Bodies of Truth: Law, Memory, and Emancipation in Post-Apartheid South Africa
272
Bodies of Truth: Law, Memory, and Emancipation in Post-Apartheid South Africa
272eBook
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Overview
Bodies of Truth offers an intimate account of how apartheid victims deal with the long-term effects of violence, focusing on the intertwined themes of embodiment, injury, victimhood, and memory. In 2002, victims of apartheid-era violence filed suit against multinational corporations, accusing them of aiding and abetting the security forces of the apartheid regime. While the litigation made its way through the U.S. courts, thousands of victims of gross human rights violations have had to cope with painful memories of violence. They have also confronted an official discourse claiming that the Truth and Reconciliation Commission of the 1990s sufficiently addressed past injuries. This book shows victims' attempts to emancipate from their experiences by participating in legal actions, but also by creating new forms of sociality among themselves and in relation to broader South African society.
Rita Kesselring's ethnography draws on long-term research with members of the victim support group Khulumani and critical analysis of legal proceedings related to apartheid-era injury. Using juridical intervention as an entry point into the question of subjectivity, Kesselring asks how victimhood is experienced in the everyday for the women and men living on the periphery of Cape Town and in other parts of the country. She argues that the everyday practices of the survivors must be taken up by the state and broader society to allow for inclusive social change in a post-conflict setting.
Product Details
| ISBN-13: | 9780804799836 |
|---|---|
| Publisher: | Stanford University Press |
| Publication date: | 10/12/2016 |
| Series: | Stanford Studies in Human Rights |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 272 |
| File size: | 5 MB |
About the Author
Read an Excerpt
Bodies of Truth
Law, Memory, and Emancipation in Post-Apartheid South Africa
By Rita Kesselring
STANFORD UNIVERSITY PRESS
Copyright © 2017 Board of Trustees of the Leland Stanford Junior UniversityAll rights reserved.
ISBN: 978-0-8047-9983-6
CHAPTER 1
Apartheid Victimhood before the Courts
THE SOUTH AFRICAN Truth and Reconciliation Commission (TRC) put the concerns of apartheid victims on the agenda of the state and society. It made victims visible in post-apartheid South Africa. Despite this, victims were not content with its work, as subsequent legal and political developments attest. Why is this so? What kind of politics around victimhood did the TRC trigger? What are the concerns of victims, their demands, and the problems associated with the legal and political routes to finding acknowledgment of their suffering and redress?
The South African state has put in place a number of redress mechanisms for the structural inequalities produced by apartheid, from social grants to the Black Economic Empowerment policies, affirmative action, land reform, and land-redistribution programs. Most of these programs do not directly address the injuries people experienced under apartheid rule; rather, they are forward looking, economically oriented, and operate on a primarily individual basis. The majority of them also require that a potential recipient have a certain standing in society in order to successfully claim the benefits.
The main institution to directly address the injuries of the past and to be empowered to recommend forms of redress to victims was, of course, the TRC. Much has been written about its successes, shortcomings, and failures. The TRC hearings were intended to signal a break with the past by uncovering and condemning the atrocities committed by the apartheid regime. A number of the hearings were broadcast daily on the radio, and South Africans learned much about what had until then been hidden and unknown. The commission called on individual perpetrators of human rights violations to come forward, but it also had a mandate to investigate companies' roles in such violations. The commission's driving forces were theological notions of reconciliation and forgiveness, and it concentrated on the cathartic performance of truth and reconciliation. It was an effort that was globally unparalleled at that time. But the commission was also empowered to grant amnesty to perpetrators who voluntarily came forward and testified about their wrongdoing. If these perpetrators gave full disclosure of their crimes and provided proof that they had been politically motivated, they could be freed from civil and criminal prosecution.
The commission took testimony from about 21,000 victims, about a tenth of whom were invited to testify publicly. They testified about the gross human rights violations they or their relatives had experienced at the hands of the former regime. They spoke about experiences of torture, remembered loved ones who had disappeared, and told of family members who had been killed, of being put in detention without a trial, and of other forms of severe ill-treatment. However, many victims' submissions were not accepted by the statement-takers because they did not fit the TRC's narrow legalistic categories of gross human rights violations and political victimhood (cf. Cronin 1999, 6). Many other victims were not prepared to speak about their painful experiences (Ross 2002, 163; 2003, 172); others did not even know about the commission and its work. As a result, the majority of victims did not testify at all.
The major and most prominent measure suggested by the TRC was to provide financial reparations to the victims of gross human rights violations and to the communities that were most deeply affected by the violence. Approximately 12,000 victims received a one-time payment ranging from R2,000 to R6,000, paid out between June 1998 and October 2000 (Crawford-Pinnerup 2000).
To carry out its work, the commission attempted to develop a representative definition of victimhood, and in doing so, collectivized the suffering and pain of all survivors performatively (cf. C. M. Cole 2009). It did this, however, by singling out individual victims, who would then speak for all victims and survivors. This idea of a representative, one-size-fits-all victimhood was fictive from the start and bound to fail. Its failures were exacerbated by its individualist approach: by focusing on individual cases, the commission lost sight of structural violence (cf. Feldman 2003; Mamdani 2002). The representation of the majority by the few thus failed in a double sense: it relied on the fiction of healing by proxy, and it remained blind to collectively experienced structural victimhood. Hence, injury ultimately remained individualized, as an act and as a status and, still, for most victims today, as an experience. This has had important consequences in the years after the TRC.
After the TRC
In the eyes of the international community, South Africa had dealt with the past through the TRC; yet in South Africa, apartheid issues did not end when the commission finished its work. Even though the hearings had run for only fifteen months, in 1996 and 1997, it took the commission's Amnesty Committee and the Reparation and Rehabilitation Committee an astonishing six years to table their findings and make their recommendations to the South Africa's president. When the two final volumes of the TRC Final Report were handed over to the president, Thabo Mbeki, in 2003, it was he who decided which of the TRC recommendations to endorse and implement. To the 21,000 listed victims, his announcement came as a shock: instead of the recommended Individual Reparation Grant of R20,000 a year for a period of six years, he granted victims a one-time payment of R30,000 per victim or surviving relative. By September 2008, approximately 16,341 of the 21,000 victims had been assisted, either through payment of interim or final grants.
By the time the Amnesty Committee completed its work, in mid-2001, it had granted amnesty to 1,160 of 7,094 applicants and rejected 5,392 applications (Du Bois-Pedain 2007, 35–39; Sooka 2003). The TRC itself always made clear that if amnesty was refused, or if perpetrators did not submit an application, criminal investigations should continue and suspected perpetrators should be brought to trial (Du Bois-Pedain 2007, 54). The TRC staff had compiled information about three hundred cases that they thought should be prosecuted. The files were turned over to the National Prosecution Authority (NPA) when the TRC closed down. There were rumors that the South African government was considering initiating what would have been a second amnesty process (Du Bois-Pedain 2007, 54–55; Klaaren and Varney 2000). But Mbeki denied this in a speech to Parliament in April 2003. Yet despite his assurances, the state made little attempt to pursue the cases. As Antje Du Bois-Pedain (2007, 55) noted, "[P]ost-TRC prosecutorial policy can be summed up in a laconic 'much talk, little action.'" Apart from a few high-profile cases, only a small number of trials, against lower level officials, were conducted, most of which resulted in acquittals (Sarkin-Hughes 2004, 373–81). In consequence, "the amnesty intended to be individual turned into a group amnesty. For any perpetrator who was not so identified was a perpetrator who enjoyed impunity" (Mamdani 2002, 34).
In 2005, the NPA, in line with the TRC recommendations, created the Missing Persons Task Team, whose mandate is to search for the missing graves, including mass graves, of political prisoners. The NPA has since followed up on some disappearances and facilitated the reburial of the remains. By February 2012, it had identified seventy-two individuals, and returned the bones to their families for burial (Aronson 2011; Fabricius 2012). The head of the Task Team, Madeleine Fullard, estimates that there are still another 200 to 250 missing persons inside South Africa, and about two thousand activists who disappeared in exile in such countries as Zambia, Tanzania, and Angola. A strong quest to exhume bodies came out of the victims' testimony before the TRC. Up until 2003, the commission itself had carried out some fifty exhumations.
Many questions remain. For example, the TRC archive has not yet been opened to the public. The information it contains is not only important for researchers but also for surviving families seeking to find out what happened to their loved ones. (It would, of course, also provide grounds for civil lawsuits against individual perpetrators.) Issues of confidentiality would need to be carefully addressed; but the state has not yet communicated any clear intention.
Furthermore, not until 2005 did the South African government establish the TRC Unit in the Department of Justice, which was supposed to consider the commission's recommendation of the payment of community reparations. The TRC Unit was established, under rather vague terms, to develop and implement programs for communities particularly burdened by the legacy of apartheid-era violence. The unit's precise mandate and organization remain unclear, but its programs will be financed from the President's Fund.
Another major pending TRC-related issue is the President's Fund, which was created by the government under terms of section 42 of the Promotion of National Unity and Reconciliation Act (Act No. 34 of 1995) to fund "all amounts payable to victims by way of reparations in terms of regulations made by the President" (subsection 2) and "all amounts payable by way of reparations towards the rehabilitation of communities" (subsection 2A). Many states, including the Netherlands, Switzerland, and Germany, have contributed to it. The fund is administered by the Office of the Chief Financial Officer in the Department of Justice and Constitutional Development. Since its establishment in the mid-1990s, it has accumulated more than R1billion. The first explicit policy on how the money should be used was formulated only in May 2011. The Department of Justice gazetted draft regulations to govern the provision of basic and higher education and medical benefits for victims and their dependents, and invited responses. The regulations stipulated that only the victims identified and listed by the TRC were eligible. Civil society groups harshly criticized this "closed list" approach and demanded, in the courts, that the process be stopped until "meaningful consultations are carried out with victims and interested parties." In regulations gazetted in November 2013, the Department of Justice and Constitutional Development announced its intention to use half of the fund's money for infrastructure projects in 18 of the 128 communities the TRC had identified as particularly in need of reparations. For Khulumani, which was not involved in the drawing up of the regulations, it fails to address apartheid victims' specific needs and represents an abuse of the department's mandate to manage the fund.
Even though the TRC had no executing powers (apart from its Amnesty Committee, which could grant or refuse amnesty), the state's negligence simply confirmed victims' ambivalent perceptions of the TRC's work. These perceptions have been triggered by the state's failure on two measures that were supposed to facilitate social justice and social equality: the prosecution of perpetrators and the payment of reparations to individual victims and severely affected communities. Measured against the expectations raised by the TRC process, the state has failed on all counts to properly deliver on them.
Khulumani Support Group
Although victimhood became a legal category for which only some qualified, the commission's work did facilitate the emergence of a victim subjectivity that had effects beyond the TRC. Across South Africa, disappointed victims started to organize. The Khulumani Support Group was launched in 1995, and has grown into a national organization, with provincial, regional, and local branches, all operating under the Khulumani umbrella. It is the only membership-based group of apartheid-era victims in South Africa. To date, Khulumani comprises around 104,000 members. During my research period alone, between 2009 and 2013, about 20,000 people applied for membership — a number equivalent to the entire TRC list of victims.
Members are persons who survived some form of violence inflicted by the apartheid security forces or its collaborators, including torture; detention without trial; sexual assault, abuse, or harassment; banning and banishment orders; deliberate withholding of medical attention, food, and water; the destruction of homes, and the mutilation of body parts. Members also include those whose family members were abducted, disappeared, or killed. Only about 10 percent of Khulumani's members were officially recognized as victims by the Truth Commission and received reparations (Madlingozi 2007a, 120). Prospective new members usually contact an executive member at home or after a Khulumani outreach meeting, or apply in person at a provincial, regional, or local office. There, they tell their stories to a data collector, who fills in the Needs Assessment Form for them. The data collector is either an active member in a specific community or an office manager. Applicants have to provide proof of identity; sign an affidavit; bring newspaper clippings of the event their injury relates to if they have them; and, if their victim status is linked to a death in the family, a copy of the death certificate.
Sporadically, the organization makes statistics about its membership public. They are based on Khulumani's Apartheid Reparation Database, a project formally started in 2003 when Khulumani launched the Needs Assessment Form, which both serves as the membership application and captures the profile and the needs of the applicants.
The latest available data are based on 44,931 entries dating back to October 2009. According to the organization, 69 percent of its members are female; 46 percent are single, 40 percent married, 11 percent widowed, and 3 percent divorced. Furthermore, 76 percent of the membership is unemployed; 12 percent are employed; 7 percent are pensioners; and 5 percent are self-employed. Only 4.9 percent of members have one dependent; 10 percent have two dependents; 52.5 percent have three to six dependents; and 32.6 percent have between seven and ten dependents. If one considers that 76 percent of members are unemployed and around 85 percent have three to ten dependents, one sees that the material situation of many members is precarious.
The kinds of violations applicants reported give an idea of what a majority of the membership experienced in the past and still grapples with today. About a third of the applicants reported "extra-judicial killings" of people close to them. Forty percent reported "indiscriminate shootings," which are defined on the form as "random shootings mostly during times of violence by the police, defence force, opposing political groups, and vigilante groups." About 6 percent of the applicants said they went through "prolonged arbitrary detention," a widespread practice, especially during a state of emergency. Furthermore, 22 percent of the applicants reported what falls under Khulumani's category of "torture and inhumane treatment," which includes torture, police brutality, violent assault with a political motive, and total destruction of property. Finally, 0.4 percent reported that they or their late family members experienced rape, which includes any reference to sexual assault.
One of three members experienced a killing in his or her family or has a family member who disappeared. An even larger proportion of the membership experienced shootings, which often left them with disabilities or unable to work. Thousands of members were kept in prison without a trial, many in solitary confinement. A fifth of the membership experienced torture or other forms of police violence, including the destruction of property.
Members assess their most important needs as follows: medical assistance (20.1 percent), housing (27.8 percent), education (24.3 percent) and employment (27.8 percent). In a breakdown of "urgent needs," 7.3 percent indicated mental health support; 5.8 percent, support or treatment of disabilities; and 5.5 percent said they needed home care and suffered from chronic illnesses. Almost a quarter of applicants stated that they urgently needed new housing. Education — skills training, adult basic education, secondary and tertiary education alike — ranks highest as an urgent need (46 percent). With regard to age, there is no recent breakdown. The latest data go back to 2006 and are based on only 9,648 members. Of these, 25 percent of the roughly 10,000 members were aged over sixty years at that time, and 5 percent were under thirty. The majority, 70 percent, were between thirty and sixty years old — a broad category that includes members of different generations who experienced apartheid quite differently.
(Continues...)
Excerpted from Bodies of Truth by Rita Kesselring. Copyright © 2017 Board of Trustees of the Leland Stanford Junior University. Excerpted by permission of STANFORD UNIVERSITY PRESS.
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Table of Contents
Introduction1. Apartheid Victimhood before the Courts
2. Reparation, Representation, and Class Actions
3. Embodied Memory and the Social
4. The Formation of the Political
5. Emancipation from Victimhood
6. Ethnographic Experience and Anthropological Knowledge
Conclusion: The Embodiment of Experiences of Violence as Seeds of New Forms of Sociality