African Justice: Drawing Parallels

South Africa’s Truth and Reconciliation Commission, TRC, which sat between 1995 and 1998, and the International Criminal Tribunal for Rwanda, ICTR, which began work in 1997 and is scheduled to wind up by 2010, are frequently compared with each other.



This is not surprising because there are many similarities between the two countries. Both South Africa and Rwanda were torn apart by strained relations between their diverse population groups, causing deep trauma across the whole of society. Both broke dramatically with the past. And both in South Africa and Rwanda processes were set in motion to right the wrongs of the past and prevent future repetitions.



But at the same time as South Africans went to the polls to elect their first democratic government, Rwandans 3000 kilometres to the north were perpetrating the fastest genocide in recorded history. Beginning in April 1994, Hutus massacred 800,000 Tutsis and moderate Hutus over one hundred days in an effort to thwart the power-sharing arrangement mandated by the Arusha Peace Accords of 1993. The Tutsi-led Rwandan Patriotic Front eventually defeated the Hutu-led interim government and ended the genocide.



In stark contrast to South African’s experiment with restorative justice, Rwandans asked for United Nations assistance to establish a structure for retributive justice. As a result, the TRC and the ICTR are, in the final analysis, institutions that are very different from each other.



Archbishop Desmond Tutu used to quote frequently the following Bible verse during his tenure as chairperson of the TRC, “The truth shall set you free.” Religious views aside, the assumption that there is a causal link between truth-telling and societal recovery from trauma underlay the formation and practice of the TRC.



For the ICTR, the issue of reconciliation does not arise directly. It seeks to see justice done, specifically by prosecuting those who planned and ordered crimes against humanity in the 1994 genocide.



At the ICTR, the “truth” is not told as much as it is produced in the interaction between the prosecution, the accused, his or her legal representative(s) and the panel of presiding judges.



At the TRC, perpetrators of gross human rights were not prosecuted but given amnesty for telling all. Their victims got more information about what had happened plus a small sum of money and other help in compensation for what was done to them.



At the ICTR, those found guilty of war crimes get lengthy jail terms. Their victims get the satisfaction of seeing punitive sentences being meted out to those who wronged them.



Observers have pointed to the similarities between what happened at the TRC and the ancient African way of dealing with transgressions. The wrongdoer is brought before the community. He or she makes a confession in front of the elders and the rest of the village. Some form of punishment is meted out, and forgiveness and reconciliation ensue. Life then goes on.



This is not how the ICTR works, but it does have some similarities to that other attempt at dealing with crimes against humanity committed during the 1994 genocide in Rwanda – the gacaca (pronounced “gachacha”) tribunals.



The gacaca initiative deals at grassroots level with people who confess to having participated in the genocide – but as lesser perpetrators, not powerbrokers who called the shots.



Thousands of gacaca sessions have already taken place in Rwanda. Driving through the country, you spot one gathering of this kind after another. In open fields or under trees villagers sit and talk – elders, perpetrators, victims and other members of the community, attempting to come to terms with the past.



Jacob Lilly, in an article in the US-based online Gonzaga Journal of International Law, argues that because the gacaca courts are based on local culture they are more likely to create a sense of familiarity, respect, trust and commitment than a process imposed on Rwanda by outsiders.



However, just like the ICTR, Rwanda’s gacaca courts can impose prison sentences. Those found guilty can face sentences of up to 25 years, which can be jail time, or community service, or a combination of the two.



“The most important point of the gacaca courts is that an accused can confess his crime. On the basis of his telling the truth, he could escape imprisonment,” said Professor Michelo Hansungule of the Centre for Human Rights Law at South Africa's University of Pretoria.



TRC hearings in South Africa were much more formal than gacaca proceedings, but broadly speaking they followed a similar formula to deal with gross human rights violations committed during apartheid. And although it was inspired by Chile’s National Commission for Truth and Reconciliation, the TRC was devised by South Africans of nearly ethnic group and political persuasion who faced each other around the negotiating table to end apartheid.



According to South Africa’s Department of Justice, the TRC “was set up by the [post-apartheid] Government of National Unity to help deal with what happened under apartheid. The conflict during this period resulted in violence and human rights abuses from all sides. No section of society escaped these abuses”.



The TRC was a compromise between the different political parties from either side of the apartheid struggle. Both the ruling National Party and the African National Congress, ANC, which went on to win the first post-apartheid election in 1994 and both subsequent elections, conceded that sacrifices would have to be made.



The bitter pills that the different sides had to swallow are too numerous to list. Two examples will suffice. Adrian Vlok, minister of law and order in the white-dominated National Party government, applied for an amnesty. He disclosed that he had ordered policemen to bomb buildings housing anti-apartheid organisations in the late 1980s. He met TRC requirements and was granted a pardon. On the other side of the conflict, senior ANC member Robert McBride asked for an amnesty for bombing the Why Not Bar and Magoo’s Bar in Durban in which three people were killed and 69 injured in 1986. He too met the requirements, was granted a pardon and is now a senior police officer.



Former South African Judge Richard Goldstone, who became first Chief Prosecutor of the ICTR in Arusha and then of the International Criminal Tribunal for the Former Yugoslavia, ICTY, in The Hague, said one of the negative costs of the TRC philosophy was the denial of "justice to some people who are demanding it”.



Along with South Africa’s political transformation in the first half of the 1990s came a new constitution. This document included a statement on national reconciliation. It also made provision for amnesty being granted to individuals – not parties or organisations or other such groups – who had committed politically motivated crimes in the period 1960 to 1994, the period covered by the TRC.



The Promotion of National Unity and Reconciliation Act of 1995 spelled out in detail how the amnesty process would work. There were two basic requirements - full disclosure and a political motive. Perpetrators had to make a comprehensive confession, including revelation of who ordered them to do what. They also had to show they were part of a political structure on either side of the conflict and had followed legitimate orders, or that they at least believed they were acting in furtherance of an accepted cause.



Just showing remorse and apologising to their victims were insufficient for an amnesty. In many cases, the hearings had a cathartic effect, though. There were dramatic moments of reconciliation between perpetrators and their victims. But this was a by-product of the amnesty process, not its intended consequence.



Conversely, there were cases of victims displaying strong animosity towards perpetrators. Some went to court to try to prevent perpetrators from getting an amnesty.



There were also unremorseful perpetrators who refused to admit they had done any wrong. They applied for an amnesty only to stave off possible future prosecution. And in some cases they succeeded – because they met the set criteria – despite clearly not embracing the broader process of reconciliation that the TRC strived for.



Critics of the amnesty process - people like Professor Mahmood Mamdani, director of the Centre for African Studies at the University of Cape Town at the time of the TRC - argued that the scope of the TRC was far too narrow, that there were probably something like 21 million victims of apartheid, not just the 21,000 formally recognised by the TRC as victims of gross human rights violations.



The same kind of criticism is levelled at the ICTR.



“Both the TRC and the International Criminal Tribunal for Rwanda are effective methods of dealing with the atrocities of the past,” said Bongani Majola, deputy prosecutor of the ICTR. “But both have shortcomings. The TRC has left many people feeling that what was done to them was not adequately addressed by the process. Many felt that it was not enough for perpetrators to make a full disclosure.



“The ICTR cannot deal with every case of every perpetrator. It is an elaborate procedure which is not easily understood by lay victims, especially when someone they saw kill others is acquitted.”



What, if any, is the common ground between the TRC and the ICTR?



“Certainly there are parallels,” said Professor Hansungule. “Both processes are aimed at rebuilding the future, although they follow different routes. The aim of the TRC was reconciliation. By identifying culprits and getting them to tell the truth, there was an attempt to rebuild society. But in the classical sense, in the internal criminal justice system, as with the ICTR, one can also broadly say there is reconciliation if someone is punished, is put away.”



The TRC aimed for a public acknowledgment of crimes committed and suffered. Although the true scope of reconciliation promoted by the TRC in South Africa is debatable, millions of TV viewers were day after day confronted by atrocities many said they had not known of before. There were many stories of ordinary white South Africans who said that the TRC hearings had opened their eyes. For the first time they understood what black people had to endure under apartheid.



Eight years after the TRC published its final report, South Africa is a functioning democracy. The country is at peace and people from diverse backgrounds break through the barriers imposed on them by the past every day.



But there are also concerns about sporadic attacks across the colour divide. Some say the frequent farm killings, in which white farmers and their families are brutally targeted, are politically motivated. Attacks also go the other way. An infamous example is that of the Waterkloof Four, a group of white pupils in Pretoria at one of the most prestigious schools in South Africa, who kicked a black man to death. Some cite this kind of violence as proof that true reconciliation in the country is still a long way off. They say simmering resentment on both sides hampers true nation building.



Similarly, despite several high-profile convictions having been secured at the ICTR at Arusha, the body’s critics argue it has dealt with far too few perpetrators and that it has not promoted reconciliation in Rwanda.



Inside that country, thousands of grassroots gacaca trials have been completed, but some observers warn that tensions between ethnic Tutsis and Hutus remain apparent just beneath the surface. It seems Rwanda is still struggling every day to come to terms with the madness that exploded in 1994.



For the time being, perhaps those who doubt whether the TRC and the ICTR were the correct answers to the question of how best to deal with the atrocities of the past should ask themselves where South Africa and Rwanda would have been now without these two bodies.



Stephanie Nieuwoudt is a freelance South African journalist based in Nairobi who frequently reports from Arusha on the ICTR trials.