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  • Written by  Lwando Xaso, Sunday Independent
  • Published in In the News
  • Read 1147 times

Financial reparations: a moral debt - third of three articles by attorney Lwando Xaso on the issue of reparations

South African President Nelson Mandela (L) receives a five volumes of Truth and Reconciliation Commission final report from Archbishop Desmond Tutu South African President Nelson Mandela (L) receives a five volumes of Truth and Reconciliation Commission final report from Archbishop Desmond Tutu Image: www.enca.com

In the third and final part of a series on transitional justice, Lwando Xaso looks at reparations and how they can help South Africa heal the wounds of the past.

‘It is for those of us who have the means, to contribute to the efforts to repair the damage wrought by the past. It is for those who have suffered losses of different kinds and magnitudes to be afforded reparation, proceeding from the premise that freedom and dignity are the real prize that our sacrifices were meant to attain.”

Those are the words of former president Nelson Mandela upon receiving the much-anticipated report by the TRC affirming the need for reparations in order to fix what had been broken.

Reparations are the action of making amends for a wrong one has done, by providing payment or other assistance to those who have been wronged.

Reparations is an easy concept to understand, a basic tenet of life that what is broken must be fixed, what is stolen must be returned and what is owed must be paid back. These are unassailable principles.

Many South Africans have a legitimate claim to reparations having suffered and continue to suffer from the devastating effects of apartheid.

A cycle of poverty in black communities is largely attributable to apartheid policies, whether it was the removal of black families from their profitable land, or the exploitation of black labour which worked the mines and land upon which the prosperity of this country is founded or the destruction of the black family structure through various sadistic methods that has had far-reaching economic consequences.

It is reported that in 2011 about nine out of 10 (94.2 percent) poor people in South Africa were black Africans and 54 percent of black Africans were living under the upper-bound poverty line. These levels of poverty are significantly higher than the levels among the other population groups.

The average household expenditure in 2011 for households headed by black Africans was R55 920, which was about six times smaller than that for white-headed households at R314 524.

The US, which has avoided dealing with the legacy of slavery and Jim Crow laws, finds itself in a similar position with 39 percent of African-American children living in poverty compared to only 13 percent of white children.

The typical African-American household has $5 677 (R66 931) in wealth, while white households have $113 149 (R1.334m).

Ta-Nehisi Coates writes that “250 years of slavery, 90 years of Jim Crow, 60 years of separate but equal and 35 years of racist housing policy. Until we reckon with our compounding moral debts, America will never be whole”.

Neither will South Africa with over 300 years of colonisation and apartheid that have not been fully reckoned with.

If you believe that black poverty is self-inflicted or due to a lack of discipline or motivation or inherent to black existence then that revives the apartheid mentality. Black people are not any less capable, intelligent or enterprising than other races. What black people have managed to achieve despite considerable oppression and hardship is proof of that. However, the majority of black people are still caught in the tight grip of poverty which cannot be loosened just by vacuous solutions such as “just work harder” or “pull yourselves up by the bootstraps”. This is not a question of handouts but a question of a moral debt that is still owing.

Following World War II and Germany’s defeat there was no question that Germany had to be punished for all the atrocities it committed. Germany has paid out $47 billion on the basis of the 1965 Federal Restitution Law to persons, especially Jews, who had been persecuted during the Third Reich era on the basis of race, religion, origin or ideology.

In recent years Germany was still paying about $75m to 106 000 pensioners in Israel, the US and other countries.

Recipients include former forced labourers and concentration camp internees, as well as individuals deprived of rights or property under the Nazis.

The reparations programme for Japanese-American who were forcefully relocated and incarcerated by the US during World War II included a personalised letter from the US President to each victim along with a $20 000 cheque to 82 219 victims, far more than African-Americans can ever hope to receive.

No doubt this has contributed to the upliftment of the Japanese American community in the US.

There are a number of examples of financial reparation programmes implemented in the wake of mass atrocities. However there are inconsistencies because not all victims are created equal.

Which begs the questions: how has South Africa fared on this front?

The TRC’s final report stressed that reconciliation was not possible without reparations.

More importantly, the TRC recognised that in the South African context reparations were even more important to counterbalance the amnesty provisions for apartheid perpetrators.

The granting of amnesty denied victims the right to institute civil claims against perpetrators and, therefore, the government had to accept responsibility for reparations.

In the case of Azapo and Others v The President of the Republic of South Africa and Others, the Constitutional Court stated that South Africa’s transition should be understood on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation.

The victims of apartheid have generally remained true to this bargain – they have, by and large, traded in vengeance and retaliation but where are the reparations for these concessions?

The TRC had recommended the payment of between R17 000 and R21 000 per year for six years to each “identified TRC victim” depending on their need. The amount recommended by the TRC was thus a total of between R102 000 and R126 000 per victim.

The government, however, did not implement these recommendations, but instead paid out a “once-off, full and final payment” of R30 000 for each individual.

While the budget recommended by the TRC to provide for reparation and rehabilitation measures amounted to some R3 billion, according to the government it allocated just over R1 billion with R550 million spent on the “once-off” payments, R260 million allocated towards health assistance, R110 million to housing needs, R500 million to community rehabilitation needs and R35 million to reburial costs.

According to the Khulumani Support Group through independent research into the appropriateness of the TRC recommendations, they determined that they were accurately targeted at the most urgent needs of victims.

The government, however, did not adopt the TRC recommendations and developed a minimalist approach to reparations for victims of gross human rights violations and tasked the Department of Justice with monitoring.

Furthering the notion that not all victims are created equal, only those who were found to be victims by the TRC would benefit from this programme. This is highly discriminatory considering that the victims of apartheid far surpass the limited number of roughly 22 000 determined by the TRC.

On November 7, 2014, regulations for educational assistance were gazetted and again this measure will unfortunately only benefit those “contemplated in the definition of ‘victim’ by the TRC”.

What does everyone else get? The constitution, affirmative action, BEE and social grants? These laws and policy reforms “can reasonably be justified in present-day terms alone – there is no need to call it ‘reparations’ or reference racialised historical injustice.

“Regardless of the past, reforming policies which perpetuate racial inequality is incumbent upon governments which avow a commitment to liberty and justice.”

Financial reparations, on a much larger and inclusionary scale, needs to be revisited and studied. We need to look at our country holistically and not just at those that had the privilege of being heard by the TRC.

There have been many proposals by groups such as Khulumani on how the issue of reparations can be addressed, such as Special Pension Reforms equivalent to the minimum wage over five years which would enable a household the kind of security to begin to invest in their own community-determined and directed economic activities.

More importantly, this issue needs to take centre stage in our political discourse. Acknowledgement of this outstanding debt is the first step. This is not the responsibility of the government alone, there are a number of private individuals and firms that are morally obligated to participate and contribute.

A lot of tensions exist today because many people feel short-changed, apartheid perpetrators walk free while money owed remains outstanding.

Next time we rush to pass judgment on people for the less than desirable circumstances they find themselves in, let’s not lose sight of the context and the history which defines our society today.

“It is as though we have run up a credit-card bill and, having pledged to charge no more, remain befuddled that the balance does not disappear. The effects of that balance, interest accruing daily, are all around us.”

* 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.

The Sunday Independent: 

http://www.iol.co.za/sundayindependent/financial-reparations-a-moral-debt-1.1862390#.VXFEFKi8FT9

 

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