Verene Shepherd | Truth, reconciliation and restorative justice

In this edition of Reparation Conversation, a collaborative initiative between The Gleaner and The University of the West Indies’ Centre for Reparation Research (CRR), we pay tribute to the late anti-apartheid leader Archbishop Desmond Mpilo Tutu and highlight his role in South Africa’s Truth and Reconciliation Commission (TRC), a role supported by some, criticised by others.

On Sunday, December 26, Archbishop Desmond Mpilo Tutu, aged 90, passed away. He was born on October 7, 1931, in a poor family in Klerksdorp, Transvaal, South Africa. Next to Nelson and Winnie Mandela, Desmond Tutu was, arguably, one of South Africa’s most well-known human rights activists.

He was a major anti-apartheid voice in the 1970s and 1980s and used his pulpit and spirited oratory to help bring down this oppressive regime. As leader of the South African Council of Churches and the first black Anglican Archbishop of both Cape Town and Johannesburg, Archbishop Tutu led the Church to the forefront of black South Africans’ decades-long struggle for freedom, giving meaning to the biblical insight that faith without works is dead. On the contrary, politics were inherent in his religious teachings.

He is famous for saying, “If you are neutral in situations of injustice, you have chosen the side of the oppressor.”

United Nations Secretary General Antonio Guterres, in his tribute, said: “Archbishop Tutu was a towering global figure for peace and an inspiration to generations across the world. During the darkest days of apartheid, he was a shining beacon for social justice, freedom, and non-violent resistance.”

Not only was Desmond Tutu a proponent of non-violence during the anti-apartheid struggle, but after its end, he became the leading advocate of peaceful reconciliation under black majority rule. He won the Nobel Peace Prize in 1984 and a place among the champions for human rights justice and dignity.

It was no surprise that when Nelson Mandela was elected as South Africa’s first black president, he appointed Desmond Tutu as chairperson of the country’s Truth and Reconciliation Commission (TRC), which was set up by the then Government of National Unity to review atrocities committed during the apartheid years. Cited as one of the most important domestic agencies created during Mandela’s presidency, the TRC was based on the Promotion of National Unity and Reconciliation Act, No. 34 of 1995.

Under Archbishop Tutu’s leadership, the TRC effected its mandate through its three committees: the Human Rights Violations Committee, which dealt directly with victims and victims’ statements; the Reparation and Rehabilitation Committee, which was responsible for making recommendations to the president for allocating funds to victims; and the controversial Amnesty Committee, which dealt with perpetrators of apartheid crimes.

RESTORATIVE JUSTICE

In return for an honest accounting of past crimes, the TRC, among other actions, offered amnesty, establishing what Archbishop Tutu called the principle of restorative – rather than retributive – justice and strove, to the dissatisfaction of some victims’ families, to balance accountability with forgiveness for those willing to own up to their crimes. In her book Between Vengeance and Forgiveness, Martha Minow characterises restorative justice as seeking “repair of social connections and peace rather than retribution against offenders”. She describes it as “building connections and enhancing communication between perpetrators and those they victimized, and forging ties across the community”.

The choice of restorative justice as Tutu’s preferred route towards justice was not surprising. He was, after all, a cleric, but this preference is still today one of the most controversial topics in post-apartheid South Africa.

At the time, Tutu admitted that his way towards truth and reconciliation “was a tough pill for many observers and victims to swallow, but only if one thought of justice ‘as retributive and punitive in nature’”, but he further insisted that “there is another kind of justice – a restorative justice which is concerned not so much with punishment as with correcting imbalances, restoring broken relationships – with healing, harmony, and reconciliation.”

Some critics have argued that the TRC’s model of justice was too determined by a “forgive and forget” approach and was in effect an inadequate means of providing reconciliation. Others have expressed the view that Tutu’s pathway to ‘truth and reconciliation’ has led to ‘the appropriation of justice from – instead of its delivery to – some of the victims of the apartheid era and left little room for the true reparative justice. There is evidence of widespread outcries of bitterness among victims as they watched “self-confessed murderers walk free” and did not receive promised compensation as outlined by the recommendations in the Reparation and Rehabilitation Policy recommendations of the TRC (Volume 5, Chapter 5). Former presidents Nelson Mandela and Thabo Mbeki also acknowledged imperfections in both the amnesty processes and the thrust towards reparatory justice for victims.

UNFULFILLED PROMISE

Although there were cogent proposals for reparation and rehabilitation in five categories – urgent interim reparation, individual reparation grants, symbolic reparation, community rehabilitation, and institutional reform – the promise of reparation and rehabilitation is still unfulfilled. In a 2014 special report of The Guardian, Tutu lamented how Mandela’s successors had left TRC business “scandalously unfinished”. He said:

“By unfinished business, I refer specifically to the fact that the level of reparation recommended by the commission was not enacted; the proposal of a once-off wealth tax as a mechanism to effect the transfer of resources was ignored, and those who were declined amnesty were not prosecuted.”

From the perspective of the CRR, there is no incompatibility between reparatory justice as set out in the CARICOM Ten-Point Plan and reconciliation. Indeed, reparation is a form of restorative justice. It is not meant to be punitive or “retributive”.

The regional thrust towards reparatory justice for indigenous peoples, the victims and descendants of the transatlantic trade in enslaved Africans, chattel slavery and deceptive indentureship must continue to hold fast to the six R’s that are the imperatives of the Reparation Movement: remember, reclaim, restore, repair, rights, and reconciliation.

Compensatory justice or reparation has the objective of restoring dignity to victims, restoring them as much as possible to a situation of socio-economic equity and achieving peace and reconciliation. Even Minow agrees that the “core idea” behind reparations is compensatory justice, the view that “wrongdoers should pay victims for losses to wipe the slate clean. Whether or not the slate can ever be wiped clean is a conversation for another time.

Prof Verene Shepherd is the director of CRR. Send feedback to reparation.research@uwimona.edu.jm.