Ambiguities Of mourning law, custom, literature and women before South Africa's truth and reconciliation commission

Law Text Culture Volume 4 Issue 2 Article 5 1998 Ambiguities Of mourning law, custom, literature and women before South Africa's truth and reconciliation commission M. Sanders University of New York Follow this and additional works at: http://ro.uow.edu.au/ltc Recommended Citation Sanders, M., Ambiguities Of mourning law, custom, literature and women before South Africa's truth and reconciliation commission, Law Text Culture, 4, 1998, 105-151. Available at:http://ro.uow.edu.au/ltc/vol4/iss2/5 Research Online is the open access institutional repository for the University of Wollongong. For further information contact the UOW Library: Ambiguities Of mourning law, custom, literature and women before South Africa's truth and reconciliation commission Abstract Currently winding down its work of hearing testimony to human rights abuses of the apartheid era, the Truth and Reconciliation Commission is an ambitious undertaking. A counterpart to the Reconstruction and Development Programme, a long-term scheme for the creation of housing, infrastructure and jobs, the Truth Commission is part of a vast effort at nation-building in post-apartheid South Africa. By asking South Africans to remember, the Truth Commission seeks to come to terms, not only with the crimes of the apartheid era, but with a 350-year history of white domination. In the words of Justice Richard Goldstone, former UN Chief Prosecutor for War Crimes Tribunals in Yugoslavia and Rwanda, (One of the most important advantages of the TRC [is] that it w[ill] write the past forever into South Africa's history' (Pretoria News August 18 1997). The Truth Commission aims at what no program of reconstruction and development could achieve by material means alone. In the minds of its proponents, it aims at nothing less than the 'deans[ing], and 'moral and cultural reconstruction' of a society (Chikane 1995: 99, Sachs 1995: 106). It has as its goal the 'healing of a nation' socially and psychically sundered into fragments by apartheid (see Boraine and Levy 1995). This journal article is available in Law Text Culture: http://ro.uow.edu.au/ltc/vol4/iss2/5 Ambiguities Of Mourning Law, Custom, Literature and Women before South Africa's Truth And Reconciliation Commission Mark Sanders No justice -let us not say no law and once again we are not speaking here of laws - seems possible or thinkable without the principle of some responsibility, beyond all living present, within that which disjoins the living present, before the ghosts of those who are not yet born or who are already dead, be they victims of wars, political or other kinds of violence, nationalist, racist, colonialist, sexist, or other kinds of extermInations, victims of the oppressions of capitalist imperialism or any of the forms of totalitarianism -Jacques Derrida Currently winding down its work ofhearing testimony to human rights abuses of the apartheid era, the Truth and Reconciliation Commission is an ambitious undertaking. 1 A counterpart to the Reconstruction and Development Programme, a long-term scheme for the creation of housing, infrastructure and jobs, the Truth Commission is part of a vast effort at nation-building in post-apartheid South Africa. By asking South Africans to remember, the Truth Commission seeks to come to terms, not only with the crimes of the apartheid era, but with a 350-year history of white domination. In the words of Justice Richard Goldstone, former UN Chief Prosecutor for War Crimes Tribunals in Yugoslavia and Rwanda, (One ofthe most important advantages of the TRC [is] that it w[ill] write the past forever into South Africa's history' (Pretoria News August 18 1997). The Sanders Truth Commission aims at what no program of reconstruction and development could achieve by material means alone. In the minds of its proponents, it aims at nothing less than the 'deansHng], and 'moral and cultural reconstruction' of a society (Chikane 1995: 99, Sachs 1995: 106). It has as its goal the 'healing of a nation' socially and psychically sundered into fragments by apartheid (see Boraine and Levy 1995). By what means does the Commission set out to realise its goals? Though its goals are ambitious, its means are seemingly modest. It will build no houses, electrify no townships, and create no jobs. Guided by the goal of national reconciliation, all it has done is solicit the truth from witnesses called upon to provide information which could aid it in its goal of 'establishing as complete a picture as possible of the causes, nature and extent of the gross violations of human rights' of the period 1960.. 1994 (Promotion ofNational Unity and Reconciliation Act 1995).2 The Commission seeks to bring forward, as it distinguishes them, the 'victims' as well as the 'perpetrators'. In terms ofa controversial provision designed to bring to light what court cases would be likely to obscure, 'perpetrators' applying to the Amnesty Committee can exchange a 'full disclosure' of rights violations for amnesty from criminal and civil prosecution. 3 In order to qualify for amnesty, 'the act, omission or offence ... to which the application relates is an act associated with a political objective committed in the course of the conflicts of the pase, and the Committee must assess 'the relationship between the act, omission or offence and the political objective pursued, and in particular the directness and proximity of the relationship and the proportionality of the act, omission or offence' (Promotion of National Unity andReconciliation Act 1995 subsections 3 [1] [b], 20 [1] [b] and 20 [3] [fD. Although the amnesty hearings have 106 Ambiguities ofMourning at times been marred by the delaying tactics of lawyers, a great deal of information about covert security operations has come before the public eye. What has captured the hearts ofobservers, though, is the testimony heard at the human rights violation hearings. As Antjie Krog writes, looking ·hack: (The last victim hearings finished five months ago, and the focus has been lost. No more the voices, like a leaking tap in the back ofyour mind, to remind you what this Commission is all about' (Krog 1998: 236-7). A nationwide publicity drive, supported by church, community and support groups like the Johannesburg-based Khulo.mani - Speak Out! -, has encouraged ordinary people to come forward: to name their torturers, the murderers of their children, and to claim recompense. 4 We are witnessing, as Kendall Thomas writes, 'the elaboration ofa new social ethics ofdiscourse' (Thomas 1997: 188). The process of testifying is an open one, with public hearings broadcast live on radio (the mass medium accessible to the largest number of South Africans), and covered regularly by South African Broadcasting Corporation television, both live and in a weekly wrap-up, Truth Commission Special Report. This openness distinguishes the Truth and Reconciliation Commission from most truth commissions to date. 5 Many 'victims' (...truncated)