THERE's nothing like an election to spur the government into action. Last week, the Sunday Times reported that apartheid victims would be compensated in the form of large cash payouts, after the Department of Justice and Constitutional Development gazetted proposed regulations on reparations payments to apartheid victims and their children.
Predictably, this led some members of the public to suggest that the African National Congress (ANC) was capitalising on the elections — what else would prompt the government to be so generous after so many years? But whatever the government's motives, the attempt to finally make good on its undertaking under the Truth and Reconciliation Commission Act and international law is not to be sniffed at. Or is it?
The decision opens a can of worms. Who will be compensated? How much will be paid? Who will decide?
So far, amounts of R30000 have been paid to 20000 people listed in the final report of the commission as "victims", as well as a total of R50m to about 16000 victims who were found to be in need of "urgent relief". The compensation in question will be paid from the President's Fund, which was established in terms of the legislation establishing the commission. The purpose of the fund was to compensate those people who were designated as victims by the commission.
According to the new regulations, those eligible include "people who suffered physical, mental or emotional injury" during apartheid. Since the President's Fund was established to give effect to the commission's decisions on reparations, it seems clear that, again, the government will limit reparations to the victims who testified before the commission. This limited interpretation of who qualifies as a "victim" has been strongly criticised locally and internationally.
In my view, the neglect in following the commission's recommendations on reparations, and the limited payments, have had a negative effect on the credibility and legitimacy of the commission process. The R30000 payments made in 2004 were described as "once-off" payments. It seems that the proposed new payments will again be paid to the people the commission designated as victims. How does this affect the government's original decision to make once-off payments?
The idea of selectively targeting a small number of victims is highly problematic. Selective justice is always problematic — whether in the context of domestic justice, international criminal justice or in the context of transitional justice. The Khulumani Support Group (representing more than 50000 apartheid victims) has warned that selective reparations payments such as this could lead to the reprivileging of a small group of victims. Academics have warned that incorrectly privileging certain victim groups could lead to fresh resentment, renewed trauma and further litigation.
It is also problematic that, in formulating its latest policy, the government has not consulted broadly with civil society and organisations such as Khulumani. Our constitution requires public participation. It can be argued that the government acted unconstitutionally in drafting the regulations.
Paying reparations for serious human rights violations is all the rage these days. Last Thursday, I spoke at a conference on "reparations before the International Criminal Court" in The Hague. Article 75 of the Rome Statute of the International Criminal Court mandates the court to make reparations to victims. In formulating its principles on reparations, the court is expected to look at the practices in domestic jurisdictions.
The Inter-American system, which is proactive in the reparations field, has gone beyond compensating victims and their families to compensating entire communities in a bid to show cultural sensitivity in its reparations decisions.
Reparations remain a part of the unfinished legacy of the truth commission. But reparation is not just about the past — it is about ensuring what the ANC would call "a better life for all". The public importance of the reparations issue means the ANC cannot act unilaterally. The public should be heard and courts and experts should assist in designing a sophisticated and sensible policy. In communicating about the payments, the government must be clear that the payments do not constitute more "handouts" of the social security kind. Instead, the government must justify payments in the language of international law.
• Mia Swart is an assistant professor at Leiden University in the Netherlands.