Experiments with Truth and Justice in South Africa: Stockenström, Gandhi and the TRC
2005; Taylor & Francis; Volume: 31; Issue: 2 Linguagem: Inglês
10.1080/03057070500109664
ISSN1465-3893
Autores Tópico(s)Indian History and Philosophy
ResumoAbstract This article sets out to trace the intellectual and political antecedents of the Truth and Reconciliation Commission (TRC) in the longer perspective of South African history. It does so by taking a closer look at some of the longstanding if intermittent series of South African projects invoking notions of truth and justice, most recently exemplified by the TRC in the context of the new democratic and post-apartheid South Africa of the 1990s. It traces the history from Stockenström's stand for truth and justice on the frontier in the 1830s, through Gandhi's mobilisation of ‘truth-force’ as a resource for popular protest at the beginning of the twentieth century, to truth and justice in the theory and practice of the TRC. It argues that the TRC process was characterised by a major shift from a central concern with truth as acknowledgement and justice as recognition during the initial victims' hearings to the quasi-judicial aims and procedures of the amnesty hearings and the perpetrator findings of the TRC Report. It concludes that no direct line can be traced from Stockenström and Gandhi's truth experiments to the TRC process as a founding action of the ‘new South Africa’. None of these experiments is deemed anything like an unqualified ‘success’, or even to have produced clear and unambiguous outcomes. In trying to speak of ‘truth’ and ‘justice’ in South African conditions, Stockenström, Gandhi, and the TRC successively became ensnared in a range of confusions, ambivalences and contradictions. Notes 1 F.W. Reitz and J. Smuts, A Century of Wrong (London, Review of Reviews, 1900). 2 See A. du Toit, Truth and Justice in South Africa (inaugural lecture, University of Cape Town, 1988). 3 A. Sachs, Justice in South Africa (Berkeley, University of California Press, 1973). 4 M.K. Gandhi, An Autobiography Or The Story of My Experiments With Truth (Ahmedabad, Navijan Trust, 1927). 5 See B.K. Parekh, Colonialism, Tradition and Reform: An Analysis of Gandhi's Political Discourse (Newbury Park, California, Sage, 1989), pp. 89ff. 6 L. Kuper, Passive Resistance in South Africa (New Haven, Yale University Press, 1957). 7 A. Lester, Imperial Networks: Creating Identities in Nineteenth-Century South Africa and Britain (London, Routledge, 2001), pp. 23ff.; A.L. Stoler and F. Cooper, ‘Between Metropole and Colony: Rethinking a Research Agenda’, in F. Cooper and A.L. Stoler (eds), Tensions of Empire: Colonial Culture in a Bourgeois World (Berkeley, University of California Press, 1997), pp. 2ff. 8 Lester, Imperial Networks, pp. 23ff.; J.R. Oldfield, Popular Politics and British Anti-Slavery: The Mobilisation of Public Opinion Against the Slave Trade, 1787–1807 (Manchester, Manchester University Press, 1995); E.M. Howse, Saints in Politics: The ‘Clapham Sect’ and the Growth of Freedom (London, Allen and Unwin, 1953); D. Turley, The Culture of English Antislavery, 1780–1860 (London, Routledge, 1991). 9 S. Trapido, ‘“The Friends of the Natives”: Merchants, Peasants and the Political and Ideological of Liberalism in the Cape’, in S. Marks and A. Atmore (eds), Economy and Society in Pre-industrial South Africa (London, Longman, 1980), pp. 247–74; A. Bank, ‘Liberals and Their Enemies: Racial Ideology at the Cape of Good Hope, 1820–1830’ (unpublished PhD thesis, University of Cambridge, 1995); Lester, Imperial Networks, pp. 26ff; S. Trapido, ‘From Paternalism to Liberalism: The Cape Colony, 1800–1834’, International History Review, 12 (1990), pp. 76–104. 10 A. du Toit and H. Giliomee, Chapter 3, ‘Law, Order and Equality’, Afrikaner Political Thought, 1780–1850: Documents and Analysis (Berkeley and Cape Town, University of California Press and David Philip, 1983), pp. 78–126. 11 Letter from P.J. Swanepoel, Kouka, to Mr Mijntjes, resident magistrate of Beaufort West, 19 November 1838, reprinted in Afrikaner Political Thought, p. 111. 12 The Autobiography of Sir Andries Stockenström, Volume II, ‘Correspondence During his European Sojourn, 1833–1835’, edited by C.W. Hutton (Cape Town, J.C. Juta, 1887), pp. 8ff.; reprinted in Afrikaner Political Thought, pp. 112–13. 13 A. Stockenström, ‘Reply to Spring Rice's queries, 5 November 1834’, Minutes of Evidence before the Select Committee on Aborigines (London, House of Commons, Parliamentary Papers, 1835), p. 123; reprinted in Afrikaner Political Thought, pp. 168–9. 14 Lester, Imperial Networks, pp. 23ff.; J.S. Galbraith, Reluctant Empire: British Policy on the South African Frontier 1834–1854 (Berkeley, University of California Press, 1963), pp. 74–5. 15 Cited in N. Mostert, Frontiers: The Epic of South Africa's Creation and the Tragedy of the Xhosa People (London, Jonathan Cape, 1992), p. 739. 16 British Parliamentary Papers, House of Commons Papers of 1837 (hereafter referred to as BPP) 425, Report from the Select Committee on Aborigines, 26 June 1837 (Proceedings of the Committee). 17 Hansard's Parliamentary Debates, Volume XXIX, Third edn. series (speech by Sir George Grey, 14 July 1835), p. 553, cited by P. Kapp, ‘Grondbesit en Geweld in Suid-Afrika: Die Rol van ’n Parlementêre Komitee, 1835–1837’, Suid-Afrikaanse Historiese Vereniging, Pretoria, 6–8 Jule 1997, p. 6. 18 Dr J. Philip, Researches in South Africa, 2 volumes (London, Duncan, 1828). 19 See Mostert, Frontiers, p. 757; Galbraith, Reluctant Empire, p. 132. 20 British Parliamentary Papers, House of Commons Papers of 1836 (hereafter referred to as BPP) 538, Hearings 14/8/1835, p. 43. 21 BPP 538, Hearings 14/8/1835, p. 47: ‘Question: Do you know all these facts of the case of your own knowledge – Yes, decidedly.’ 22 BPP 538, Hearings 28/8/1835, p. 149. 23 BPP 538, Hearings 21/8/1835, p. 95 (italics added). 24 See BPP 538, Hearings 19/8/1835, pp. 86, 91. 25 T. W. Lacquer, ‘Bodies, Details and the Humanitarian Narrative’, in L. Hunt (ed.), The New Cultural History (Berkeley, University of California Press, 1989), p. 180; Lester, Imperial Networks, p. 30. 26 Stockenström had a complex and ambivalent relationship with Philip. To begin with Philip had laid serious charges against Stockenström's alleged abuses of the aborigines to the Commissioners of Enquiry (Autobiography, Volume 1, p. 210). During the 1820s he had some formative encounters with Philip (Autobiography, Volume 1, pp. 243ff.) and they later effectively joined forces in connection with the Aborigines Committee (Lester, Imperial Networks, p. 35). However, during his evidence in the libel case in 1838, Stockenström was at pains to dissociate himself from Philip, ‘a Gentleman with whom I have had the misfortune of entertaining the most acrimonious differences, between whom and myself up to this moment there is nothing more than the most common acquaintance; but to the rancorous unjust persecution of whom, I shall ever scorn to lend myself’ (Literal transcription of the Defence of Sir Andries Stockenström, June 6th 1838, manuscript in the African Studies Library, University of Cape Town). 27 BPP 538, Hearings 21/8/1835, p. 95. 28 J.S. Mill, On Liberty (London, John W. Parker, 1859); D. Luban, Lawyers and Justice: An Ethical Study (Princeton, Princeton University Press, 1988). 29 BPP 538, Hearings 21/8/1835, p. 97. 30 See Stockenström, Memoir drawn up as Commissioner-General, 31 December 1833 submitted as documentation at the Hearings of 21/8/1835, BPP 538, pp. 100–101; BPP 538, Hearings 28/8/1835, p. 148. 31 See Stockenström, Memoir drawn up as Commissioner-General, 31 December 1833 submitted as documentation at the Hearings of 21/8/1835, BPP 538, pp. 100–101; BPP 538, Hearings 28/8/1835, p. 100. Stockenström's impartial and retributivist conception of justice accounted for his most controversial action in the eyes of humanitarians such as Dr Philip and Saxe Bannister, his expulsion of Maqoma from the Kar River Valley in 1829 (see Lester, Imperial Networks, pp. 35–6). 32 BPP 538, Hearings 21/8/1835, p. 97. 33 See Stockenström, Memoir drawn up as Commissioner-General, 31 December 1833, submitted as documentation at the Hearings of 21/8/1835, p. 100: ‘Nothing can be more pernicious or more destructive to peace and civilisation than the system of taking the cattle of the natives as a compensation for what is stolen or said to be stolen from the colonists, without due inquiry and the most incontestable proofs, and shooting those natives upon suspicion, or even without suspicion, merely because stolen cattle are traced or said (by some interested party) to be traced to their kraals'; see BPP 538, 19/8/1835, pp. 83ff. 34 BPP 538, 19/8/1835, p. 85ff. 35 BPP 538, Hearings 19/8/1835, p. 91. 36 BPP 538, Hearings 21/8/1835, p. 98. 37 Stockenström, Memoir drawn up as Commissioner-General, 31 December 1833, submitted as documentation at the Hearings of 21/8/1835, BPP 538, p. 100. 38 See G.E. Cory, The Rise of South Africa, Volume 3 (London, Longmans Green, 1919), pp. 286ff.; Galbraith, Reluctant Empire, pp. 138ff.; The Autobiography of Sir Andries Stockenström, Volume II, Chapter XXII, pp. 65ff. 39 Stockenström, Literal Transcription of the Defence, p. 4. 40 From his testimony in the libel case it is clear that Stockenström saw the issues without irony in stark dichotomous terms: ‘All the brutal insolence and vulgar scurrility with which I have been assailed, all the falsehoods and contortions which base minds can concoct are unable to make me swerve from that line of conduct to which I stand pledged and which my conscience approves’ (Stockenström, Literal Transcription of the Defence). 41 From his testimony in the libel case it is clear that Stockenström saw the issues without irony in stark dichotomous terms: ‘All the brutal insolence and vulgar scurrility with which I have been assailed, all the falsehoods and contortions which base minds can concoct are unable to make me swerve from that line of conduct to which I stand pledged and which my conscience approves’ (Stockenström, Literal Transcription of the Defence), p. 1; see p. 4. 42 See J. Cell, The Highest Stage of White Supremacy (Cambridge, Cambridge University Press, 1982), p. 264, for the distinction between (violent) primary resistance to conquest itself and (political) secondary resistance on the basis of incorporation. 43 For a telling instance of this discovery, see the report of the Xhosa newspaper Imvu Zabantsundu of the reception given by a ‘large representative and important gathering of Natives’ to a deputation reporting back after making representations on the pass laws to the colonial parliament in Cape Town in 1889: ‘Today they have found a capital plan of campaign against the whites – to fight them by means of the law. … If a similar thing had been done when the guns were taken, war would have been avoided. … They have taught us a great lesson of which we had previously been ignorant. Whenever we felt aggrieved at what Government did to us we hurled the assegai, the result being orphans, but today a victory had been won although there were no orphans.’ (T. Karis and G. Carter (eds), From Protest to Challenge: A Documentary History of African Politics in South Africa, 1882–1964, Volume 1: Protest and Hope, 1882–1934, S. Johns (ed.), (Stanford, Hoover Institution Press, 1972), p. 16. 44 Parekh, Gandhi's Political Philosophy, Chapter 1: ‘Critique of Modern Civilisation’ (MacMillan, Basingstoke, 1989); Colonialism, Tradition and Reform: An Analysis of Gandhi's Political Discourse (New Delhi, Sage, 1989), pp. 26ff. 45 Cited in J.H. Stone, ‘M. K. Gandhi: Some Experiments With Truth’, Journal of Southern African Studies, 16, 4 (1990), p. 727, n. 16. 46 The roots of the injunction against ‘class legislation’ and the hostility to partial or special laws may be traced back to seventeenth-century English common law in its invalidation of royal grants and monopolies and other special privileges and consequent insistence that legislation apply equally to all subjects. During the first part of the nineteenth century, American state courts developed a similar jurisprudence culminating in the Fourteenth Amendment and Equal Protection Clause. See M. L. Saunders, ‘Equal Protection, Class Legislation and Color Blindness’, Michigan Law Review, 96 (1997). 47 M.K. Gandhi, Satyagraha in South Africa (Ahmedabad, Navijan Trust, 1928), p. 101. 48 Perhaps the clearest interpretation of the meaning of this key Gandhian term is provided by Bhiku Parekh: ‘Satya means truth … and agraha … means insisting on something without becoming obstinate or uncompromising. When the two terms are combined there is a beautiful duality of meaning, implying both insistence on truth and for truth. … Gandhi's theory of satyagraha is at once both epistemological and political, a theory of both knowledge and action’ (Gandhi's Political Philosophy, p. 143). 49 Gandhi, Satyagraha in South Africa, pp. 111–15. 50 Parekh, Gandhi's Political Philosophy, p. 149. 51 Parekh, Gandhi's Political Philosophy, p. 152. 52 Parekh, Gandhi's Political Philosophy, pp. 152–3. 53 Gandhi, Satyagraha in South Africa, p. 102. 54 Gandhi, Satyagraha in South Africa, pp. 103–4. 55 Gandhi, Satyagraha in South Africa, p. 106. 56 Gandhi, Satyagraha in South Africa, p. 106. 57 See M. Swan, Gandhi: The South African Experience (Johannesburg, Ravan, 1985). 58 B.R. Nanda, Mahatma Gandhi: A Biography (New York, Woodbury, 1965), p. 53. 59 B. Moore, Injustice: The Social Bases of Obedience and Revolt, pp. 23ff., 458ff. (London, MacMillan, 1978). 60 Parekh, Gandhi's Political Philosophy, p. 154. 61 Parekh, Gandhi's Political Philosophy, p. 147. 62 See Parekh, Gandhi's Political Philosophy, pp. 130ff. 63 See Parekh, Gandhi's Political Philosophy, pp. 149–50. 64 See Parekh, Gandhi's Political Philosophy, Chapter 5, ‘Theory of the State’. 65 See, for example, H. Adam and K. Moodley, South Africa Without Apartheid: Dismantling Racial Domination (Berkeley, University of California Press, 1986); for Mandela's own account of the influence of the Gandhian tradition, see Long Walk to Freedom: The Autobiography of Nelson Mandela (Randburg, Macdonald Purnell, 1994), pp. 107, 119, 146–7ff. 66 S. Huntington, Third Wave: Democratization in the Late Twentieth Century (Norman, University of Oklahoma Press, 1990). 67 For a succinct account of the alternative options, arguments and perspectives involved in the ‘Torturer's Dilemma’, see Huntington, Third Wave, Chapter 3; more generally, see N.J. Kritz (ed.), Transitional Justice: How Emerging Democracies Reckon with Former Regimes, 3 volumes (Washington, U.S. Institute of Peace Press, 1995). 68 See, for example, R. Rotberg and D. Thompson (eds), Truth v Justice (Princeton, Princeton University Press, 2000); for the classic exchange on the case for prosecution and punish versus the arguments for amnesty and truth, see the articles by D. Orentlicher, ‘Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime’ and C. Nino, ‘The Duty to Punish Past Abuses of Human Rights Put into Context: the Case of Argentina’, both in Kritz, Transitional Justice, Volume 1, pp. 374–438. 69 In A. Boraine et al., Dealing with the Past (Cape Town, IDASA, 1994), p. 109. 70 Interim Constitution of the Republic of South Africa, Pretoria, 1994. 71 M. Mamdani, ‘“When does Reconciliation Turn into a Denial of Justice?” The Truth According to the TRC’, in I. Amadiume and A. An-Ma'in (eds), The Politics of Memory (Pretoria, HSRC, 2000), pp. 176–83. 72 TRC Report, Volume 1, Chapter 5, ‘Concepts and Principles’, pp. 30–45. 73 See, for example, A. Jeffery, The Truth About the Truth Commission (Johannesburg, South African Institute of Race Relations, 1999). 74 See also G. Simpson, ‘A Brief Evaluation of South Africa's Truth and Reconciliation Commission: Some Lessons for Societies in Transition’ (Johannesburg, Centre for the Study of Violence and Reconciliation, 1998); D. Posel and G. Simpson, ‘The Power of Truth: South Africa's Truth and Reconciliation Commission in Context’, in Commissioning the Past: Understanding South Africa's Truth and Reconciliation Commission (Johannesburg, University of Witwatersrand Press, 2002), pp. 1–16. 75 Strictly the five volumes published in 1998 constituted only an Interim Report in view of the ongoing amnesty hearings which continued after the Commission itself ceased its operations when its mandated term expired. Three additional volumes were eventually submitted to the government in 2003 but these do not substantially effect the analysis of the TRC's practice of perpetrator findings given below. 76 These underlying and invisible bureaucratic procedures were at the core of the TRC process but have hardly figured in public debate and discussion. They are only now being made the object of investigation by comparative anthropologists whose critical perspective will be invaluable in assessing the TRC's practice of determining truth and justice. See R.A. Wilson, The Politics of Truth and Reconciliation in South Africa: Legitimizing the Post-Apartheid State (Cambridge, Cambridge University Press, 2001), Chapter 2, ‘Technologies of Truth: The TRC's Truth-Making Machine’, pp. 33–61; L. Buur, ‘Monumental Historical Memory: Managing Truth in the Everyday Work of the South African Truth and Reconciliation Commission’, in Posel and Simpson (eds), Commissioning the Past, pp. 66–95. 77 A. du Toit, ‘The Moral Foundations of the South African TRC: Truth as Acknowledgement and Justice as Recognition’, in Rotberg and Thompson (eds), Truth v Justice, pp. 122–40. 78 A. du Toit, ‘Perpetrator Findings as Artificial Even-handedness: The TRC's Contested Judgements of Moral and Political Accountability for Gross Human Rights Violations’ (unpublished paper, Princeton, 1998). 79 T. Nagel, in State Crimes: Punishment or Pardon: Proceedings of the Aspen Institute Conference, Wye Center, Maryland, 4–6 November 1988 (Aspen Institute, 1989). See L. Wechsler, A Miracle, A Universe: Settling Accounts With Torturers (New York, Pantheon Books, 1990), ‘Foreword’, p. 4. 80 M. Ignatieff, ‘Articles of Faith’, Index on Censorship, 25 (1996), pp. 111ff. 81 M. Minow, Between Vengeance and Forgiveness (New York, Beacon Press, 1998); see also Simpson, ‘A Brief Evaluation of South Africa's Truth and Reconciliation Commission’, pp. 12ff. 82 J. Allen, ‘Balancing Justice and Social Unity: Political Theory and the Idea of a Truth and Reconciliation Commission’, University of Toronto Law Journal, 49 (1999) pp. 315–53. 83 TRC Report, Volume 1, p. 154. 84 In general, see Chapter 5, ‘Naming the Guilty’, in P. Hayner, Unspeakable Truths: Confronting State Terror and Atrocity (New York, Routledge, 2001); more specifically, see ‘Americas Watch, “Truth and Partial Justice in Argentina: An Update”’, in Neil Kritz (ed.), Transitional Justice, Volume II: Country Studies (1991), p. 328; C. Nino, Radical Evil on Trial, p. 80; Servicio Paz y Justicia, Uruguay Nunca Mas: Human Rights Violations, 1972–1983 (1989), in Servicio Paz y Justicia, Uruguay Nunca Mas: Human Rights Violations, 1972–1983 (1989), pp. 424, 429; D. Weisbrodt and P.W. Fraser, ‘Book Review Report of the Chilean National Commission on Truth and Reconciliation’, Human Rights Quarterly, 14 (1992), Servicio Paz y Justicia, Uruguay Nunca Mas: Human Rights Violations, 1972–1983 (1989), p. 472; J. Zalaquett, ‘Balancing Ethical Imperatives and Political Constraints: The Dilemma of New Democracies Confronting Past Human Rights Violations’, Hastings Law Journal, 43 (1992). 85 Wilson, The Politics of Truth and Reconciliation in South Africa, pp. 38ff. 86 TRC Report, Volume 1, Chapter 6, ‘Methodology and Process’, p. 14. 87 TRC Report, Volume 1, Chapter 6, ‘Methodology and Process’, pp. 58ff. 88 Incidental exceptions to this rule include the findings on generals Geldenhuys and Gleeson as legally responsible for the obstruction of justice in withholding information from the relevant authorities in the Ribeiro case (TRC Report, Volume 2, Chapter 3, p. 267) as well as the findings (following the naming of individual operatives and responsible authorities) that ‘the former state is vicariously responsible for criminal conduct’ in that it secured the deaths of COSAS activists in Kagiso in 1982 through extra-judicial killing (Volume 3, Chapter 6, p. 198), but with no recommendation for prosecution. With reference to the KwaNdebele case from 1987, the Commission's finding includes a determination that the KwaNdebele police search ‘was conducted illegally’ (Volume 3, Chapter 6, p. 362). 89 The findings on the cases of Samuel Baloi and Zola Dubeni recommend referral of these cases ‘to the prosecuting authorities for further investigation’ (Volume 2, Chapter 5, p. 228), however, this is an exception.
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