The negotiations for a new political and constitutional dispensation in South Africa brought a thirty year low-level civil war to an end (Suttner, 2008; Walker, 1982; Wells, 1993). It had become clear during the mid-1980s that the country might descend into a full-scale civil war unless a peaceful transition to democracy was worked out. The combined pressure of internal opposition movements, ungovernable black townships, underground guerilla activities, international solidarity and boycotts, had convinced the ruling National Party apartheid government that it would have to resort to negotiations to find a negotiated solution. The system of racial domination known as ‘apartheid’ had engendered a guerilla war since the 1960s and the country had become a militarised fortress. By the mid-1980s the country itself was aflame with protest and civil disobedience that had become exceedingly violent. Despite a crackdown by security forces and the detention of large numbers of activists, including children, it became increasingly difficult for the apartheid rulers to govern. Indeed certain areas were ungovernable.
Secret talks between the liberation movements and the government were from the mid-1980s on brokered by organisations promoting democracy and by eminent persons inside and outside the country as well as by the western powers. The first inkling of substantive change came with the release of political prisoners and the legalisation of banned movements in 1990. These moves opened the way to constitutional negotiations. During negotiations, both internal and external liberation movements and political organisations demanded that for a new era to begin, some accounting for the human suffering and human rights abuses of the apartheid years ought to take place if peace was to be established in such a bitterly divided society (Boraine, 2000). The discussions about transitional justice and the subsequent Truth and Reconciliation Act that the South African Truth and Reconciliation Commission (TRC) set up, attempted to steer a path between punishment of perpetrators for human rights abuses, restorative justice, and reconciliation. The objective was to create the conditions for reconciliation with accountability and a context for nation-building (Sooka, 2009, 29-34; Simpson, 2004,1-28).
South African gender activists and a broadly representative gender lobby criticised the process of ‘truth and reconciliation’ that emerged as androcentric and gender-blind (Olckers, 1995, 1996; Goldblatt and Meintjes, 1995). They also criticised the limited purview of the TRCs mandate in its focus on individual culpability rather than on apartheid as a system that implicated all population groups in ways over which they had no control. Their criticisms were well received by the TRC, and led to a process of consultation with the whole gender sector – NGOs, the Women’s National Coalition as well as women’s sections of political parties as well as gay and lesbian groups - that led to a shift in the way the TRC structured its depositions and public hearings. It also led to specific efforts to integrate women’s experiences of human rights abuse.
But while the feminist critics were successful in pushing a woman’s agenda their more specific theoretical and methodological criticisms of the way in which gender was interpreted and the modalities of the TRC were less successful. Their suggestions for a gender approach, a systematic gender analysis of apartheid and that gender needed to be more than taking women’s experience into account were taken up but misunderstood. The argument of the gender lobby was that the TRC should explore the relational aspects of everybody’s experience of the system and of specific human rights abuses, and thus include the specificity of both women’s and men’s gendered experience (see Goldblatt and Meintjes, 1995). The consequence of a lack of understanding of gender as a theoretical and practical approach however, meant the neglect and silence about a vital structural aspect of apartheid and post apartheid experience in the final report – gender as a constitutive variable along with race and class was entirely neglected. This failure affected the outcome and the nature of the justice and reconciliation that was possible in the transition and its aftermath. Dealing with the past and the history, that the TRC wrote, was thus partial and blinkered.
Limitations of the Feminist Critique.
On hindsight, the critique launched by the feminists was itself limited and had consequences for the way in which their intervention shaped the TRCs practice. In the autocritique which follows, my focus is on the epistemological and ontological consequences of the thinking of the Gender Monitoring Lobby that was established and located in the Gender Research Project in the Centre for Applied Legal Studies at Wits University can only be schematic. (2)
First, the focus on gender as a stand alone category that focused on the relational categories of sex, sexuality, sexual orientation or gender roles, tended to foreclose its relationhip with other categories – class, ethnicity, belief and generation as both age and as history. At the time, gender was conceived in somewhat narrow relational terms – rather than in a broader framework of the multiplicity of gender relations that embrace the full gamut of sexual identities possible in society. In the intervening time, it is clear that only in understandibg the intersectionality of a diversity of constituting categories can we fully understand how and why people, women and men, act in the way they do. This may sound like a truism, but in concrete situations the theory and concepts that we use in post-conflict situations have pertinent effects. This kind of nuance is extremely difficult to bring to peace tables, and in Africa where homophobia predominates, almost impossible.
The second point is that although we used the category gender to characterise gender power and gender relations both in the submission made to the TRC and in our verbal presentations organised by the TRC in workshops and in the special hearings, the TRC used it as a blunt instrument. Gender for them fundamentally meant women. Thus in the final report of the TRC, instead of integrating gender as an analytical category, it became a descriptive category referring to women’s experience. This was reflected in the fifth volume report as a single chapter on women. Thus the nuance of how gender power functions to authorise men and to subjectify women as secondary subjects, under the authority of men, was erased. Moreover, this approach prevented an understanding of not only the importance of what happens to men in the aftermath but also failed to address the fact that for gender justice to prevail, that gender transformation of society needs to follow the transition from peace. This issue was the subject of two interconnected international conferences in Dakar and Johannesburg, organised with the support of Heinrich Boell and the Ford Foundation in 1998 and 1999 and was published in an edited volume and special issue of the South African feminist journal Agenda, both entitled ‘The Aftermath: women in post-conflict reconstruction’. The insights that came out of the debates at that conference remain important: gender justice requires gender transformation.
The international framework for gender justice in post-war contexts found itself significantly strengthened by the UN Security Council Resolution 1325. This resolution on ‘women, peace and security’, ‘enjoins governments, the UN and parties in conflict to adopt a gender sensitive approach to peace processes and to develop special mechanisms to protect the human rights of women and girls in conflict situations. Significantly, Resolution 1325 emerges from the activism of women’s organisations and NGOs in the area of women, peace and security, rather than from member states directly (Hassim and Meintjes, 2005, 7).
There can be no doubt that raising awareness and insisting upon a focus on the nature of gender relations and the consequences that they had on the way that the system operated to shape women’s and men’s experiences is and was important. Gender roles, sexual identity, and sexuality determined what women and men were able to do in their lives. In South Africa, the history of the controls exerted over different population groups defined by race – African, Coloured and Indian people - and the entitlements enjoyed by whites, were all gendered as much as they were based on race, class, ethnicity etc. Apartheid as a system used gender as a means of differentiation. Gender, sex and sexual identity became a means of control over both women and men. Thus anti-apartheid activists were subject to specific kinds of sexual abuse and sexual torture, including rape, that were devised to perpetuate and were a consequence of the fact that the apartheid system itself was a gendered political, social and economic order. It was apartheid that determined how that abuse and torture was deployed and what its consequences were. So understanding the gender system that apartheid created, and the effect of the system on women (and men) in the aftermath, is vital if a more holistic picture of apartheid and the post-apartheid transition and the blockages to transformation is to be understood. While much has been written about women – and some scholars have written extraordinarily sophisticated histories (Hassim, 2006, Walker, 1984; Wells, 1992) a more nuanced general history of apartheid remains to be written in its fullness.
The TRC – Objectives, Terms of Reference, and Criticism.
The TRC became a national and indeed international show-case of the humiliation, suffering and deprivations endured by individuals and families involved in opposing apartheid. Three committees were established under the TRC Act – human rights violations, amnesty and reparations committees. Each operated differently. The first committee dealt with and heard thousands of individual stories of gross human rights violations in a victim-focused approach. The second was a semi judicial process set up to adjudicate amnesty in exchange for truth telling by those people who had perpetrated gross human rights violations of a political nature. The third was to assess the damages and nature of reparations that needed to be meted out to individuals, families and communities. All three processes functioned concurrently.
While the TRC responded positively to the feminist critique and to the submission they put forward, in particular the need for in camera hearings and separate women’s hearings, in fact very few people came forward to disclose sexual violation. This might reflect the deeply conservative nature of South African society, and the idea that rape and sexual violation dishonoured men, who were conceived as the protectors and providers of families. The social stigma implied in sexual violation made women reluctant to speak about any such experience in public hearings. Indeed, analysis of women’s depositions showed that the majority of women who gave testimony spoke little about themselves, focusing rather on the abuse and violence against their husbands, children or other family members. The taboo on speaking publicly about their own experience of abuse is testimony to and a reflection of men’s social power and control. Violation of women was translated as men’s inability to protect their families and communities so to speak about it would be to humiliate and undermine men. One could argue that to violate women was a double blow, both to women’s integrity and sense of selfhood and was an attack on the men in order to undermine their identity and authority as men, as heads of families and as protectors of their communities.
The objectives of the TRC were to come to terms with the human rights abuses, crimes against humanity and war crimes that variously characterised the brutal past in South Africa. The terms of the TRC were to hear the confessions of perpetrators and the testimony of victims of human rights abuses in order to provide for the investigation and the establishment of as complete a picture as possible of the ‘nature, causes, and extent’ of the abuse during apartheid in South Africa. The accumulation of individual accounts of human rights abuse – whether by perpetrators or victims – was intended to provide both a history and a kind of confessional process that, it was hoped, would lead to forgiveness, would settle the past and enable both sides to live and work side by side. The intention was to create a new terrain in which white and black South Africans might find forgiveness, find a way of living together differently and see one another as equals and as part of a single nation. South Africa was feeling its way out of apartheid in the context of high levels of inter and intra community violence. Conservatives on all sides were fearful of the future. But could the TRC provide the basis on which all of these issues could be resolved? Its approach was based upon the idea that a human rights culture and new nation-in-the-making would emerge out of the process. The TRC’s amnesty committee dealt with perpetrators – but it did not have powers to punish. It could only give or deny amnesty. After that, the conventional courts would have to take over. What kind of possibilities lay in the TRC process when the setting itself was divisive, in flames, and deeply mistrustful.
It has been argued that he role of TRCs is a performative one, a process that constitutes an economy or exchange that leads to recognising injustice, which then may lead to restoring dignity and healing victims of gross human rights abuses. While these are not inevitable outcomes, they initiate processes which could lay the necessary conditions for a viable social life in the future. Context, time and place are critical and different – so one model cannot be used for another context. Theory both activates and grows out of the context, the time and the place. So when the South African TRC became a ‘Model TRC’ appropriated and built upon by others – East Timor and Sierra Leone for instance - it became a kind of technical fix. The danger inherent in this development was that this would decontextualise the specificity of the wars and civil wars that the TRC was set up to confront. In a very real sense, there has to be a strong inter-relationship between concept, theory and context if a new society is to be born. But do TRCs do this, and should they?A general criticism of the way South Africa’s TRC was framed, lay in its emphasis on human rights and its role in creating a new democratic society. This approach has limitations in terms of providing an adequate historical understanding of the system of apartheid. The particular form and timing of different strategies In the struggle against apartheid and the state’s response can only be understood in terms of the unfolding of events. The turn to armed struggle was never inevitable, it was a response to the intransigeance of the National Party’s exclusionary racist policies. Thus dealing with the history of apartheid and its effects could never be simply dealt with by a focus on individual gross human rights violations. This critique is not saying that the individual suffering was not an important aspect of aparthied and should not be atoned for, but rather to emphasise that historical explanation and understanding is not derived from an accumulation of individual, atomised accounts of human rights abuses. Contextual and historical research is needed to provide a fuller understanding of the history of apartheid as a system that oppressed the majority of the people. The systemic causes of the conflict in the first place. Apartheid was a system of control and a human rights regime alone would not create a platform for a new national beginning. In some respects the approach of the TRC was too individualistic and presupposed that a liberal democratic framework was the answer for the country. This is not to deny the importance of protecting human rights nor that liberal democracy is not a good thing. But other democratic models came out of the struggle too, including a more radical form of participatory democracy that unfortunately was hoist on the petard of compromise during the negotiations and later, the TRC itself. The kind of history that the TRC produced could not reach the real political needs of the country at the time.
A second important point, linked to this discussion, is that of how the terms of reference in TRCs are set up and how these are defined (Goldblatt and Meintjes, 1996). Of particular concern, is the specific way in which gender is conceptualised and deployed. Gender is a complex concept that should capture the social norms and relationships that shape and determine the roles of men and women in specific societies. Every social formation has its own history of how gender relations are configured. Thus the way gender is used in conceptualising the framework in particular societies in transition should be relevant to their history. In South Africa’s transition, gender was used in a most simplistic manner as a woman-centred concept, and thus it could not be deployed to unearth the complexity of both men’s and women’s experiences under apartheid, nor address what a new transformed future might look like (Mannicom, 2005). Thus the way gender is used determines what is and is not brought to the surface during the process of truth telling. In the South African case, the focus on women meant that the way men and masculinity were conceived and the experience this engendered for men, including boys, was never explored. Men’s needs and interests were completely ignored, except in the formal and general issues raised about abuse in the battle field or in prisons in situations where habaeas corpus or the Geneva Conventions were flouted.
The relational aspect of gender could not be dealt with. This refers to how femininity and gender roles are defined and how these shape the social and civil status of women. If men are seen to be protectors and heads of families, then women are most often defined as mothers and dependants. In this view of women’s gendered position, they are secondary citizens. Indeed, in South Africa, women were defined in customary law as minors, on a par with children. Thus women living under customary law could not inherit landed property – only men could. This was compounded by apartheid legislation which followed customary law, and deprived women of the right to be heads of households. Thus legislation under apartheid deprived women of the right to housing in their own right – so widows and divorcees were thrown out of their homes, and single mothers could not rent a home for themselves. This discrimination was a systemic aspect of custom, tradition and apartheid law. Any post-apartheid order that based itself on democratic principles had to confront these systemic inequalities. Yet the TRC had nothing to say about these discriminatory practices that in a new order could be transformed – it was assumed that human rights and democracy would attend to these inequities. But what feminists know, is that formal rights often mask customary discriminatory practices that deny women substantive equality. Indeed, in South Africa it took a big fight to ensure that black women were not deprived of full citizenship. The so-called progressive chiefs – members of the ANC – pushed hard for customary law to trump the Constitution. And without an outcry from the women’s movement, the ANC would have complied and deprived black women of equal rights (Hassim, 2006).
What we do acquire from the TRC is the poignant testimony of survivors of terrible human rights abuse and the acknowledgement by perpetrators of what they did. In some cases the remorse and apologies of perpetrators might have been an acceptable outcome in itself and one that might even have been accepted by survivors. However, in other cases there might have been a more complex process of painful recollection that might not have led either to closure or to forgiveness. Individual psychological and spiritual battles to overcome the experience of systemic abuse are hard to measure. The process in general might have enabled those who witnessed and participated in the ‘truth-telling’ to move closer together and even forgive but the reason these terrible events occurred and how the perpetrators could have perpetrated such terrible acts against other human beings, and the need for them to be held accountable, requires a different set of processes. TRCs cannot fulfil all these roles. The Sierra Leone process recognised this dilemma and introduced a Special Court in parallel.
The feminist and radical democratic critique of TRCs does not mean that we should necessarily question their purpose, however, for there is much evidence that shows that they do contribute to a sense of restorative justice. Nevertheless, the experience of South Africa’s TRC suggests that we have to go beyond truth-telling, to address the historical and systemic wrongs in society from an intersectional perspective, otherwise we will do nothing more than provide a littany of suffering without any possibilities for changing the future.
Boraine, Alex (2000) A Country Unmasked: Inside South Africa’s Truth and Reconciliation Commission. Oxford: Oxford University Press.
Goldblatt, Beth and Meintjes, Sheila (1998) ‘South African Women Demand the Truth’ (1996 Submission to the TRC) in Meredeth Turshen and Clothinlde Twagiramariya (eds) What Women do in Wartime: Gender and conflict in Africa. London: Zed Press.
Hassim, Shireen (2006) Women’s Organization and Democracy in South Africa: Contesting Authority. Madison: University of Wisconsin Press.
Hassim, Shireen and Meintjes, Sheila‘(2005) ‘Overview Paper, Expert Group Meeting on Democratic Governance in Africa: Strategies for greater participation of women’, Arusha (Tanzania) 6-8 December. New York: United Nations Office of the Special Advisor on Africa.
Manicom, Linzi (2005) ‘Constituting “women as citizens”: Ambiguities in the making of gendered political subjects in Post-apartheid South Africa’ in Amanda Gouws (ed) (Un)thinking Citizenship: Feminist Debates in Contemporary South Africa. Aldershot: Ashgate Publishing.
Simpson, Graeme (2004) ‘A Snake gives Birth to a Snake’: Politics and crime in the transition to democracy in South Africa’. In Bill Dixon and Elrena van der Spuy (eds) (2004) Justice Gained: Crime and control in South Africa’s Transition. Cape Town, University of Cape Town Press. 1-28.
Sooka, Yasmin (2009) ‘The Politics of Transitional Justice’ in Chandra Lekha Sriram and Suren Pillay (eds) (2009) Peace versus Justice? The dilemma of transitional justice in Africa. Pietermaritzburg: University of KwaZuluNatal Press. 21-43.
Suttner, Raymond (2008) The ANC Underground in south Africa. Johannesburg, Jacana Press.
Walker, Cherryl (1982) Women and Resistance in South Africa. London: Onyx Press.
Wells, Julie (1993) We Now Demand! The History of Women's Resistance to Pass Laws in South Africa. Johannesburg: Witwatersrand University Press.
(1) This paper is a much revised version of previous papers presented at two earlier conferences: Gender and Post-Conflict hosted by the Centre for Conflict Resolution at the University of Cape Town 2008 and at the World Social Sciences Forum in Bergen in 2009.
(2) This group comprised Polly Dewhirst, Beth Goldblatt, Brandon Hamber, Sheila Meintjes and Tina Sideris. It grew out of a mandate of a wider gender lobby that attended the first consultative workshop organized by CALS with the TRC in early 1995.
Sheila Meintjes is Head of Department of Political Studies, University Witwatersrand.
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