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  • Written by  Lwando Xaso, Sunday Independent
  • Published in In the News
  • Read 1267 times

Truth in jeopardy as past recedes - second of three articles by attorney Lwando Xaso on the issue of reparations

In the second of a three-part series on transitional justice, Lwando Xaso looks at how dealing with apartheid’s outstanding debt will help SA heal.

Facts have been a casualty since the end of apartheid, but the right to them has not ended, Lwando Xaso writes in the second of a three-part series on transitional justice.

Every night my grandmother would insist that we cover the windows with thick blankets, otherwise she would be unable to sleep. This was a nightly ritual born out of her fear of being spied on by apartheid police who routinely terrorised the neighbourhood and were liable to raid your house at any time.

Although it was a number of years after our transition into democracy, she insisted on the windows being covered.

When I would call from work to check on her, she would monitor the length of the call and warn me to get off the phone and back to work, otherwise the white people would fire me.

My grandmother had worked as a maid and her employment was often at the discretion of “white folks”. I had to remind her that no one was going to fire me for calling home and that my employment was not dictated by the whims of white folks, but by constitutionally entrenched labour rights.

No matter how many times I told my grandmother about my constitutional rights, her fear remained. She feared that history would repeat itself. My grandmother never quite understood my post-apartheid life.

She could not grasp the fact that I went to white schools and had white friends and mentors.

She feared that my defences were down and I would be sucker-punched eventually.

Unfortunately my grandmother’s fears are not completely unfounded.

Not too long ago I wrote about my experience at an ice cream shop where white customers were served first because of the colour of their skin. A definite sucker punch. However, some experiences are not always this obvious.

Untransformed minds reveal themselves in more covert ways such as dinner conversations with so-called friends who defend the memory of a colonial oppressor or reveal nostalgia for a distorted past with no load shedding, corruption or crime.

These conversations reveal selective amnesia and a deviation from the truth.

The further we move away from our past, the blurrier it gets. More disturbing is the deliberate fudging of the truth.

The truth is in jeopardy when claims are made that black people were the architects of apartheid. It is in jeopardy when poor black people are forced to carry green cards to monitor their movements in and out of suburbs under the guise of crime prevention.

The truth is in jeopardy when children in schools are separated according to their race under the pretence of accommodating their cultural needs.

These incidents would not happen if those who sanctioned them accepted that apartheid was a crime against humanity, never to recur.

The truth is a critical reparation for the damage caused by apartheid – it heals, it restores dignity and validates the experiences of the oppressed.

When we romanticise, trivialise or ignore our history, the reparative function of the truth is denied in violation of international law.

The right to truth safeguards against public denial and impunity.

The right to truth is an internationally recognised human right. The UN Commission on Human Rights adopted Resolution 2005/66, which “recognises the importance of respecting and ensuring the right to the truth so as to contribute to ending impunity and to promote and protect human rights”.

The right to the truth is also explicitly provided for in the International Convention for the Protection of All Persons from Enforced Disappearance.

Although there is an established right to the truth, our country had to bargain to obtain it. Black people relinquished their most fundamental rights to justice through the court system, to know the truth.

Knowing that reconciliation would be impossible without the truth, South Africa established its TRC under the Promotion of National Unity and Reconciliation Act.

The TRC was entrusted with the duty to establish and to make known “the fate or whereabouts of victims” and of “restoring the human and civil dignity of such victims” by affording them an opportunity to relate their own accounts of the violations and by recommending “reparation measures”. The act also provided for amnesty to be granted in exchange for truth.

When the constitutionality of this bargain was challenged, the Constitutional Court held that the secrecy and authoritarianism of apartheid had concealed the truth in little crevices of obscurity in our history.

All that often in effect remains is the truth of wounded memories of loved ones sharing instinctive suspicions unable to be translated into corroborative evidence that could survive the rigours of a court of law.

The act seeks to address this enormous problem by encouraging these survivors and the dependants of the tortured and the wounded, the maimed and the dead to unburden their grief publicly, to receive the collective recognition of a new nation that they were wronged and, crucially, to help them to discover what in truth happened to their loved ones and who was responsible.

That truth, which the victims seek, in the circumstances, is much more likely to be forthcoming if those responsible for such monstrous misdeeds are encouraged to disclose the whole truth with the incentive that they will not receive the punishment which they undoubtedly deserve.

I was a child when the hearings were broadcast, but the visual that has stayed with me is that of adults weeping.

Up until those hearings I do not think I had ever seen black adults, especially black men, cry so viscerally and so cathartically.

The stoicism that I had grown accustomed to had broken down. The hearings forced us as a nation to exorcise our demons and because of that the TRC can never be deemed a failure.

However the process had its limitations. The limitations include the TRC’s mandate period of 1960 to 1993, which narrowed the TRC’s scope, and testimonies were heard from only 21 000 victims, which is a tiny fraction of a much larger number.

In total, 46 696 violations involving 28 750 victims were reported to the TRC.

Of these violations, 33 713 were gross violations of human rights. More than 2 900 people reported 5 002 instances of torture. More than 2 000 instances of deliberate methods of torture, such as suffocation, were reported.

Destruction of material goods was the most common type of severe ill-treatment. There were more than 1 800 instances of incarceration in conditions that amounted to severe ill-treatment.

That former and current rulers were anxious about aspects of the TRC’s final report is indicative that the TRC fulfilled its mandate in a fair manner.

It would have been impossible for the TRC to provide a full picture of all atrocities committed under apartheid – it was not meant to. It was a small component of a much bigger picture.

Overall, in my opinion, South Africa has done a commendable job in determining the truth about apartheid.

We had a TRC, we have built memorials to honour our past, renamed our streets, and enacted legislation that facilitates access to information, and statues have fallen.

But stories continue to emerge that make me question just how embedded we are in the truth.

American writer Ta-Nehisi Coates warns that in the US “there is a strange and powerful belief that if you stab a black person 10 times, the bleeding stops and the healing begins the moment the assailant drops the knife.

We believe white dominance to be a fact of the inert past, a delinquent debt that can be made to disappear if only we don’t look.”

In truth the effects of these human rights violations under apartheid, reported and unreported, continue to shape our lives today.

The bleeding has not stopped, not when there are those who think it’s a good idea for black people to carry green cards to monitor their movements, not when former president FW de Klerk defends the concept of apartheid.

There is a continuing transgenerational transmission of trauma and humiliation from one generation to the next when the truth is unacknowledged.

Even so-called freedom babies are affected – just ask the children at the Curro Foundation School. The bleeding is often denied – no, the separation was not racism, it was an exercise in cultural sensitivity.

It is the denial of the truth about slavery that sees history repeat itself in the US – only now, instead of lynching, black people are fair game, to be hunted by white police officers.

The truth must live on beyond the conclusion of the TRC’s work. Before it is thought to be a good idea to defend oppressors, to separate children according to race, and to issue black workers with green cards, accept this well-established truth: apartheid was a crime against humanity.

It failed because it was morally repugnant.

There can be no hesitation or dissonance on this score.

Until that truth is universally accepted, I too will sleep with one eye open.

*Xaso is a lawyer with an LLM in constitutional and administrative law from UCT and an LLM in international human rights law from the University of Notre Dame.

** The views expressed here are not necessarily those of Independent Media.

Sunday Independent

Sunday Independent: URL: http://www.iol.co.za/sundayindependent/truth-in-jeopardy-as-past-recedes-1.1859439#.VWQWrqi8FT8

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