LGD 2009 (2) - Baraza

In the violent aftermath to Kenya’s controversial 2007 presidential elections a Truth Justice and Reconciliation Commission was established to deal with the abuses of power, misuse of public office and gross human rights violations committed from the immediate post-independence period up to the violent and fatal clashes following the disputed elections. This article focuses the challenges faced by the South African Truth and Reconciliation Commission in regard to collective memory and reconciliation and attempts to distil lessons vis-à-vis the Kenyan context and its recently initiated truth and reconciliation process. Through an analysis of the elements within the SATRC’s notion of reconciliation and its role in the mediation and determination of collective memory, the paper considers the conclusions drawn from this analysis of the South African experienceand hypothesises on the mnemonic challenges that Kenya’s Truth Justice and Reconciliation Commission will have to grapple with in regard to its task of fostering reconciliation and national unity through the collectivisation of memory through the public presentation of the truths.

This is a refereed article published on: 19 November 2009

Citation: Baraza, M., ‘ Institutional Re/membering: Collective Memory and the South African and Kenyan Truth and Reconciliation Projects’, 2009 (2) Law, Social Justice & Global Development Journal (LGD). <http://www.go.warwick.ac.uk/elj/lgd/2009_2/baraza>

Keywords

Collective Memory, Forgiving, Forgetting, Human Rights Violations, Kenya, Reconciliation, South Africa.

Author’s Note

Thanks to Upendra Baxi for the initial guidance and encouragement; to the anonymous reviewers for their most helpful comments and to Abdul Paliwala and Sabrina Zheng for their assistance and patience.

1. Introduction

In February 2008 Kofi Annan called on Kenya to establish a truth and reconciliation commission to help heal the nation following the violent aftermath of the controversial December 2007 elections. During this period of organised and spontaneous protest, organised militia activity and disproportionate use of force by the Kenyan police force and paramilitary forces over 1,500 people were killed 600,000 people internally displaced.¹But even before the post-election violence there had been perennial calls for the establishment of a truth forum to handle the atrocities committed as early as during the pre-independence emergency period of the 1950’s, the ‘KANU years’ during the presidencies of Jomo Kenyatta and Daniel Moi from 1963 – 2002 including the tribal clashes of 1992, 1997 and since then the persistent ethnic violence in the Rift Valley and parts of coastal and western Kenya. On the 23^rd of October 2008 the Parliament of the Republic of Kenya passed into law Act No. 6 of 2008: The Truth, Justice and Reconciliation (TJRC) Act that came into force on 9 March 2009. In light of these developments, what lessons can we draw from the most widely debated and analysed truth and reconciliation structure, the quintessential South Africa Truth and Reconciliation Commission (SATRC)?

Though the discourse concerning the SATRC is indeed voluminous, far from allaying continued academic engagement, I contend that this illustrates the fecundity of its numerous dimensions and the complexity of the issues surrounding this exceptional commission and its unique context. Normatively, the SATRC has “become the model for all future commissions…the new standard setting model of the practice;”²in this regard, the commonly advocated resort to similar fora to reunite and reconcile populaces after periods of mass unrest, violation or violence, such as those experienced in Kenya, justifies continued analysis of the SATRC. As Minnow explains, “ truth commissions should be an important part of the national and international repertoire of responses to mass violence.”³Indeed perhaps it is only now with the passage of time that we can truly appreciate and analyse the dynamics and legacy of this structure.

The SATRC was to be a publicly conducted "quest for truth aimed at [achieving] national unity and reconciliation.”⁴This paper focuses on the second aspect of that mandate: reconciliation; and contends that memory and mnemonics form an important and inexorable epistemological context within which the debate as regards the SATRC's attempt to achieve reconciliation ought to be based. Exploration of memory and reconciliation exposes a paradox within the memory discourse and highlights the aporia: can and should a TRC endeavour to foster/ensure reconciliation through the mediation and determination of 'collective' memory? The debate herein therefore, is not whether the SATRC was a successful endeavour or not, whether or not it achieved its lofty objectives, most importantly national reconciliation; it is rather trying to reveal the challenges faced by the SATRC in regard to memory and reconciliation and trying to distil lessons from this in regard to the Kenyan context and its recently initiated truth and reconciliation process. Taking into consideration the conclusions drawn from the South African experience, the paper hypothesises on the challenges that Kenya’s TJRC will have to grapple in regard to moulding collective memory through public presentations of the truth towards fostering reconciliation and national unity.

The paper begins with a brief introduction of the South African and Kenyan contexts. It then moves to discuss the concept of reconciliation and the SATRC’s particular notion of the term, both applied and in principle. The paper then examines the dynamic between reconciliation, forgiveness and forgetting asserting that the latter two processes became constitutive of the SATRC’s notion of reconciliation. Following this examination we introduce a hypothesis on memory, analysing its inherent public/private dynamic in whose paradox the challenge for the SATRC in fostering a collective memory lay. The paper draws conclusions from the above analysis, considering a selection of literature within this discourse towards distilling lessons from the SATRC experience. The paper concluded by assessing these conclusions in light of Kenya’s quest to establish a truth and reconciliation commission.

2. The South African and Kenyan Contexts

2.1 The South African Context

The SATRC was setup under the promotion of National Unity and Reconciliation Act No. 34 of 1995 to provide for the investigation and the establishment of as complete a picture as possible of the nature, causes and extent of gross violations of human rights committed during South Africa’s apartheid experience from the month of the Sharpeville Massacre in March 1960 to its end in 1994. This experience constituted the institutional segregation and racist exclusion of non-whites in practically all aspects of life, social, economic, cultural and political. The central policy prescription facilitated the forced removal of non-whites from urban areas and areas of white settlement and their relocation in ‘bantustans’ and native reserves in order to control the African native and to organise and restrict the much needed migrant labour. “By 1990 half of South Africa’s black population lived in the Bantustans, which together accounted for only 14 percent of the land in the country. A large slice of this population was the victim of forced removal.”⁵In addition to the general systematic terror and administratively led justice that characterised everyday life under apartheid, protests and resistance to this oppression, such as the Sharpeville 1960, Durban 1973, Soweto 1976 uprisings, were met with brutal and ultimately lethal crackdowns from the administrative forces of the apartheid government resulting in widespread human suffering and gross human rights violations including murders, disappearances, torture and arbitrary imprisonment.

The SATRC presented the final portion of its report in March 2003, concluding the process that began in December 1995. The SATRC consisted of a Truth and Reconciliation Commission, a Committee on Human Rights Violations, a Committee on Amnesty and a Committee on Reparation and Rehabilitation. Together they were mandated to determine the fate or whereabouts of the victims of the human rights violations; grant amnesty to those who made full disclosure of all the relevant facts relating to acts associated with a political objective committed during the relevant period; afford victims an opportunity to relate the violations they suffered; take measures aimed at granting reparations to victims as well as measures aimed at rehabilitation and the restoration of the human and civil dignity of victims of human rights violations; to report to the nation about such violations and victims and make recommendations aimed at the prevention of the future violations. The SATRC therefore focused on addressing gross human rights violations under apartheid.

2.2 The Kenyan Context

There had been concerted calls for the establishment of a truth commission in Kenya since the democratic political transition of 2002 during which the 24 year rule of President Moi and his KANU party was brought to an end and President Kibaki installed as the nation’s leader. On April 17, 2003, the new Kibaki administration appointed a Task Force on the Establishment of a Truth, Justice, and Reconciliation Commission (Task Force) mandated to “find out if a truth commission was necessary for Kenya, and, if so, to make recommendations on the type of truth commission that ought to be established.”⁶

The Task Force held public meetings, hearings and discussion panels with the full range of stakeholders, conducting these fora in each province of the country. They widely disseminated their mandate and mechanisms through the media and partnerships with a variety of governmental bodies and non-governmental organisations. They also organised conferences including an international conference attended by Archbishop Desmond Tutu and Dr. Alex Boraine respectively the Chair and Vice-Chair of the SATRC amongst other notable academics, practitioners and activists. According to the Task Force Report these fora “...afforded Kenyans an opportunity to appreciate the necessity and complexity of a truth telling and justice seeking process. But it also made clear that a truth commission is one mechanism for cleansing and transforming the moral and political fibre of the nation.”⁷The Task Force recommended that an independent Truth, Justice, and Reconciliation Commission (TJRC) covering the period from 1963-2002 with comprehensive power of summons and investigation be established no later than June 2004 constituted by persons of high moral integrity, to investigate and hear in public human rights violations and violations of economic, social and cultural rights; recommend redress such as restitution, compensation, and reparations; recommend lustration or the barring of offenders from holding public office; track down stolen public property and funds and recommend their return to the state or the individuals from whom they were stolen; negotiate with perpetrators of economic crimes for the return of stolen property and funds in exchange for recommendations of limited amnesty and immunity; recommend prosecutions of offenders. It also recommended that the Government of Kenya establishes a committee or similar institution to examine the atrocities of the colonial period and make recommendations on how they ought to be addressed.

Despite intermittent calls for the establishment of the Commission, there was little action in setting up the mechanism until after the post-election violence in late 2007 and early 2008. Following this violence that resulted in the death of thousands and the displacement of hundreds of thousands of people, a Panel of Eminent African Personalitiesled by former UN Secretary General Kofi Annan under the aegis of the African Union mediated a political settlement that ushered in the current Government of National Unity. The ‘peace process’, named the Kenya National Dialogue and Reconciliation (KNDR), consists of a panel and two negotiating teams.⁸Under the Section 2(h) of the Agreed Statement dated 4 February 2008⁹the KNDR states that “a Truth, Justice and Reconciliation Commission that includes local and international jurists should be established.”¹⁰The KNDR once again expressed the desire to, amongst other reforms, establish the TJRC in the Agreed Statement dated 14 February 2008;¹¹on 4 March 2008, the KNDR signed an agreement to establish a TJRC.¹²On 9 May 2008 the Minister for Justice, National Cohesion and Constitutional Affairs sponsored the Truth, Justice and Reconciliation Bill, 2008. It was debated in Parliament and received Presidential Assent on 28 November 2008 and came into force on 9 March 2009.

The preamble to the Act summarises the rationale for the TJRC; it states that for the nation to achieve its full potential in social, economic and political development it must address the past in order to prepare for the future by building a democratic society based on the rule of law. It explains that some of the post-independence transgressions against the nation and its people including gross violations of human rights, abuses of power and misuse of public office cannot be properly addressed by the country’s judicial institutions due to procedural and other hindrances. It therefore proposes the TJRC as a free and reconciliatory forum that would ‘enable Kenyans discard such matters’ and give the people of Kenya a fresh start where justice is accorded to the victims of injustice, past transgressions adequately addressed and lasting peace and harmonious co-existence among Kenyans achieved.

There are therefore three primary reasons for the establishment of the TJRC in Kenya: gross human rights violations, abuses of power and misuse of public office. Though the impetus for the creation of a TJRC in Kenya emerged after two electoral transitions, the 2002 and 2007 elections, most particularly the violence and turmoil that followed the latter, it is widely agreed that electoral fraud and abuse of the democratic process is a symptom of a deeper malady in Kenya’s social, political and economic fibre. The gross human rights violations and the misuse of public office, the latter primarily manifest through grand corruption, are both linked directly to the abuse of power. The 2003 Task Force described political history and governance of the Kenyan state as “a catalogue of gross human rights violations, the arrogance of power, and the commission of mind boggling economic crimes.”¹³

These gross human rights violations include politically motivated assassinations, persecution and murders especially of both prominent and ordinary Kenyans during the 40 years (1963-2003) in which the Kenya African National Union (KANU) party was in power¹⁴and in the ‘post-KANU era. This included the political actions that contributed to and/or exacerbated tribal clashes that flared up during the general elections in 1992, 1997 and 2007/8.¹⁵Gross human rights violations also include the administrative measures and massacres directed against the residents and communities of northern Kenya for example the Bagalla Massacre, the Malka-Mari Massacre and particularly the Wagalla Massacre in which state security forces killed thousands of members of the Degodia community and the more recent security operations against the Sabaot Land Defence Force in western Kenya and the crackdown against alleged members of the outlawed Mungiki in Nairobi and parts of central Kenya both of which have resulted in significant death tolls. According to the Act, gross human rights violations include violations of fundamental human rights,¹⁶the enforced disappearance of persons or any attempt, conspiracy, incitement, instigation, command, procurement to commit these acts which was committed during the period between 12th December, 1963 and 28th February, 2008, and the commission of which was advised, planned, directed, commanded or ordered, by any person acting with a political motive. It also includes rape or any other form of sexual violence; the persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious or gender or other grounds universally recognized as impermissible under international law; as well as crimes against humanity.¹⁷

Incidents of grand corruption can be generally divided into land grabbing and misappropriation of public funds. Land grabbing involves the illegal or irregular allocation of public land¹⁸and is arguably the longest practiced form of high-level corruption in the country. The Report of the Ndung’u Commission¹⁹, appointed by President Kibaki in June 2003 and published in December 2004 to investigate the illegal and irregular allocation of public lands, found widespread graft and land grabbing by public officials and their political patrons spanning from the immediate post-independence period to the present day.²⁰The recommendations of this Commission were never implemented meaning those identified as having illegally acquired public land have not either been called to account for the property and/or prosecuted. The misappropriation of public funds in Kenya since independence has resulted in the loss of billions of shillings from the state coffers and undoubtedly contributed to the high levels of poverty and disenfranchisement in Kenya today. Incidences of misappropriation of public funds include the Goldenberg and Anglo-Leasing scandals that occurred during Moi’s and Kibaki’s regimes respectively.²¹

Despite the numerous inquiries into corruption and the formation of structures to deal with the investigation and subsequent prosecution of the perpetrators of graft such as the anti-corruption courts and the Kenya Anti-Corruption Commission, there architects of these schemes remain at large or indeed in power. These incidences of grand corruption are seen as directly related to the increasing levels of poverty as well as the growing disparity in wealth between the nation’s minority rich and majority poor. Land has always been a sensitive national concern since the formation of native reserves during the colonial period and with the advent of multi-party politics in the early 1990s, the issue became increasingly politicised and one of the principle causes of ethnic clashes across the country resulting in the killing and eviction of landowners and users as well as the displacement of thousands of people. “[E]conomic crimes are so intertwined with human rights violations that it is impossible to establish watertight compartments between the two types of violations. This is more so in the Kenyan case where economic crimes were committed as part and parcel of human rights violations.” In this sense, in the Kenyan context, corruption is inexorably linked to gross human rights violations as is illustrated in this passage from the Report of the Task Force on the Establishment of a Truth, Justice and Reconciliation Commission:

...the...government instigated and at times directed the ignition and execution of ethnic clashes against communities that were deemed to be in opposition to it. Directed at so-called opposition communities and zones, these clashes exploited the volatile question of land as their pretext. Communities that had lived peaceably together for decades were suddenly turned against each other as the KANU state sought to stamp out opposition to its rule...In both the Rift Valley and Coast Provinces, in particular, Kenyans from certain communities were termed “ foreigners” and either killed outright, their lands forcibly taken, their property and livestock confiscated or destroyed, women and girls from their communities raped and beaten, and their lives irreparably ruined. Many of these “foreigners” were forcibly exiled from the provinces and dared to return. Thousands were killed and hundreds of thousands internally displaced in the so-called land clashes. Deep wounds have been left on the Kenyan psyche by these clashes. The epicenters of the clashes, such as Molo, Enoosopukia, Likoni, and many other places must form a central component of the terms of reference of a truth commission, and must be fully investigated. The truth commission ought to establish culpability and make recommendations for redressing these most abominable of violations.

This is the context within which the TJRC was setup. In the next section of the paper is an analysis of the South African experience with the SATRC in regard to collective memory and reconciliation. After this analysis of the completed South African process, specifically in regard to the construction of collective memory, we then continue to hypothesise upon what lessons the recently initiated Kenyan process can learn from this, if at all, and the challenges the TJRC faces in its own quest to promote reconciliation and national healing through the construction of a national narrative of its traumatic past.

3. Reconciliation

Reconciliation²²in praxis is a motley concept.²³Indeed “[t]he pursuit of reconciliation is an endeavour fraught with contradiction and is made more difficult by the fact that there can be no blueprint that satisfies a wide spectrum of citizens.”²⁴Stating that “the moral precepts within reconciliation talk became a defining feature of the South African peace process,”²⁵Wilson trenchantly attacks the SATRC’s notion of reconciliation describing it as the “Trojan Horse used to smuggle an unpleasant aspect of the past (that is, impunity) into the present political order, to transform political compromises into transcendental moral principles.”²⁶Likewise Mamdani describes it as a “code word for a diminished truth.”²⁷Illustrative are the variations and range of opinions amongst both academics and commentators on the subject as well as individuals and groups in society on the circumstances within which reconciliation can occur. In the context of South Africa you have those who hold that reconciliation will only occur once all black citizens are adequately compensated in areas such as housing, education and healthcare; others label this perception a preoccupation with the past that acts as an obstacle to reconciliation. Others assert that land restitution and redistribution is central to reconciliation, while others propose segregation (a whites only Volksland for Afrikaners) as the nations only chance for reconciliation.²⁸

There is similar disparity amongst the opinions of those victims who testified at the hearings. Some favoured reparations; others were only interested in discovering the truth while others believed that judicial prosecution of perpetrators would foster reconciliation. Hamber and Van der Merwe add: "very seldom is anyone in South Africa talking about the same thing when they refer to reconciliation."²⁹In regard to literature on the SATRC concerning the concept of reconciliation, views are mixed in regard to its definition, function, usefulness and effects; indeed even within the SATRC the notion of reconciliation was never concretely defined and opinion on the term remained in flux throughout the proceedings. Wilson explains that the meaning of ‘reconciliation’ proliferated and transformed during the life of the commission. Initially during the formative negotiations in 1993 ‘reconciliation meant amnesty for violators of human rights.’ It was not defined explicitly in the National Unity and Reconciliation Act of July 1995 leading to the conclusion that ‘reconciliation was to be a secondary outcome which flowed from the other, more important, activities of investigation and indemnification for offenders.’³⁰In February 1997 a TRC commissioner, stated that “[r]econciliation shouldn’t be based on repentance and remorse…it is just a capacity to co-exist as individuals. It shouldn’t be based upon Christian ideas. We should guard against [Archbishop Tutu’s] stereotyping collectives…”³¹This statement goes to reflect that even within the Commission, there were opposed opinions throughout the proceedings in regard to a precise notion of reconciliation.

It is not necessary to define the term; indeed any attempt at a definition would only add to this imbroglio and into protean didactics. To be reconciled is a state of being. The aspect of note in the analysis of reconciliation are the elements that political structures/ideologies perceive as enabling their subjects to attain this state of being.³²More prudent would be to attempt to distil those ingredients contained in the relevant interpretation of the notion of reconciliation within the SATRC that service our query. I therefore try to focus herein on the term reconciliation in regard to the ideology and functioning of the SATRC not in terms of the theoretical or normative parameters that frame its wider discourse. I engage particularly with reconciliation in terms of what I identify as the most pronounced characteristic within the SATRC, that of forgiveness and linked to that, forgetting. In promoting reconciliation through the provision of truth it emphasised forgiveness and abetted forgetting. Further, it can be argued that through various absences, in terms of marginalisation of certain voices or the lack of participation of important groups, forgetting was further engendered throughout the proceedings of the SATRC.

3.1 Reconciliation at the SATRC

The SATRC was to be the main conduit through which the people(s) of South Africa would face the atrocities of apartheid. Under the stewardship of former Anglican Archbishop and Nobel Peace Prize Laureate Desmond Tutu, the SATRC adopted, to a greater extent, an interpretation of reconciliation manifest with 'Christian' morals and values. As Chairman of the SATRC, and 'confessor-in-chief’ his theology was at the centre of the Commission’s attempt to create a collective memory for all South Africans. As Battle stated, the South African nation "depended heavily on Tutu's voice to articulate why forgiveness is better than redistributive justice.”³³Indeed Tutu's atonement theory imbued the TRC and its ideals set the tone for the entire process. 'Tutulogy' is an amalgam of three principles: Christian theological conceptions, the 'African' notion of Ubuntu and trans-national principles of human rights. The first looks to a certain interpretation of the ecclesiastical notion of reconciliation: "a sacrament in which repentant sinners are absolved and gain forgiveness with God on condition of confession of their sins to a priest and of performing of penance"³⁴; the second "a form of relational spirituality that connotes the basic connectedness of all human beings;³⁵an 'African' value, connoting "the essence of being human."³⁶And the third, the universal western liberal concepts of human rights that South Africa embraced on joining the world community from which it had been excluded during the years of apartheid.

Overall however, the “religious community [was the] fountainhead of symbolism for the SATRC's own conceptualization of reconciliation”³⁷which entailed creating a future in which communities practice forgiveness. This theological dominance is evinced in the TRC's heavy reliance on religious infrastructure to carry out important functions such as statement taking, the arranging of hearings and advising in the selection of cases to come to public hearing even the ceremonial form of the hearing was proto-religious.³⁸“ Each session [for example] opened with a prayer, conducted by a religious figure from the community³⁹[accompanied by hymn singing;]”⁴⁰ultimately, all the stages of the SATRC were advised by this 'adductive affinity' between the Church and the Commission.

Individualism and self-achievement are seen, both in the Christian and African theological contexts, to run counter to notions of discipleship and community, Tutu's approach (and therefore that of the entire process) are marked by numerous 'collectivising' or 're-membering' statements each latently asserting that "all pain was equal, regardless of class or racial categorization or religious or political affiliation; ‘We all feel the same pain.’”⁴¹Pursuant to this ‘moral equalizing,’⁴²“ individual suffering ... was brought into a public space where it could be collectivized and shared by all and merged into a wider narrative of national redemption.”⁴³This creation of a public narrative was central to the TRC's goal of establishing a collective memory; a process that was characterised by the use of Christian rituals and ceremony in which metaphors and representations of sacrifice, liberation and, redemption through forgiveness and forsaking revenge served as the main symbols. As Wilson explains, “‘sacrifice’ [and martyrdom] provided the main symbolism for grafting individual pain onto wider political narratives and social processes, providing new meaning for death by creating a heroic figure of self-sacrifice in the mythology of the state.”⁴⁴

Referring to the victims as 'heroes', the Commission portrayed their death as part of the struggle for the liberationof the nation. Liberation, the more obvious symbol, was represented as the nation’s victory over racial domination; the end to apartheid and forcible rule; a new South Africa united under the principles of justice, freedom and universal brotherhood. In the third symbol, redemption through forsaking revenge, the Commission was eager to praise any victims who showed no desire for revenge; their recompense: God's anointment and His healing of any wounds.⁴⁵Wilson describes the hearings as "structured in such a way that any expression of a desire for revenge would seem out of place. Virtues of forgiveness and reconciliation were so loudly applauded that emotions of vengeance, hatred and bitterness were rendered unacceptable, an ugly intrusion on a peaceful healing process.”⁴⁶‘ Miracles of reconciliation’ such as those involving the mothers of Victor Kheswa and Christopher Nangalembe⁴⁷who “after giving differing accounts of events, at the urging of the Commissioners, shook hands publicly in an act of seeming reconciliation;” or Eugene de Kock, head of the notorious police death squad Vlakplaas, receiving sustained applause after sympathising with the widows of his victims and asking for forgiveness,⁴⁸are actively disseminated to the public while the complaints about the structure, proceedings and justiability of the Commission by the families of local heroes such as Steve Biko, Griffiths and Victoria Mxenge, and Fabian Ribiero⁴⁹who stood as pillars of resistance in the struggle against apartheid, receive nothing more than a cursory glance and passing reference. This illustrates an emphasis, whilst there might be an emphasis on truth telling, the significant aspects of the narrative generation are whose or which truths are privileged and what then is expected from the antagonists in regard to these truths. For the SATRC, emphasis on forgiveness, amnesty and the exclusion of retributive or prosecutorial truths, meant forgetting became connate to forgiveness; elements within the SATRC theme of reconciliation.

Throughout the spectrum of opinion there seems to be consensus about one thing: its role as a ‘truth making machine;’⁵⁰the SATRC was actively involved in moulding the collective memory. What Cassin describes as “[t]he management of the relation between past and future, which is decisive for a political present…”⁵¹These three related mechanisms were essential in the SATRC’s task of moulding the type of public narrative that they believed would foster their version of reconciliation amongst the people. It should be noted here that this is not a critique of the species of reconciliation engendered by the SATRC; it is merely an interpretative description of this type of reconciliation. According to Bozzoli, this coherent, formalised sanctioning of and indeed state ownership of the older 'public' narrative rendered it extremely powerful.⁵²If this was so, were these public rituals of atonement problematic in regard to achieving the desired effects on the communities and societies for whom they were performed?⁵³What difficulties did the attempt at the creation of a new public narrative face? To answer these questions we shall engage in a more detailed analysis of reconciliation and the 'art of memory.'

3.2 Reconciliation: Forgiveness and Forgetting

Holiday describes "forgiving [as] a species of forgetting which severs the remorseful tie fettering authors of evil to those they have harmed, so that the latter no longer haunt the former.”⁵⁴The statement approaches ‘forgetting’ from the remorseful perpetrators point; that is in terms of who ‘benefits’ from forgetfulness. Re-drafting the latter statement in order to adopt the victims' perspective it would read: "forgetting is a species of forgiveness which severs the inimical tie fettering victims of evil to those who have harmed them, so that the latter no longer haunt the former." This assertion erases the spectral presence of the violation and victimage which Baxi states are "a necessary condition for thinking and doing justice in society.”⁵⁵(Though most likely not within the context used herein), Derrida highlights the need to remember 'those who are not here' and 'those who are already there without being there.' Baxi reminds us that "the struggle of men and women for justice and rights is always and everywhere the struggle between memory and forgetfulness.”⁵⁶These statements imply that to forget or to mis-remember, or to refuse to remember are injustices; a breach of an individual’s rights.

I contend that forgiveness and forgetting were the two primary elements within the SATRC notion of reconciliation. The ‘adductive affinities’ between the church and the SATRC, forgiveness, and redemption through forgiveness, were central to ‘Tutology’ and the wider ideology of the SATRC. Daye calls forgiveness ‘ a difficult and dangerous concept to carry into the realm of politics.’⁵⁷He states that the core grammar of forgiveness belongs to the realm of interpersonal relations. He speaks of the forgiveness’ long association with Christianity and gives an enlightening observation: “the Christian understanding of forgiveness [is] influenced by the sacrament of penance. This sacrament shifted the power to forgive from the victim to God (through the priest as mediator). In fact, the victim was often forgottenand removed from the equation”⁵⁸(Emphasis added).

What then is the link between forgiving and forgetting? I would like to consider forgetting in a wider sense, not only as a lack of recollection, but also as a false, wrong or incomplete recollection. Luhman explains that “social solidarity is...is better served not by attempting to reaffirm shared principles but by suppressing our principled disagreements and ‘forgetting’ the political conflagrations to which they may historically have given rise.”⁵⁹Tobias explains, “though...the objective of the TRC is not to encourage a forgetting of the past, it has nevertheless also insisted that both individuals and the country as a whole need to move on.”⁶⁰As Tutu stated, “We should all be humbled by what we’ve heard, but we’v e got to finish quickly and really turn our backs on this awful past and say: Life is for the living.”⁶¹The Interim Report of the SATRC stated: “We hope that the Commission will contribute to the process of healing a traumatised and wounded people. We open wounds only in order to cleanse them, to deal with the past effectively and so to close the door on that dark horrendous past forever. Together we can then turn to the present and the future.”⁶²Indeed we can see what a complex ‘forgetting’ is; cathartic yetunjust or cathartic thereforejust?

In November 1996 in reply to one of the proponents of the ANC’s ‘just war’ policy Archbishop Tutu forcefully stated,⁶³“ the Truth Commission legislation is quite clear: it does not make provision for moral distinctions and that is something the ANC must be aware of. You have to ask for amnesty…To talk about a just war is to introduce irrelevancies.”⁶⁴In this sense therefore, that perpetrators must seek amnesty, that victims must not seek retribution, that the species of reconciliation at the SATRC centred around the theme of forgiveness. Not that society cannot achieve a sense of reconciliation, of justice through forgiveness, but rather, the exclusion and marginalisation of any other avenue, is tantamount to forgetting; forgetting as not only as a lack of recollection, but also as a false, wrong or incomplete recollection.

Following from the explanation above, that forgiveness and forgetting were elements of reconciliation at the SATRC, an opposition emerges between memory and forgiveness; between memory and forgetting; and therefore between memory and reconciliation. In its quest to "construct a new political identity of the 'national victim' as the new South African self”⁶⁵, the SATRC faced obstacles endogenous in the dual public and the private nature of memory, memory's congenital paradox.

4. Memory

Memory is...a very important factor in struggle... If one controls people’s memory, one controls their dynamism... It’s vital to have possession of this memory, to control it, administer it, tell it what it must contain.⁶⁶

- Michel Foucault

Memory, (whether it is autobiographical memory: that of events that we have personally experienced in the past, or historical memory: that of events that we do not remember directly) can be stimulated by recollection amongst group members by society and various commemorative meetings within that group or society which "imaginatively [re-enact] a past that would otherwise slowly disappear in the haze of time."⁶⁷The TRC's charge, according to Holiday, was to " ... [awaken] the new democracy's memory of its birth pangs during the apartheid era;"⁶⁸a memory through whose recollection the people of South Africa would be able to reconcile their historical differences and look towards a unified future. In order to reconcile, therefore, the TRC calls on memory. However as we have seen above, I argue that the two facets in the TRC’s protean notion of reconciliation are forgiveness and forgetting; the TRC was tasked to either make the new nations citizens forgive and/or forget. An analysis of the public and private nature of memory serves to illustrate the ineluctable difficulty of this task.

Memory is an integral part of who we are. "We preserve memories of each epoch of our lives ... and through them ... a sense of identity is perpetuated."⁶⁹Identity as articulated by Hegel is constructed dialogically through a process of mutual recognition; therefore, "one becomes an individual subject by virtue of recognizing and being recognised by another subject.”⁷⁰In order to recognise, one has to recall what he has previously perceived or experienced. Basically, I remember myself because I remember how you remember me. "The individual [therefore] calls recollections to mind by relying on the social frameworks of memory.”⁷¹So how we conduct our 'private languages' is influenced, to contestable degrees, by the context within which we subsist in the present; as Baxi elucidates, "the 'art of memory' ... is used to service [and] reconfigure, the living present."⁷²Because of this dynamic, the TRC sought to use this social/public nature of identity and memory to create a collective memory within its predominantly Christian theological paradigm of reconciliation. However, once we consider the inextricable 'other' within the memory dialectic, its private dimension, the difficulties (if not impossibility!) of this task become clear.

4.1 Private and Public

As concerns memory, Halbwachs states, "there are no recollections which can be said to be purely interior, that is, which can be preserved only within individual memory;”⁷³dismissing, arguably, the Lockean notion of a private diarist⁷⁴he asks "[w]hat can be the value of a description ... which disallows every possibility of collective verification in the present or future?"⁷⁵However, he qualifies this statement by adding: "recollection comprises...two kinds of elements, on the one hand those that any member of [a] group can understand [such as] notions of objects or persons, words and meanings of words that express them [and second] a unique aspect under which recollections appear in our consciousness because we are what we are ... that is to say, our recollections each taken in itself, belong to everybody; but the coherence or arrangement of our recollections belongs only to ourselves.”⁷⁶Baxi describes memory as "the power of lamentation for those not there, a form of ability to grieve collectively the past histories of injustice and violation and anticipation of their future recurrence."(Emphasis added.) His suggestion of 'communities of mourning' speaks to Halbwachs notions of collective memory.

These statements assert the fact that there is both a public and private element to our memory. As Nuttall so succinctly summed up, public acts of remembering, individual memory in action, and narratives of the past try in one way or another to find a place between public resistance and private healing; and between private resistance and public healing.⁷⁷Tobias discusses the ideas of ‘common’ and ‘deep’ memory to “highlight the difficulties of reproducing, in the manner of historical narrative and description, experiences which resist recuperation into a logical or temporal order.”⁷⁸He explains that common memory “functions to reinsert [the] experiences of shared knowledge that provides the survivor with some measure of mastery and control over her experiences;” it is heroic memory, memory of survival. Deep memory “resists assimilation into a broader historical perspective, is unresponsive to the orientating co-ordinates of here and there, now and then...[it is] memory of loss.”⁷⁹Tobias queries the “self-evident validity of the historical task of assimilating deep to common memory, of bringing such memory into the order of shared knowledge and understanding.”⁸⁰

Holiday delves deeper into the private aspect of memory using Wittgenstein's 'private language arguments’⁸¹. He criticizes the restrictive reading of the contexts within which private language arguments occur. He describes the overall purpose of private language argumentsas"exposing the incoherence of a post-Cartesian vision of human nature, of the mind and of the relation between behaviour and the mental, of self knowledge and of the knowledge of experiences of others and of language and its foundations."⁸²This approach expands the arguments from a merely epistemic and semantic focus to attain a broader moral and political philosophical dimension. Viewing memory as a ‘private language,’ is it possible that these can be brought into the public sphere by 'social-political frameworks' such as the SATRC? Wittgenstein (as deciphered by Holiday) believes that it is possible not because it is impossible to have a private language as Halbwachs suggests, but because "a fully natural human natural language is essentially shareable”⁸³Not as some suggest shared. What he criticizes is the "empiricist picture of the mind as a passive receptacle of experientially sourced evidence that it is the function of language to make public.”⁸⁴This 'empiricist, emotivist, non-cognitivist, amoral ethical doctrine’ reduces language expressive of those moral inward realities that human inwardness enfolds to evincements of emotional states.⁸⁵In her description of a TRC hearing in Alexandra, Bozzoli describes the manner in which the setup 'helped [the hearing] become a highly emotional occasion⁸⁶(emphasis added). In doing this the TRC ‘mistakes’ moral conceptions such as forgiveness and remorse with emotional responses to guilt and pain.

This is the essential difficulty facing the TRC in regards to bringing the private into the public, it “ privileges notions of value-neutral public access to the extent of excluding those conceptions of inwardness which are, by their very nature, value-laden”⁸⁷and fails to realise that “…the facts of consciousness that are hidden from societal observation also escape its operation.”⁸⁸Holiday explains that "forgiveness by virtue of its conceptual dependence on remorse must be an intensely personal even private matter.”⁸⁹The SATRC and its proponents did not comprehensively consider that "the languages in which we converse ... have scope for single expressions over a variety of meanings”⁹⁰hence opening up single terms, emotions and occurrences to numerous interpretations. This allows for the misinterpretation of the victims' language (deliberately?) in order to re-member and collectivize individual suffering so as to create a collective memory. This essentialisation via the construction of a public Christian narrative of forgiveness within reconciliation ignores the individuality and uniqueness of those subsumed in this general categorization.⁹¹Through South Africa’s TRC, a "new public realm was created…whereby a new silencing and seclusion began to emerge, through the silences of the hearing and partial appropriation of what was said in the nationalist discourse.”⁹²The immanent public/private nature of memory contributes to our understanding of how the privileging of forgiveness fostered these ‘ silences’.

This analysis of the private dimensions of memory and reconciliation should not downplay the importance of external observation. Indeed in our discussion of memory it is difficult to talk of one without the other, in memory the public and private are inextricably linked. However, there is an empirical, mundane and public dimension to memory, in which there exist monuments on our retrospective landscapes that serve as mnemonic devices, refreshing recollections that would otherwise recede with time. These monuments ensure that apartheid continues to cast its shadow within the recollections of all South Africans.⁹³ The economic disparities, the negotiated nature of the settlement, the huge disparities in land distribution serve as daily frameworks through -which we constantly remember the past. These monuments serve to keep us almost fixed in time and space, we become reified within our economic, social and cultural collectives for "no memory is possible outside frameworks used by people living in society to determine and retrieve their recollections."⁹⁴Many [blacks] for example, "question their contribution to the new democracy and their sacrifices in the past when they can see no alleviation of their poverty ... their continued poverty reinforces and compounds their original trauma.”⁹⁵Similarly many whites feel victimised, the same economic and social disparities, the same monuments but different recollections. As Halbwachs said, 'individuals draw on their specific group context in order to remember or recreate the past’⁹⁶and “…there are as many collective memories are there are groups and institutions in society.”⁹⁷

5. Perspectives from Discourse

The SATRC endeavoured to foster reconciliation in its target society through a collectivisation of memory. But this is a dialectic process in that the elements within that notion of reconciliation determine the methods utilised by the mechanism in collectivising memory and vice versa, the method of collectivising memory influences, if not constitutes, the elements within that notion of reconciliation.

In regard to the mechanics of memory and the achieving social reconciliation we can identify three broad schools of thought: there are those who believe that whilst institutions can attempt to mould or re-create the collective memory any success, if at all, cannot be achieved deliberately. Second, you have the instrumentalists who can be divided into two further categories, those who believe it can be moulded or re-created but essential is an institutional structure that does this comprehensively, legitimately and inclusively and those for whom the method is irrelevant, memory is purely instrumental, a tool within the wider practices of politics and nation-building.⁹⁸Thirdly, you have those who see memory, and the practice

5.1 Collectivising memory as random

Though within the context of administrative massacre and mass atrocity, Osiel asks whether the influencing of collective memory can be achieved deliberately.⁹⁹Whether it is the express administrative measures and devices such as official campaigns of coercive forgetting as were carried out in the Soviet Union, China and Czechoslovakia or the more tacit measures, intentional or otherwise, an example of which is the forgetting fostered through the SATRC process, “memory seems to have a mind of its own...it’s very dynamism and flux work[ing] in slippery ways that elude self-conscious control...”¹⁰⁰Osiel cites Elster:

There are certain mental and social states...that can only come about as the by-product of actions undertaken for other ends. They can never, that is, be brought about intelligently or intentionally, because the very attempt to do so precludes the state on is trying to bring about.¹⁰¹

In this sense therefore, the success of political/legal projects in moulding collective memory is random rather than the result of some rational set of processes; this ‘ instrumentalisation of collective memory’, according to Schudson, is more often attempted than achieved.¹⁰²

5.2 Is Collectivising Memory Possible?

5.2.1 Procedural

The protagonists of this approach believe that whilst memory can be collectivised by public structures, this ought to be done and ultimately can only be deemed successful, if it fulfils the certain procedural, often moral, requirements; one could say the means justifies the end. The predominant opinion within this school centres on wide inclusivity and participation (participation that must be unencumbered and freely disseminated); particularly through addressing the truth claims and trauma of the individual victim. Daye, for example, commented that “where forgiveness entails nationalization of memory and suffering through the device of truth and reconciliation commissions, we stand confronted with ... the reduction of the testimony of the violated as the raw material for national 'reconstruction' via compromistic structures of accountability in whose shaping they have no voice and over whose powers they have no control.”¹⁰³Mamdani holds that institutional truth, such as that produced by the SATRC ‘ links truth to power’ and eventually translocates political compromise into moral compromise.¹⁰⁴He adds that“...in its eagerness to reinforce the new order…the [SA]TRC wrote the vast majority of apartheid’s\victims out of its version of history.”¹⁰⁵These conceptions of 'voice' and control of power resonate strongly with those of Agamben's Homo Sacer, Baxi's 'absent presences' and Derrida's 'those already there without being there.' In its attempt to create a public narrative within its conception of reconciliation, the SATRC created "a new form of sequestration of the ordinary South African was an unexpected result.”¹⁰⁶In the SATRC context, this begs the question: would increased representation and participation ensure the process achieved its goals? Would it have been better, for example, if the whites hadn't largely ignored (or been ignored by) its work?¹⁰⁷

Tobias explains that the SATRC addressed two kinds of memory, ‘common’ and ‘deep’. There are similarities between the ‘common’/’deep’ and ‘public’/’private’ dichotomies but none is entirely reducible to the other. According to Tobias, the SATRC addressed ‘common’ memory through its ‘ regulative ideal’ to ‘tell the whole story’: “[t]he contribution of the largest number of people to [its] process increases the odds of approaching a consensus on the truth, and thus, a settlement in national and public life.”¹⁰⁸It addressed the less accessible ‘deep memory’ through its key ‘deeply ethical and theological’ dimension: placing the suffering and loss of individual victims at the forefront of its proceedings. This focus on the victims “opens up the problem of deep memory in ways which are incompatible with the SATRC’s broader narrative strategy.”¹⁰⁹The incommensurability of deep to common memory raises the question: can historical responsibility be thought to exist between present generations and dimensions of past lives and experiences which are inaccessible to historical reconstruction? “Does our obligation to victims extend...to the memories of the inarticulate as well as the eloquent? Or is our responsibility as writers and scholars limited to those stories which, accessible to narrative reconstruction or scholarly analysis, are therefore of use in the construction of a reconciliatory or redemptive common memory?”¹¹⁰According to Tobias, it is the fragmented, disjointed, almost incoherent instances of truth telling and testimony during the course of the SATRC that hold just and emancipatory promise. This is truth for truth’s sake; Tobias criticises/cautions against our attempts to ‘ collectivise.’ These ‘fragments’ should “remind us of our obligation to remember, and at the same time remind us that what is remembered may be no more than an evocation, of lives and experiences beyond recall, but not beyond concern.”¹¹¹He concludes, “[f]or to bear witness to deep memory is to bear witness to a cry for justice that exceeds what may be delivered by any legal judgement or political settlement. It is to remember a cry for redemption that goes beyond the unity of either narrative or historical analysis. It requires...that ‘we keep watch over absent meaning.’”¹¹²Tobias is trying to explain that there are those aspects of memory that are beyond shared understanding. But there is good and justice in letting those who can utter them, for that sake only, whether or not their obstinacy, obscurity or sheer irrecovarability do not contribute to reconciliation. Therefore though he lauds the SATRC’s victim-centric approach and the fragmented instances of ‘deep memory’ it allowed us to glimpse, he is critical, that in the pursuit of conclusion or closure, reconciliation (read forgiving/forgetting) the SATRC as situated “individual memories within a framework of pre-existing historical knowledge and subject[ed] this memory to comparative and critical analysis.”¹¹³

In regards to memory and the individual, addressing the challenge of genuinely portraying human inwardness is particularly important. Holiday believes that there can be created “a conceptual space for genuine portrayals of human inwardness.”¹¹⁴Neither Halbwach's and nor Wittgenstein dismiss the possibility. Halbwachs alludes to some sort of repetitiveness by which we can then perfectly come to understand each other’s personal thoughts.¹¹⁵If this were the case, then indeed, a truth-telling forum such as the TRC could indeed represent the range of ‘truths’ and in doing so, provide a just foundation for healing a traumatised collective.¹¹⁶Rosenberg finds parallels between truth commissions and the therapeutic process that “helps individual victims deal with post-traumatic stress disorders.”¹¹⁷The SATRC did utilise some of these methods for example “the use of the word ‘trauma’ to describe not individual physical experiences but collective historical events…”¹¹⁸Minnow translocates the psychotherapeutic mechanism used to deal with traumatised individuals to the collective, identifying three key restorative elements a truth and reconciliation commission could address in the pursuit of healing for individuals and society: truth telling, a relationship between victims and sympathetic listeners and the establishment of affirmative roles for bystanders and perpetrators.¹¹⁹ She explains that though individuals do and must have their own responses to atrocity, institutional frameworks created by society can strengthen capacities for generosity and peace.¹²⁰“ Is it less...that private memories shape collective remembrance than vice versa? Does the challenge then become how we can create a collective memory that is multiple, flickering with many meanings that individual experience can collectively bring to it?”¹²¹

Others are more sceptical of these possibilities; Minnow asks “...is it a big mistake to analogize individual trauma to the difficulties at a national level following mass violence? Are truth commissions equipped either for helping individuals or for helping a nation?”¹²²According to Ignatieff "it is perilous to extrapolate from traumatised individuals to whole societies."¹²³Baxi seems to concur with the latter statement; he criticizes the concept of construction of memory as relating more to power than to justice and further states that, "public memory is not short but is made short by acts of dominance.”¹²⁴

5.2.2 Outcome-based

There are two ways to think of the outcome-based approaches to collective memory; in one sense, the inabilities of these collective responses to address the moral requirements identified in the procedural approaches in the last section are acknowledged.¹²⁵These failings can be taken into consideration and addressed in the best possible manner, but nonetheless the mechanism cannot be abandoned; its role in the generation of a public narrative performs an essential reconciliatory function upon which the moral and ethical requirements of the range of notions of justice do not/ought not have any bearing. The second sense is one in which the procedural requirements do not feature at all; all that is relevant is the role of these collective responses and their actual or apparent impact on public and private memory within the wider framework of a reconciliatory politics. Ultimately, central to both approaches is the common goal of ‘national reconciliation’: the end justifies the means. Winslow, for example, explains that the SATRC was designed to remedy national problems and restore the moral order on a national basis and therefore it was the needs of the nation and not individuals that were of paramount concern.¹²⁶Further, Kiss says “[c]ommissions can be used in promising ways to advance beneficent societal goals despite competing narratives of oppression, and bitter, if opposite, memories of evil”¹²⁷As such, what is important is not a complete historical portrait of a nation’s traumatic past or the contribution of each individual recollection to the public narrative but rather, in the interests of ‘reconciliation’, what stories ought to be included and what stories ought to be left out of this public narrative.¹²⁸

5.3 Collectivising memory as ‘bad politics’

“And it is political to remove from hate its eternity.”¹²⁹

Other would do away with the idea of reconciliation through truth telling and making sense of/coming to terms with the past; these view them as unnecessarily (re)opening old wounds and harming societal reconstruction. Indeed Gutmann et. al. describe reconciliation as an ‘illiberal aim’ “if an entire society is expected to embrace one comprehensive moral approach. It is undemocratic, too, for disharmony is desirable and an attribute of a healthy democracy.”¹³⁰Torpey asks the question, “[i]sn’t there a danger that struggling to redress history will become a substitute for working for a better future?...we no longer build a future, but content ourselves with liberating ourselves from our past.”¹³¹Torpey adds that “…a theological and therapeutic attitude towards coming to terms with the past has jostled with, if not supplanted, the quest of active citizens and mobilised constituencies for an alternative future.”¹³²“ A conception of history as redemption played a prominent role in the deliberations of the South African TRC despite the fact that it was at odds with many people’s desire for ordinary earthly justice and punishment.”¹³³Indeed Ignatieff and Minnow speak of ‘too much memory.’ “Too much memory may result from dwelling in the conflict between competing accounts that cannot be reconciled.”¹³⁴In the context of the SATRC these competing accounts might be ‘the ANC and its supporters or agents during the struggle for liberation committed atrocities’ versus ‘any action taken by the apartheid government against those protesting against its various oppressive manifestations, cannot be seen as just; “...the truth can never be full enough, or sufficiently embracing, to overcome intergroup divisions so deep that members see the world differently.”¹³⁵

Cassin talks of an ‘aesthetic politics’¹³⁶citing the Athenian ability after the decree of amnesty of 403 B.C. to “ use evil to make beautiful politics out of it;”¹³⁷“ The past events, it is not permitted to anyone to recall them ‘ against’ anyone”¹³⁸because “when one recalls the evils, one always recalls them ‘against’, one reproaches somebody for them, one meets out reprisals for them.”¹³⁹According to Aristotle, this decree of amnesia, a political act, “ thuswore out... the preceding evils in private and in public...in the most beautiful and the most political way; not only, in effect, did they erase the accusations bearing on the past, but they also took charge in common...of the loans [of previous adversaries]...In effect they reached the conclusion that it was in this manner that they would initiate consensus...”¹⁴⁰

“A political act par excellence is the one which manages, literally, to devastate the devastation, and to make the evil irreversibly become a greater good...[s]uch a political act...is in one way or another, an act of speaking. Not only is the decree written and promulgated, but it has the effect of stopping the characteristic words of the [civil war]...and to give them back their performative power...This reassurance of speech on its semantic and pragmatic bases produces a common language; and it is that itself which permits the passage from the “ I” to the “we”, the constitution of a “with”, of an “together”, of a con-sensus.”¹⁴¹

In ‘wearing out evil politically’ political action is the seesaw point which utilises an old state to pass towards a new state.¹⁴²Though Cassin notes that “wherreas in Athens one must ‘not remember’ nor “ recall”, in South Africa the imperative is one of ‘full disclosure’. ” The common thread between these two ‘political acts’ is that the “ [t]he finality is in effect not the truth, but the reconciliation. We do not search truth – disclosure...– for truth, but with a view to reconciliation...”

“The TRC is the political act which, like the Athenian decree of 403 BCE, makes a cut (‘a firm cut-off date’), and charges itself with using evil, to transform the misfortunes, mistakes and suffering, to make something good out of them, notably a past on which to construct the “we” of a ‘rainbow nation’”.

“[T]he act of story-telling performs the as yet unheard history of the South African community; and this community constitutes itself through this process, with ‘ history-history’ being unraveled from the ‘story histories’...” For South Africa, the past was ‘a hole or a series of distortions which cannotbe shared.’ “ Full disclosure and to tell the story are the instruments of the common construction of the past, to such an extent that “not having to answer to”, “not having to expect retaliation”, is a prerequisite for accounts to be finally settled and for the report to be finalized...”¹⁴³

Cassin is explaining that individual memory revealed through truth telling can be used to construct a future collective provided the ‘autonomy of the political’ is maintained. The purpose is therefore to prepare an as full account of past atrocity as possible, for no other purpose, than to ‘close the book’ on that chapter of history. That account is the shared language, the condition for membership of a deliberative society.¹⁴⁴In Cassin’s opinion, “reconciliation – effectively the production of a ‘we’ – is not a ethical affair but a political affair. A clear distinction must be made between the recognition of a fact – full disclosure – and contrition. The recognition of a fact is in itself a sign of belonging to a political community, while repenting and pardoning forms part of an entirely different sphere, ethical or religious.” It seems to those who take this ‘aesthetic politics’ point of view, to speak of morality or justice is to remove from the political its autonomy. Truth and truth-telling are not viewed as ‘good’ in themselves, but rather in relation to reconciliation; in the case of the SATRC, forgiveness and forgetting. Perhaps this frames the irony of the SATRC; whilst its principles were forged out of the morally charged principles of Tutulogy, its practice and procedure were, arguably, strictly functional, political and autonomous acts. This remains debatable as many commentators believe that the narrative structure of the SATRC was a moral endeavour meeting the demands of restorative justice in restoring the human and civil dignity of victims.¹⁴⁵

The three general approaches identified above seek to address or overcome the more ‘internal’ dimensions of individual and collectivised memory, little thought is given to the external monuments to trauma, inequality and injustice that a society’s populace and the individuals within it experience everyday which must be addressed. What I mean is whilst the true nature of an individual’s pain and suffering could be expressed and collectivised into a nations psyche, surely it is regressive if the tangible mechanisms that engendered this loss and/or the addressable results of the same remain unaddressed; hence the importance of Nancy Fraser’s thesis of a politics of recognition as well as a politics of redistribution. As Minnow concludes, “though it would be wrong to imagine that the [SATRC]...by itself could accomplish the reconstruction of societies devastated by violent and hostile divisions,...there are promising roles that a commission could play.”¹⁴⁶This would require other institutions to operate in tandem with a truth commission. The government of South Africa has all in all failed to act of the recommendations of the TRC committee on reparations handed to President Mbeki in 2003 which included specific reparations, land reform, the redesign of educational and medical systems and other reforms to address the massive economic imbalances in the country.¹⁴⁷However much we may try and conceive a 'proper' TRC, these difficulties of social context, political affiliations and cultural backgrounds will always leave lasting impressions on our memory.

6. Thoughts on the Kenyan Project

6.1 Reconciliation at the TJRC

A TJRC operating as envisioned in its constitutive Act illustrates a belief that reconciliation can be fostered through the creation, re-creation or moulding of collective memory through these public truth-telling fora. Whether this is approached from the moralist or instrumentalist perspectives remains to be seen upon its beginning its work. There are significant structural and contextual differences between the South African and Kenyan commissions. However, the one clear point of convergence is the creation of an autonomous institution to provide a forum for truth telling and the revelation of truth; for the creation of a public narrative, moulding collective memory towards the reconciliation of a divided and traumatised society. The public/private nature of memory as noted above renders these exercises in collective memory challenging and problematic. In the case of the SATRC, this study considers how moulding a collective memory through forgiveness, as the primary element within its notion of reconciliation, actually fostered a species of forgetting. The TJRC differs significantly in this regard; it has an expanded notion of reconciliation; the elements therein are an amalgam of forgiveness, prosecution and restitution.

The initial discussions on the TJRC had a reconciliatory theme similar to those of the SATRC in regard to amnesty.¹⁴⁸This however did not translate into the Act which has taken a relatively prosecutorial approach. Therefore, whereas, as is argued in this paper, the reconciliatory theme within the SATRC was based on forgiveness, the TJRC seems to have rejected this approach; basing its reconciliatory theme upon a limited amnesty combined with a significant role for prosecution and restitution.¹⁴⁹Amnesty, at the TJRC, is conditional and is merely a recommendation to the Attorney General, who must then take it into account when considering continuing or instituting proceedings against an alleged perpetrator. The TJRC Act expressly states that though a party may apply for amnesty in regard to any act being investigated by the Commission, no amnesty will be recommended in regard to gross human rights violations. (See s. 34 TJRC Act). Further, amnesty shall not be recommended until the Commission considers the reasonable objections of the victim/s and in regard to economic crimes, unless restitution has been made. The TJRC can recommend the prosecution of persons responsible for or involved in human rights and economic rights violations and abuses. In regard to reparation and restitution, the TJRC can recommend the policy that should be followed or measures that should be taken with regard to the granting of reparation to victims or the taking of other measures aimed at rehabilitating and restoring the human and civil dignity of victims.

This broad notion of reconciliation is necessary because of the Kenyan context which, as explained in section 2.1 above is particularly challenging and multifarious (dealing with incidents since 1963, spanning four governments, across over 20 tribal divisions, involving a number of political parties and in diverse rural and urban environments many of which remain embroiled in latent and manifest violence and atrocity.) In South Africa, there was a fundamental break; the abolition of apartheid and the SATRC was setup to deal with the gross human rights violations emanating from this system. In Kenya however, there has been no fundamental system change; the power structures as well as individuals which facilitated the violations and atrocities to be investigated by the TJRC subsist today. Further, in Kenya, there is no all encompassing experience, particularly in regard to gross human rights violations, that was experienced by majority of the nation; the violation and dispossession of one community, group or individual translates into the rights and entitlement of another. The experience of the violated in North Kenya, for example, is completely alien to the experiences of those in the central Rift Valley or the Coast Province. Hence the task of reconciliation one part of the country is completely different to the task of reconciliation in others. Beyond gross human rights violations, the TJRC must consider economic crimes and the violation of economic rights.¹⁵⁰This perhaps more accurately reflects the violations and injustices that majority of Kenyans can relate to. In this regard, it makes more sense to speak of nationalreconciliation.

Following this complex context and particularly relevant to the method the TJRC adopts in collectivising memory is the wider mandate; The objectives of the TJRC set out in section 5 of the Cap. 6, are, in summary, to promote peace, justice, national unity, healing, and reconciliation among the people of Kenya by:

Establishing an accurate, complete and historical record of violations and abuses of human rights and economic rights inflicted on persons by the State, public institutions and holders of public office, both serving and retired, between 12th December, 1963 and 28th February 2008 by conducting investigations and holding hearings.¹⁵¹
Establishing as complete a picture as possible of the causes, nature and extent of the gross violations of human rights and economic rights which were committed during the period between the 12th December, 1963 and the 28th February 2008 by conducting investigations and holding hearings.¹⁵²
Investigating gross human rights violations and violations of international human rights law and abuses which occurred, including massacres, sexual violations, murder and extra-judicial killings and determining those responsible for the commission of the violations and abuses.
Recommending the prosecution of the perpetrators of gross human rights violations.
Determining ways and means of redress for victims of gross human rights violations.
Facilitating the granting of conditional amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with gross human rights violations and economic crimes and who comply with the Act.
Providing victims, perpetrators and the general public with a platform for non-retributive truth telling that charts a new moral vision and seeks to create a value-based society for all Kenyans.
Providing victims of human rights abuses and corruption with a forum to be heard and restore their dignity.
Providing repentant perpetrators or participants in gross human rights violations with a forum to confess their actions as a way of bringing reconciliation.
Compiling a report providing as comprehensive an account as possible of the activities and findings of the Commission with recommendations on measures to prevent the future occurrence of such violations.

The TJRC is vested with wide investigatory powers as well as powers to recommend prosecution as well as reparation to victims. These include the power to investigate economic crimes including grand corruption, inquire into the irregular and illegal acquisition of public land, investigate and establish the nature of economic marginalisation of communities and make recommendations on how this should be addressed, inquire into the misuse of public institutions for political objectives, and inquire into the causes of ethnic tensions and make recommendations on the promotion of healing, reconciliation and co-existence among ethnic communities. It also has powers to educate and engage the public in order to achieve its objectives, make policy recommendations as well as recommendations with regard to the creation of institutions conducive to a stable and fair society and the institutional, administrative and legislative measures that should be taken or introduced in order to prevent the future violations.

The TJRC enables a wider range of participants due to its definition of the term ‘victim’. Unlike the the SATRC whose focus was solely upon victims of human rights violations, the TRJC, describes a ‘victim’ as:

any person who, or group of persons, which, with the occasion or because of the human rights violation, has suffered any individual or collective harm, loss or damage by acts or omissions which violate the rights granted under the Constitution or any written law in Kenya, International Human Rights Law and International Criminal Law.

This definition is not limited to gross human rights violations but includes the full raft of possible human rights violations, political, social, economic and cultural, recognised and protected under domestic and international laws. This, for example, impacts upon the institutions ability to make prescriptions and policy recommendations that would fulfil the wider tasks of addressing the ‘public monuments’ in private and public memory mentioned above. In terms of advice and policy recommendations¹⁵³, the mandate of the SATRC is limited to the Act’s definition of victims¹⁵⁴.

Whilst it remains to be seen which elements within the TJRC’s notion of reconciliation will be privileged if at all, what stories will be privileged and which will be silenced; which techniques the TJRC will utilise to portray ‘human inwardness’ , the expansive mandate and potential breadth of victim participation suggests a more holistic approach to the collectivising of memory at the TJRC. Wide participation may go a long way to fulfilling the moralist opinion that all voices must be heard and all stories heard; essentially generating a more truthful and inclusive narrative. Further, the ability of the TJRC to entertain and investigate matters beyond gross human rights violations most particularly the structure and incidence of the socio-economic conditions across the country means it has the potential to address those ‘external monuments’ explained at the end of section 5 above.

6.2 Obstacles

Should the TJRC operate as it is envisaged in the Act, this wide mandate and potential for extensive participation could mean greater success in its reconciliatory task. There are however a number of significant factors that could hinder the TJRC’s method.

6.2.1 Ambiguity

There is some ambiguity within a number of significant provisions of the Act. The Act describes reparations as “dignifying the victims by measures that will alleviate their suffering, compensate their social, moral and material losses, restitute their rights.” Though under section 6(k) it has wide powers to recommend policy and measures for the reparation of victims, the Act only expressly provides for the application for reparation by victims of gross human rights violations.¹⁵⁵It only further mentions the recommendation for reparation to a victim in relation to amatter upon which amnesty has been recommended.¹⁵⁶Section 42(4) allows the Commission to develop regulations in regard to reparations¹⁵⁷; these regulations must remedy this lacunae and adopt comprehensive provisions that address the all victims, not just those in the two categories mentioned above.

Prosecutions can only be in regard to perpetrators of gross human rights, where, arguably, the reading of gross human rights is up to interpretation i.e. what are ‘ fundamental human rights’? Further, it appears that, whereas the TJRC can investigate a wide range of violations relating to human rights and economic rights abuses as well as economic crimes, it can only recommend prosecution in regard to gross human rights violations. This may give rise to a situation where, persons are investigated for serious acts of corruption, however, though the TJRC cannot recommend amnesty until there is restitution, it also has no power to recommend prosecution. Further, under section 36(9)(c) confessions and admissions made during an amnesty application cannot be used in subsequent legal proceedings whether or not amnesty is granted.

6.2.2 Undeveloped institutional relationships

Though directly mentioned in the Act, the relationship between the TJRC and the Attorney General’s office and the judiciary remains underdeveloped. Additionally, the potentially vital and useful relationship between the TJRC and civil society is not adequately addressed in the Act. The TJRC was envisaged to be but one part of a wider reform agenda that included comprehensive constitutional reforms, electoral reform, parliamentary reform, police reform, legaland judicial reforms as well as a commitment to wider legislative, structural, political and economic reforms as would be deemed necessary.¹⁵⁸It was therefore necessary for a comprehensive consideration of the relationship between the TJRC and the relevant institutions in these sectors. During the operation of the TJRC it will undoubtedly interact with various organs such as the police and the judiciary however even basic guidance on the nature of these interactions is lacking in the Act.¹⁵⁹In another example, though section 25(7) provides for the safe treatment of victims and witnesses, it is not clear whether the Witness Protection Programme and the provisions under the Witness Protection Act (Act No. 16 of 2006) apply to the TJRC. As explained by Amnesty International, “the [Act] does not include any provisions establishing comprehensive, long-term and effective protection measures for victims and witnesses.”¹⁶⁰

Under section 8(a) the TJRC may enter into association with such other bodies or organizations as it may consider desirable or appropriate and in furtherance of the purpose for which the Commission is established.There is scope for the development of procedure and regulations in this regard; under the Third Schedule to the Act, the Commission, within the provisions of the Act, governs its own procedure. The Minister responsible for matters relating to justice and constitutional affairs can make regulations generally for the better carrying into effect any of the provisions of the Act.¹⁶¹

6.2.3 No Amnesty

The lack of amnesty for perpetrators of gross human rights violations might prove problematic. Amnesty in relation to politically motivated acts was a central tenet of the SATRC. The TJRC makes no distinction in regard to gross human rights violations as a result of politically motivated acts. The conditional amnesty at the SATRC to some extent enabled those who might otherwise have been prosecuted under national laws to come forward and disclose the nature and circumstances of their actions and offences. This element does not exist tangibly in the TJRC; therefore, whilst victims might come forward in considerable numbers to narrate their grievances, it remains to be seen whether perpetrators of these offences would come forward to explain their role in the same. How will this impact the the national narrative the TJRC hopes to construct towards reconciliation?

6.2.4 Perennial impunity

Kenya has a long and unfortunate history with commissions of inquiry and task forces established to investigate, interview and reveal the truth into a number of incidences. Indeed, what you have in Kenya is not a lack of truth, but rather, entrenched political impunity. The perceptions of a majority of Kenyans is that significant amounts of time and money is spent on commissions and inquiries who’s recommendations are either kept confidential or largely ignored. The TJRC hopes to address these concerns through its ‘implementation committee’. The TJRC’s final report¹⁶² will be widely disseminated and tabled in Parliament; Within the report, the TJRC must set out an institutional mechanism and framework for the implementation of its recommendations. Within six months of the publication of this report, this mechanism shall become operational and will monitor the implementation of the recommendations of the Commission and to facilitate their implementation. The implementation committee must publish quarterly reports to the public evaluating the efforts of the Government and the efforts of any other person or body concerned in implementing the recommendations of the Commission.

6.3 Conclusion

Once it has been decided as in both the Kenyan and South African cases that national reconciliation can be fostered through the creation, re-creation or moulding of collective memory through these public truth-telling fora, that institutions ability to address both the public/private dimensions of memory lies at the crux of any pervasive and meaningful attempt. Deserving equal appreciation are the ‘external monuments’ that remain as testament to previous and continuing suffering and marginalisation. These external monuments to public and private memory include wealth disparities: those who benefited and continue to benefit from the criminal and despotic regimes of the past; landlessness and land disputes: the forced colonial and post-colonial acquisition of land, the illegal allocation of government lands, as well as the displacement of communities during the post-independence ethnic and communal clashes; the failure for redress and cases pending in court: relating to land disputes, allegations of corruption, electoral fraud and human rights abuses; and ethnic tensions that continue to this day both in rural and urban areas across Kenya. Unlike the SATRC, the TJRC has the potential to consider the structural causes of political, social and economic conflicts. This more holistic approach recognises that a politics of recognition, in terms of individuals and communities being able to publicly narrate their stories and their rights and suffering recognised must go hand in hand with a politics of redistribution; a comprehensive redistribution that does not only remedy the result of a particular act or omission, but addresses its facilitative conditions as well. A considerable percentage of the incidents and allegation to be investigated by the TJRC involve economic crimes and violations of economic rights and the repercussions of these activities. In this respect, the removal of tangible and economic monuments to suffering and marginalisation will be particularly important. The experience of the SATRC remains useful if not slightly equivocal; it indicates the difficulties a truth commission faces, particularly within the sphere of reconciliation. The TJRC has adopted a more comprehensive approach mirroring the contextual circumstances of Kenya; this includes a broader notion of reconciliation, and expansive mandate and the potential for wider victim participation. This approach is difficult and challenging, indeed, some have suggested unmanageable;¹⁶³however this only reflects the magnitude of the task of reconciliation in the Kenyan context.

Endnotes

1 Kenyans for Peace with Truth and Justice (KPTJ) (2007) ‘Kenyan Elections Observers’ Log: December 29-30, 2007’, http://www.knchr.org/dmdocuments/KPTJ_Press_Release.pdf 18 November 2009.

2 Rotberg, R (2000) ‘Truth Commissions and the Provisions of Truth, Justice and Reconciliation’, in Rotberg, R and Thompson, D (eds.) Truth v. Justice (Princeton: Princeton University Press) pp. 3-22 at p. 4 & p. 6.

3 Minnow, M. (2000) ‘Hope for Healing: What Can Truth Commissions Do?’ in Rotberg, R and Thompson, D (eds.) Truth v. Justice (Princeton: Princeton University Press) pp 235-260 at p. 237.

4 Lyons, B (1997) ‘ Between Nuremberg and Amnesia: The Truth and Reconciliation Commission in South Africa’, Monthly Review, 49(6) at p. 1

5 Mamdani, M. (1996) Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism (Princeton: Princeton University Press) at p. 102 “ It is estimated that forced removal uprooted more than 3.5 million people, or more than 10 percent of the South African population - labor tenants, farm squatters, and city residents - between 1960 and 1985.”

6 Republic of Kenya (2003) Report of the Task Force on the Establishment of a Truth, Justice and Reconciliation Commission (Nairobi: Government Printer) at p. 11

7 Republic of Kenya (2003) Report of the Task Force on the Establishment of a Truth, Justice and Reconciliation Commission (Nairobi: Government Printer) at p. 16

8 The Panel of Eminent African Personalities members are H. E. Kofi Annan, H. E. Benjamin Mkapa and Dame Graca Machel-Mandela; the negotiating teams are Hon. Martha Karua, Hon. Mutula Kilonzo, Hon. Sam Ongeri, Hon. Moses Wetangula and Mr. Gichara Kibara for the Government of Kenya/Party of National Unity and Hon. Musalia Mudavadi, Hon. Sally Kosgei, Hon. James Orengo, Hon. William Ruto and Mr. Caroli Omondi representing the opposition/Orange Democratic Movement.

9 Kenya National Dialogue and Reconciliation (2008) ‘Public Statement’, http://rescuekenya.files.wordpress.com/2008/02/annan-kndr-2nd-agreement-4feb08.pdf 18 November 2009.

10 Ibid at p. 2

11 Kenya National Dialogue and Reconciliation (2008) ‘Agenda Item Three: How to resolve the Political Crisis’, http://www.dialoguekenya.org/docs/14_Feb_08_TsavoAgreement.pdf 18 November 2009.

12 Kenya National Dialogue and Reconciliation (2008) ‘Truth, Justice and Reconciliation’, http://www.dialoguekenya.org/docs/KenyanNationalDialogue_Truth&Justice.pdf 18 November 2009.

13 Republic of Kenya (2003) Report of the Task Force on the Establishment of a Truth, Justice and Reconciliation Commission (Nairobi: Government Printer) at p. 19

14 The assassination and murder of prominent Kenyans include those of Pio Gama Pinto, J.M. Kariuki, Dr. Robert Ouko, and Father Anthony Kaiser.

15 See the Akiwumi Reports.

16 Including but not limited to acts of torture, killing, abduction and severe ill-treatment of any person, imprisonment or other severe deprivation of physical liberty, disappearances, detentions, sexual violations, and expropriation of property.

17 According to the Act ‘crimes against humanity’ means murder; extermination, enslavement, deportation or forcible transfer of population, imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, torture, rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other form of sexual violence of comparable gravity, persecution against any identifiable group or collectivity on political, racial, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible under international law, enforced disappearance of persons and other inhuman acts of a similar character intentionally causing great suffering, or serious injury to the body or to mental or physical health where any of these acts were committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.

18 Public land can be categorised as urban, state corporations’ and ministries’ lands; settlement schemes and trust land; and forestlands, national parks, game reserves, wetlands, riparian reserves, protected areas, museums and historical monuments.

19 Republic of Kenya (2004) Report of the Commission of Inquiry into the Illegal/ Irregular Allocation of Pubic Land (The Ndungu Report) (Nairobi: Government Printer).

20 See Southall, R. (2005) ‘The Ndungu Report: Land and Graft in Kenya’ Review of African Political Economy 103, pp.142-51.

21 See The Kroll Report, The Bosire Report, The Waki report, The Githongo Dossiers.

22 Reconcile: to restore (e.g. opposing factions) to friendship or harmony. Reconciliation: the act or an instance of reconciling, esp. a renewed state of harmony or agreement that exists between two previously opposing groups. Allen, R. (ed.) (2004) The Penguin Dictionary, Penguin Books, London at p. 1168. This is obviously not the meaning intended in this essay. It assumes some sort of restoration to a previously harmonious state.

23 “Reconciliation could mean minimal agreement to coexist and cooperate, or a stronger commitment to forgive and unify.” See Minnow, M. (2000) ‘Hope for Healing: What Can Truth Commissions Do?’ at p. 250. As Wilson states: “its meanings proliferated and transformed during the life of the commission.” Wilson, R. A. (2001) The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State (Cambridge: Cambridge University Press)

24 Zyl, P. (1999) Dilemmas of Transitional Justice: The Case of South Africa's Truth and Reconciliation Commission at p. 663

25 Wilson, R. A. (2001) The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State at p. 97

26 Ibid at pp. 97 - 98

27 Mamdani, M. (2000) ‘The Truth According to the TRC’ in Amadiume, I. and Abdullahi A. (eds) (2000) The Politics of Memory: Truth, Healing, and Social Justice (New York: Zed Books) pp. 176 – 183 at p. 182

28 Zyl, P. (1999) Dilemmas of Transitional Justice: The Case of South Africa's Truth and Reconciliation Commission at p. 662

29 Hamber, B. and van der Merwe, H. (1998) ‘What is this thing called Reconciliation?’ Reconciliation in Review 1(1), pp.3-6 at p. 3.

30 Wilson, R. A. (2001) The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State at p. 100

31 Speech by TRC Commissioner Wyland Malan on February 1997 quoted in ibid at p. 101

32 I contend in this context it is forgiveness and forgetting. The latter may seem absurd as it appears that the TRC was trying to ensure remembrance. But what were they trying to make the collective remember, and why is this problematic?

33 Battle, M. (2000) ‘A Theology of Community: The Ubuntu Theology of Desmond Tutu’, 54(2) Interpretation, pp. 173 – 182 at p. 173

34 Collins Concise Dictionary (1999) HarperCollins Publishers, Glasgow. at p. 1235

35 Battle, M. (2000) ‘A Theology of Community: The Ubuntu Theology of Desmond Tutu’, 54(2) Interpretation, pp. 173 – 182 at p. 178

36 Lyons, B. S. (1997) ‘Between Nuremberg and Amnesia: The Truth and Reconciliation Commission in South Africa’, Monthly Review, 49(6) at p. 2

37 Wilson, R. A. (2000) ‘Reconciliation and Revenge in Post-Apartheid South Africa’, Current Anthropology 41(1), pp. 75-98 at p. 82.

38 Bozzoli, B. (1998) ‘Public Ritual and Private Transition: The Truth Commission in Alexandra Township, South Africa 1996’, African Affairs 57(2), pp. 167-195 at p. 170

39 Ibid at p. 171

40 Shea, D. (2000) The South African Truth Commission: The Politics of Reconciliation (Washington D.C.: United States Institute of Peace Press) at p. 4.

41 Former Archbishop Desmond Tutu at a Human Rights Violation Commission hearing 'in Klerksdorp, September 23, 1996 in Meredith, M. (1999) Coming to Terms: South Africa's Search for Truth (Oxford: Public Affairs Limited) at p. 19.

42 "A complex mnemonic readjustment designed to diffuse political discord by denying the ideological reasons for the conflict." in Henderson, W. (2000) ‘Metaphors, Narrative and 'Truth': South Africa's Truth and Reconciliation Commission’, African Affairs 99, pp. 457 - 465 at p. 461

43 Wilson, R. A. (2000) Reconciliation and Revenge in Post-Apartheid South Africa at p. 80

44 Ibid at p. 81

45 Desmond Tutu quoted in ibid at p. 81

46 Ibid at p. 81

47 The principals in the events that led to the Night Vigil Massacre and subsequent retaliatory acts.

48 Wilson, R. A. (2000) Reconciliation and Revenge in Post-Apartheid South Africa at p. 83-85

49 See Meredith, M. (1999) Coming to Terms: South Africa's Search for Truth at pp. 37-38, 2932, and 78-112.

50 Wilson, R. A. (2001) The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State at p. 33

51 Cassin, B. (2002) ‘The Politics of Memory: How To Treat Hate’, Quest: An African Journal of Philosophy 15(1-2), pp. 18-35 at p. 18.

52 See Bozzoli, B. (1998) ‘Public Ritual and Private Transition: The Truth Commission in Alexandra Township, South Africa 1996’, African Affairs 57(2), pp. 167-195 at p. 170.

53 In regards to the SATRC’s task of creating a ground for social reconciliation Mamdani comments “[t]he irony is that not only did the TRC fail…one wonders whether it may actually have eroded the ground for it [social reconciliation]” Mamdani, M. (2000) ‘The Truth According to the TRC’ at p. 182 at p. 181. Vora et al. performed a study into perceptions on the SATRC across three ethnic groups, the Xhosa, Afrikaners and English South Africans and found that “the TRC was perceived to have been much less successful in bringing about reconciliation than in bringing out the truth”. Vora, J. A. and Vora, E. (2004) ‘The Effectiveness of South Africa's Truth and Reconciliation Commission: Perceptions of Xhosa, Afrikaner, and English South Africans’, Journal of Black Studies 34(3), pp. 301-322 at p. 317. In this study, perceptions differed widely between the groups with opinions amongst the two white groups largely being that the SATRC had failed in its goals of bringing about national reconciliation and further had been detrimental to the political and economic development of the country. Gibson on the other hand has undertaken a public survey of ordinary South Africans from which he concludes that “...compelling evidence that the truth produced by the TRC may indeed have contributed to greater reconciliation in South Africa... South Africa’s truth and reconciliation process seems to have produced a truth that contributed to reconciliation, and most South Africans recognize and appreciate that.” See Gibson, J. L. (2005) ‘The Truth About Truth and Reconciliation in South Africa’, International Political Science Review 26(4), pp. 341–361 at p. 356

54 Holiday, A. (1998) ‘Forgiving and Forgetting: the Truth and Reconciliation Commission’ at p. 44

55 Baxi, U. (2002) Memory and Rightlessness (New Delhi: Centre for Women's Development Studies) at p. 11.

56 Milan Kudera quoted in Baxi, U. (2002) Memory and Rightlessness at p. 1

57 Daye, R. (2004) Political Forgiveness: Lessons From South Africa (New York: Orbis Books) at p. 18

58 “Emphasis was placed on the offender, who was required to bring the sinful act to confession and carry out the penance prescribed by the priest. The power to forgive was sometimes abused by the Church…During the Protestant Reformation and the Counter-Reformation most of these abuses were curtailed, but many if not most Christians still understand forgiveness offered by God to be more important than that offered by the victim.” Daye, R. (2004) Political Forgiveness: Lessons From South Africa at p.19

59 Osiel, M. (2000) Mass Atrocity, Collective Memory and The Law (New Jersey: Transaction Publishers) at p. 25

60 Tobias, S. (1999) ‘History, Memory and the Ethics of Writing: Antjie Krog’s Country of My Skull’ at p. 6.

61 Desmond Tutu quoted in Krog, A.

62 Interim report quoted in Tobias, S. (1999) ‘History, Memory and the Ethics of Writing: Antjie Krog’s Country of My Skull’.

63 Wilson describes the impasse between the proponents of the ‘just war’ policy and those who favoured a uniform application of the Act as the biggest crisis of the whole process; one upon which Tutu threatened to resign had the ANC not later conceded to the uniform application.

64 Star 4 November 1996 cited in ibid at p. 104. It is an ambiguous claim, on the one hand, Tutu says morality doesn’t matter, but on the other he introduces this very morality couched within the idea of forgiveness/amnesty.

65 Wilson, R. A. (2000) ‘Reconciliation and Revenge in Post-Apartheid South Africa’, Current Anthropology 41(1), pp. 75-98 at p. 80

66 Foucault, M. (1975) ‘Film and Popular Memory: An Interview with Michel Foucault’ Radical Philosophy 11, pp. 24-29 at p. 25 quoted in Osiel, M. (2000) Mass Atrocity, Collective memory and The Law at p. 210.

67 Halbwachs, M., (1992) On Collective Memory (London: University of Chicago Press) at p. 24.

68 Holiday, A. (1998) ‘Forgiving and Forgetting: the Truth and Reconciliation Commission’, at p. 47

69 Halbwachs, M. (1992) On Collective Memory, at p. 167

70 Fraser, N. (2000) ‘Rethinking Recognition’, New Left Review 3, pp. 107 – 120 at p. 109

71 Halbwachs, M., (1992) On Collective Memory at p. 182

72 Baxi, U. (2002) Memory and Rightlessness, at p. 10

73 Halbwachs, M. (1992) On Collective Memory, at p. 169

74 An individual who can "keep a private record of recurrences of a certain sensation by associating it with a given sign and using this sign to mark each occurrence of the sensation" in Holiday, A. (1998) ‘Forgiving and Forgetting: the Truth and Reconciliation Commission’, at p. 50

75 Halbwachs, M. (1992) On Collective Memory at p. 167

76 Ibid at p. 171

77 Nuttall, S. (1998) ‘Telling ‘ Free’ Stories?: Memory and Democracy in South African

Autobiography since 1994’, in Nuttall, S. and Coetzee, C. (eds.), Negotiating the Past: The Making of Memory in South Africa pp.75–88 at p. 76.

78 Tobias, S. (1999) ‘History, Memory and the Ethics of Writing: Antjie Krog’s Country of My Skull’, at p. 2.

79 Ibid at p. 2.

80 Ibid at p. 3.

81 Often miscalled 'argument.'

82 Holiday, A. (1998) ‘Forgiving and Forgetting: the Truth and Reconciliation Commission’ at p. 51

83 Wittgenstein recognises the possibility of a 'private diarist.'

84 Holiday, A. (1998) ‘Forgiving and Forgetting: the Truth and Reconciliation Commission’ at p. 53

85 Ibid at p. 54.

86 Bozzoli, B. (1998) ‘Public Ritual and Private Transition: The Truth Commission in Alexandra Township, South Africa 1996’ at 170.

87 Holiday, A. (1998) ‘Forgiving and Forgetting: the Truth and Reconciliation Commission’ at p. 53.

88 Halbwachs, M., (1992) On Collective Memory at p. 167.

89 Holiday, A. (1998) ‘Forgiving and Forgetting: the Truth and Reconciliation Commission’ at p. 44.

90 Ibid at p. 43.

91 Ibid at p. 45.

92 Bozzoli, B. (1998) ‘Public Ritual and Private Transition: The Truth Commission in Alexandra Township, South Africa 1996’ at p. 193.

93 Mamdani, M. (2000) ‘The Truth According to the TRC’ at p. 183: “To reflect on the experience of the TRC is to ponder the harsh truth, that it may be easier to live with yesterday’s perpetrators who have lost power than to live with beneficiaries whose gains remain intact.”

94 Halbwachs, M., (1992) On Collective Memory at p. 43.

95 Winslow, T. (1997) ‘Reconciliation: The Road to Healing? Collective Good, Individual Harm?’ at p. 5

96 Halbwachs, M., (1992) On Collective Memory at p. 22.

97 Ibid.

98 Though there is only a thin grey line between these two positions the distinction remains important. The former retains the moral elements of justice and legitimacy while the latter is more functionalist.

99 Osiel, M. (2000) Mass Atrocity, Collective memory and The Law at p. 211.

100 Ibid at p. 212.

101 Elster, J. (1983) Sour Grapes: Studies in the Subversion of Rationality (Cambridge: Cambridge University Press) at p. 43 cited in Osiel, M. (2000) Mass Atrocity, Collective memory and The Law at p. 211

102 Schudson, M. (1995) ‘Dynamics of Distortion in Collective Memory’ in Schacter, D. L. (ed.) Memory Distortion: How Minds, Brains, and Societies Reconstruct the Past (Cambridge, Mass.: Harvard University Press) quoted in Osiel, M. (2000) Mass Atrocity, Collective memory and The Law at p. 212 fn. 15.

103 Daye, R. (2004) Political Forgiveness: Lessons From South Africa (New York: Orbis Books) at p. 12

104 Mamdani, M. (2000) ‘The Truth According to the TRC’ at p. 177

105 Ibid at p. 183.

106 Bozzoli, B. (1998) ‘Public Ritual and Private Transition: The Truth Commission in Alexandra Township, South Africa 1996’ at p. 193.

107 Meredith, M. (1999) Coming to Terms: South Africa's Search for Truth (Oxford: Public Affairs Limited) at p. xvii; see also Truth and Reconciliation Commission of South Africa Report, Volume Number 6.

108 Tobias, S. (1999) ‘History, Memory and the Ethics of Writing: Antjie Krog’s Country of My Skull’ ,at p. 6.

109 Ibid at p. 7.

110 Ibid at p. 7

111 Ibid at p. 13.

112 Ibid at p. 14.

113 Tobias, S. (1999) ‘History, Memory and the Ethics of Writing: Antjie Krog’s Country of My Skull’.

114 Holiday, A. (1998) ‘Forgiving and Forgetting: the Truth and Reconciliation Commission’ at p. 41

115 Halbwachs, M., (1992) On Collective Memory at p. 167

116 On a related subject, Osiel advocates the adversarial legal system as most effective and indispensable as a “means by which the capacities of the individual may be lifted to the point where he gains the power to view reality through eyes other than his own;” especially where conflict between parties has already reached a point of deep mutual incomprehension. He does not dismiss the general ability of a juridical mechanism to effectively mould or re-create collective memory; he just thinks the adversarial system would be more accomplished in this task. See Chapter 8, Making Public Memory, Publicly in Osiel, M. (2000) Mass Atrocity, Collective Memory and The Law (New Jersey, Transaction Publishers).

117 Rosenberg concludes, “If the whole nation is suffering from post-traumatic stress disorder, this process [of telling stories to someone who listens seriously and who validates them with official acknowledgement] would be appropriate for the whole nation.” Rosenberg, T. (1995) The Haunted Land: Facing Europes Ghosts after Communism (New York:) at p. 26 as quoted in Minnow, M. (2000) ‘Hope for Healing: What Can Truth Commissions Do?’.

118 Supra note 98 at p. 4.

119 Minnow, M. (2000) ‘Hope for Healing: What Can Truth Commissions Do?’ at p. 243.

120 See ibid at p. 253.

121 Nuttall, S. (1998) ‘Telling ‘Free’ Stories?: Memory and Democracy in South African

Autobiography since 1994’ at p. 88.

122 Minnow, M. (2000) ‘Hope for Healing: What Can Truth Commissions Do?’ at p. 241.

123 Ignatieff, M. (1996) ‘Articles of Faith’, Index on Censorship 25(5), pp. 110 – 122 at p. 110.

124 Baxi, U. (2002) Memory and Rightlessness (New Delhi: Centre for Women's Development Studies) at p. I

125 Minnow queries, “[c]an collective responses to mass violence redress trauma, or at least do so with the same acknowledgement of ultimate inadequacy that must accompany any public response to genocide, torture and mass rapes?” Minnow, M. (2000) ‘Hope for Healing: What Can Truth Commissions Do?’ at p. 235. This ‘ultimate inadequacy’ could be due to the private nature of memory, and the inability of collective responses to mass atrocity to address this more individual dimension.

126 Winslow, T. (1997) ‘Reconciliation: The Road to Healing? Collective Good, Individual Harm?’ at p. 3.

127 Rotberg, R (2000) ‘Truth Commissions and the Provisions of Truth, Justice and Reconciliation’ , at p. 11.

128 See Becker, C. (1999). Memory/Monstrosity/Representation. Paper presented at the TRC: Commissioning the Past Conference, University of the Witwatersrand, Johannesburg, 7-9 June 1999 at p. 24. See also Andrews, M. (2003) ‘Grand National Narratives and the Project of Truth Commissions: a Comparative Analysis’ Media, Culture & Society, Vol. 25(1), pp. 45-65 at p. 46

129 Cassin quotes Plutrach in Cassin, B. (2002) ‘The Politics of Memory: How To Treat Hate’ at p. 18

130 Rotberg, R (2000) ‘Truth Commissions and the Provisions of Truth, Justice and Reconciliation’ at p. 9.

131 Torpey, J. (2003) The Entrepreneurs of Memory at p. 1

132 Ibid at p. 4

133 Ibid at p. 4

134 Minnow, M. (2000) ‘Hope for Healing: What Can Truth Commissions Do?’ at p. 241.

135 Ibid at p. 241.

136 Cassin, B. (2002) ‘The Politics of Memory: How To Treat Hate’ at p. 23

137 A point confirmed by Isocrates in a passage in Against Callimachus (46): ‘Since, converging towards the same, we have mutually given each other the marks of confidence, we politicise with so much beauty and so much community that it is as if no evil ever struck us. Before, everyone judged us to be the most foolish and most unhappy, at present it well seems that we are the happiest and wisest of the Greeks.’ Cassin, B. (2002) ‘The Politics of Memory: How To Treat Hate’> at pp. 21-24

138 Amnesty Decree in the Constitution of Athens

139 Cassin, B. (2002) ‘The Politics of Memory: How To Treat Hate’ at p. 21 See Plato, Letters 7, 336 e-337 a: ‘a city in stasis (civil war) does not know the end of its evils but when its conquerors ceases to mnesikakein (remember evils) by expulsions or by cutting throats’

140 Aristotle as quoted in Cassin, B. (2002) ‘The Politics of Memory: How To Treat Hate’at p.22

141 Ibid at p.24

142 Ibid at p. 23. “In my opinion there exist two grand philosophical gestures, and two only, to articulate truth with public deliberative politics. The position just mentioned I call “the autonomy of the political”. It denies that truth and good are identical or, by implication, that they are mutual inferences. The second option, quite popular among philosophers, could be called “ the heteronomy of the political”. Here ontology determines politics. Being and truth are the key criteria to assign value.” See p. 25

143 In the Athenian case, “... the issue is not how to bring the past to light, everything is immediately known by everyone, it is forgetting that must be constructed.” (Emphasis added). In the Athenian and South African examples, “[h]ere are two opposite prescriptions, posited centuries from each other, but on the base of a common horizon of speech, of deliberation – of parole publique – and leading up to the same kind of finality by virtue of the autonomy of the political.” Ibid at p. 29.

144 “Shared language is the minimum requirement for a “we” to appear. Such sharing even implies that one consents to practices such as the TRC itself, that one forms part of a new given. From this point of view it is fundamental that instances such as the TRC are not given the format of a tribunal and that one does not have to submit oneself to its verdict. It is this transcendental turn, according to which speech suffices to constrain to a “we”, which is comforted by the effective creation, a fixing through story-telling, of a shared past.” Ibid at p. 34.

145 See South Africa Truth and Reconciliation Commission (1998) Truth and Reconciliation Commission Final Report, Vol. 1 (Cape Town: Juta & Co.) at pp. 57, 58, 112. See also Tobias, S. (1999) ‘History, Memory and the Ethics of Writing: Antjie Krog’s Country of My Skull’ at pp. 4-5.

146 See Minnow, M. (2000) ‘Hope for Healing: What Can Truth Commissions Do?’ at p. 250.

147 Ibid at p. 252. See also Valji, N. (2003) ‘South Africa: No Justice Without Reparations’, Open Democracy http://www.opendemocracy.net/faith-africa_democracy/article_1326.jsp on 23 April 2006.

148 See Republic of Kenya (2003) Report of the Task Force on the Establishment of a Truth, Justice and Reconciliation Commission (Nairobi: Government Printer). See also Amnesty International (2008) ‘Kenya: Concerns about the Truth, Justice and Reconciliation Commission Bill’ www.amnesty.org/en/library/info/AFR32/009/2008/en12 July 2008.

149 Forgiveness is more a fractional rather than primary element within the notion of reconciliation in the TJRC and perhaps this mirrors the acrimonious nature of the political settlement that brought about the TJRC as well the general frustration over impunity amongst majority of the Kenyan citizenry.

150 Economic rights include the promotion and protection of property and land ownership, the right to fair compensation for taking or expropriation of property, the right to an adequate standard of living, the right to housing and the right to adequate healthcare.

151 Including the antecedents, circumstances, factors and context of such violations; perspectives of the victims; and motives and perspectives of the persons responsible for commission of the violations.

152 Including the antecedents, circumstances, factors and context of such violations; perspectives of the victims; and motives and perspectives of the persons responsible for commission of the violations.

153 Under Section 4(f) and (h) of the Act No. 34 of 1995, the SATRC could make recommendations to the President with regard to the policy which should be followed or measures which should be taken with regard to the granting of reparation to victims or the taking of other measures aimed at rehabilitating and restoring the human and civil dignity of victims and measures which should be taken to grant urgent interim reparation to victims. The SATRC could also make recommendations to the President with regard to the creation of institutions conducive to a stable and fair society and the institutional, administrative and legislative measures which should be taken or introduced in order to prevent the commission of violations of human rights.

154 Under Section 1(xix) of the Act No. 34 of 1995, ‘victims’ are described as:

(a) persons who, individually or together with one or more persons, suffered harm in the form of physical or mental injury, emotional suffering, pecuniary loss or a substantial impairment of human rights as a result of a gross violation of human rights or as a result of an act associated with a political objective for which amnesty has been granted;

(b) persons who, individually or together with one or more persons, suffered harm in the form of physical or mental injury, emotional suffering, pecuniary loss or a substantial impairment of human rights, as a result of such person intervening to assist persons contemplated in paragraph (a) who were in distress or to prevent victimization of such persons; and

155 Section 42(1): Any person who is of the opinion that he has suffered harm as a result of a gross violation of human rights may apply to the Commission for reparation in the prescribed form.

156 Section 41: Where amnesty is recommended to any person in respect of any act, omission or offence, and the Commission is of the opinion that a person is a victim in relation to that act, omission or offence, the Commission may recommend reparation to, and rehabilitation of, that person.

157 Section 42(4): The Commission may make regulations to provide for reparation under this Act.

158 See Kenya National Dialogue and Reconciliation (2008) ‘Agenda Item Three: How to resolve the Political Crisis’, http://www.dialoguekenya.org/docs/14_Feb_08_TsavoAgreement.pdf 18 November 2009.

159 For example, in regard to economic crimes and the breach of economic rights, what is the relationship between the TJRC and the Kenya Anti-Corruption Commission or the Anti-Corruption and Economic Crimes section of the High Court? It appears that there is considerable overlap in mandate, especially investigatory. These relationships ought to be adequately considered and defined.

160 Amnesty International (2008) ‘ Kenya: Concerns about the Truth, Justice and Reconciliation Commission Bill’ www.amnesty.org/en/library/info/AFR32/009/2008/en 12 July 2008at p. 10.

161 See Section 53.

162 Which shall contain a summary of its the findings, recommendations concerning the reforms and other measures, whether legal, political, or administrative as may be needed to achieve the object of the Commission; make recommendations for prosecution; recommend reparations for the victims; recommend specific actions to be taken in furtherance of the Commission’s finding; recommend legal and administrative measures to address specific concerns identified by the Commission.

163 See Amnesty International (2008) ‘Kenya: Concerns about the Truth, Justice and Reconciliation Commission Bill’ www.amnesty.org/en/library/info/AFR32/009/2008/en 12 July 2008at pp. 9-10.

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