Khulumani expresses profound disappointment at government's continuing adherence to the closed list of TRC-identified victims for reparations benefits when the TRC itself appealed to the state to embrace an open and ongoing process to provide reparations for all Apartheid victims of gross human rights violation that meet the TRC criteria.
In a shocking display of callousness and on the eve of a critical local government election where the state's record of delivery to its citizens is under intense scrutiny, the Department of Justice and Constitutional Development has released draft regulations for the provision of urgent educational and health assistance to the limited list of some 17,000 TRC-identified victims of apartheid gross human rights violations.
After a delay of thirteen years, longer than the normal school career of a learner, the state has gazetted complicated regulations for health and educational assistance for only the small fraction of the victims of apartheid gross human rights violations who were identified by the TRC. This action contradicts the appeal by the TRC itself that the "the closed list policy should be reviewed to ensure justice and equity" and that the "the consequence of ignoring this group of people has potentially dangerous implications for South Africa, as communities may become divided if some receive reparation that is not accessible to others who have had similar experiences." (TRC Report Volume 5, Chapter 5, Paragraph 37, Recommendations of the TRC). Khulumani echoes this in its rejection of the draft regulations that have been constructed without the inclusion of victim perspectives or identified victim needs.
International reparations advocates and advisors warn against the approach of "limiting state responsibility to provide reparations only to victims identified in a limited time period." They highlight that the construction of a time period for victim registration is entirely arbitrary and ignores the obligation of the state to reach all victims and to register them so as to provide them with reparations. No arbitrary decision can exonerate government from the duty of providing reparations for those who meet the criteria of having suffered gross human rights violations in the past. All those who suffered the same violations in the same time period need to be included in reparations provisions. Failure to embrace this approach signifies an egregious lack of concern for those who are owed an immense debt of gratitude.
Not only do the regulations avoid the duty of the state to provide reparations to all those who meet the criteria of having suffered gross violations of human rights, they also represent the work of a joint committee whose unnamed members, have avoided including the perspectives of civil society organisations and victims' member groups which have sustained the struggle to construct measures to build a just and inclusive post-apartheid society. By ignoring these perspectives, the state violates not only the spirit of the TRC and the aspirations expressed in the Preamble to the Constitution to "heal the divisions of the past and establish a society based on democratic values, social justice and fundamental human rights", but also its obligations in international law.
The state's shameful post-TRC track record is a sad postscript to an internationally acclaimed process that was seen to be providing "the perfect case to offer truth, justice and reparations" according to ICTJ's Head of Criminal Prosecutions, Michael Reed-Hurtado. The post-apartheid state has in fact tragically failed to deliver truth, justice or reparations to those were victimised in apartheid state-sponsored acts of violence and inhumane treatment. Victims and survivors will never give up the struggle for recognition and for justice for those who carried the greatest cost in securing a transition to democracy in South Africa.
For additional comment, please contact Dr Marjorie Jobson on 082 268 0223 or Ms Nomarussia Bonase on 082 751 9903.