’ve been involved in, and the question of full disclosure. And while it is true that the TRC’s mandate focused primarily on civil and political violations, there is no doubt that the laws and structural policies of apartheid went far beyond those. So, the failure to examine the impact of that allowed the beneficiaries to escape responsibility.”

According to her, the commission should have placed greater focus on the racial dispossession of land, black South Africans’ exclusion from the economy, and inferior education. This meant that opportunities were missed for the restitution of land, the prosecution of those who had not applied for amnesty, the proper implementation of reparations, and ensuring that black South Africans were able to access the economy. As a result, Sooka said, many today experience feelings of betrayal, and a sense that full transformative justice was not delivered.

Sooka currently chairs the South Sudanese human rights commission, which the United Nations (UN) Human Rights Council in Geneva established to investigate serious crimes in South Sudan and collect evidence for future accountability efforts. She also served as one of three international commissioners on Sierra Leone’s truth and reconciliation commission appointed by then UN High Commissioner for Human Rights Mary Robinson. Moreover, in 2011, Sooka formed part of the panel of experts advising then UN secretary-general Ban Ki Moon on accountability for war crimes in Sri Lanka.

Regarding restitution, Ms Sook conceded that this was a major weakness. She pointed out two key challenges the TRC had in this regard. The first one is that the TRC felt significant compensation to victims of apartheid would bankrupt the country, a view later confirmed by the courts. Another key shortcoming, Ms Sooka identified, was that Terms of Reference limited harm and restitution to violent conduct of the apartheid security forces. They did not cover land, economic dispossession, and social oppression. She said an attempt to deal with this short coming through thematic public hearings did not have significant impact. She proceeded to state that land and other socio-economic reparation remain key outstanding matters of restitution that are at the core of unhealed divisions of the past and instability markers such as the July unrest of 2021. Ms Sooka observed:

“Internally within the Commission, we debated how to deal with the violations emanating from the policies of Apartheid, including the land question given that land dispossession belonging to Black people was complete by 191330. The debate also focused on persecution, and exclusion from the economy, education and job reservation on the basis of race and color creating slavery conditions and dispossessing Black people of citizenship rights in their own land. We had numerous submissions from human rights groups across the country, requesting that we hold hearings on land, apartheid education policies, exclusion from the economy and job reservation to name but a few. The narrow focus on ‘civil and political crimes’, did not take account of the fact, that those who rose up against the state, and who were detained, tortured and killed were because they opposed the unjust racist system and discriminatory laws of the criminal apartheid state. Sadly, this debate was lost in the Commission.”

Ms Sooka ended with a call to all to join hands in remedying the legacy of past racialised domination and dispossession, without blame apportioning. She said:

While not an excuse for our dire explosive situation, South Africa mirrors most global economies in the world, which have failed to provide the conditions in which citizens can thrive. A World Economic Forum study on social mobility in 2020, pointed out, “an individual’s opportunities in life remain tethered to their socio-economic status at birth, entrenching historical inequalities”48. This presents a challenge not just for the individual, but also society and the economy. It’s a systemic issue. Human capital is the driving force of economic growth, and anything that undermines the best allocation of talent and impedes the accumulation of human capital significantly hampers growth. Poor social mobility coupled with inequality of opportunity underpin these frictions, suggesting that if the level of social mobility were increased, it could act as a lever to economic growth. The Global Social Mobility Index considers what a country can do holistically to foster relative social mobility for all citizens, which is markedly different from other methodologies. The index focuses on drivers of relative social mobility instead of outcomes, such as a policies, practices and institutions. This allows it to enable effective comparisons throughout regions and generations. It uses 10 pillars, which in turn are broken down into five determinants of social mobility ā€“ health, education, technology access, work opportunities, working conditions and fair wages and finally, social protection and inclusive institutions. Not unsurprisingly, Denmark figures as the country with the best conditions for social mobility at a measure of 85.2. South Africa is ranked at 77…There is no doubt that the social and economic consequences of racialized inequality and poverty are profound and far-reaching: a growing sense of unfairness, precarity, perceived loss of identity and dignity, weakening social fabric, eroding trust in institutions, disenchantment with political processes, and an erosion of the social contract”

Ms Sooka concluded with the words:

“All of us need to make a concerted effort to create new pathways for social justice ensuring that everyone has a just and fair opportunity for success. As beneficiaries of apartheid and the transition, the next generation will ask the question around why we failed to do our bit to ensure a just transition in our country”

Restorative justice everyone’s business

The idea that social justice, including restorative justice, is everyone’s business, was reiterated by Prof Nicola Smit, dean of the Faculty of Law at Stellenbosch University (SU). Prof Smit said the topic of restorative justice and restitution remains very important worldwide, and especially in South Africa. “In fact, our university in a restitution statement acknowledged its inextricable connection with generations past, present and future, as well as its contribution to the injustices of the past,” she said. “This we deeply regret, and we apologise unreservedly to the communities and individuals who suffered from the historical privileges that SU enjoyed. And we honour the critical Matie voices of the time who would not be silenced. SU is unconditionally committed to the ideal of an inclusive world-class university in and for Africa.”

In closing the day’s proceedings, Prof Thuli Madonsela, incumbent of the Law Trust Chair in Social Justice, remarked: “What we can take from what Yasmin said is that our boat is going through perilous waters. It doesn’t matter whose mistake it was. But if we want it to reach its destination āˆ’ a South Africa based on democratic values, social justice and fundamental human rights – where everyone’s life is improved and the potential of every citizen freed potential is freed, as envisaged in the Constitution, we all have to work for it. We all have to invest in justice, including social justice, to save South Africa.”

Liaise with Diane Gahiza at gahiza@sun.ac.za for more information. A copy of the full speech is available.

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