It is one month today since the Department of Justice promulgated its regulations to provide financial assistance in support of education for victims of apartheid gross human rights violations. It is three years since the Department of Justice published its draft proposed regulations for this assistance. The gaps identified in public submissions on these draft regulations have not been filled in the promulgated regulations.
Why do these regulations still miss the mark? In making the announcement of the promulgation of the regulations for educational assistance, Mr Mthunzi Mhaga, spokesperson for the Department asserted they “are part of government’s commitment to the implementation of the Truth and Reconciliation Commission (TRC) recommendations … to promote nation-building and reconciliation, and thereby contributing to the process of reconstruction and development of the country.”
The TRC’s Founding Act (the Promotion of National Unity and Reconciliation Act 34 of 1995) committed the TRC to granting “opportunity (to victims) to relate the violations they suffered” so that measures aimed at their reparation, rehabilitation and restoration may be undertaken.” The ANC in 1997 wholeheartedly endorsed this approach when it stated that it “firmly believes that meaningful reparations to the victims of the system of apartheid are necessary, and in particular to the victims of gross violations of human rights. Unless there are meaningful reparations, the process of ensuring justice and reconciliation will be flawed.”
Continuous engagement with the Department of Justice over the years since the closure of the TRC has failed to secure policy to give substance to this stated political commitment of the ANC. Khulumani’s database of 104,000 biographies of struggle veterans who were severely harmed as community activists bears testimony to the gap between the 22,000 identified by the TRC in its severely limited processes and the evidence of the extent of contributions made by “those who struggled for freedom and justice in our land.” The tabling of their contributions begins a process of recognising their contributions for whom reparations is an as yet unfulfilled right.
A close reading of the gazetted regulations on educational assistance reveals that the regulations invoke the inclusive definition of victims from the Promotion of National Unity and Reconciliation Act 34 of 1995, but then qualify this with the addition of the requirement that a eneficiary ‘victim’ must also have been found to be a victim by the TRC.
This arbitrary exclusion of some four-fifths of victims of apartheid gross human rights violations limits the possibilities and potential of achieving a reconciliation based on restoration and restitution. These individuals are treated as if they are making it all up for some perverse reward when the reality is that the damage wrought in their lives cannot begin to be reversed without the provision of effective reparations, starting with access to an inclusive programme of financial assistance for education and training. The denial of the right of testimony, the right to authorize one’s own experience and the right to access reasonable reparations, is a quintessential oppressive power, now being perpetrated by those who inherited the present dispensation through the efforts of struggle veterans.
The continuing arbitrary exclusion of those affected by apartheid gross human rights violations through limiting the application of the regulations only to the individuals who benefited from receiving a TRR number, inflicts an assault on our nation-building project that the Department purports to be committed to furthering. The political achievements of the TRC in our transition are put under jeopardy as are possibilities for bringing a hurtful past to closure for those who paid the highest price for our freedom.
Reparations are a legal responsibility of states. They are an established international human right, enforceable by international law and evidence exists to demonstrate the value and importance of reparations in securing a stable peace in post-conflict societies. Institute for Justice and Reconciliation Director, Dr Fanie du Toit asserts that the development of a comprehensive and well-run reparations programme, even as late as this, could be a powerful antidote to the unravelling of our hard-won peace. It would certainly give substance to the ANC’s assertion that those who contributed to the ‘demise of the iniquitous system of apartheid’ “need to handle with compassion the victims of the conflict in general, whatever the circumstances which spawned their privations”. Amongst the ANC’s recommendations are the call to identify those who qualify for reparation and rehabilitation including special pensions, educational grants, skills training, medical aid, welfare, the issuing of special medals, the erection of memorials, and the possibility of a museum in remembrance of those who suffered these injustices.
Looking back over the past 17 years, to the ANC’s 1997 submission to the TRC, there has been a clear backtracking on the part of the ruling party on these commitments. The latest regulations appear to Khulumani to be a public relations exercise designed more to promote the perception that the Department of Justice is addressing these issues, than an authentic attempt to contribute to restoring the losses suffered by those who contributed to the struggle as political activists, including their loss of educational opportunities. We call for a return to the commitments of the ANC of 1997 to ensure that the neglect and abandonment of ‘real victims’ of apartheid atrocities ends.
For comment, please contact:
Dr Marjorie Jobson, Khulumani National Director, 082 268 0223
Ms Judy Seidman, ASIKAQEDI Campaign Coordinator, 072 620 6944