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South Africa went through the oppressive apartheid system from 1948 to 1994 when the white minority National Party was voted out, and a Government of National Unity installed. The apartheid system was a very discriminative and racist state-sanctioned system. The white minority class in the country was given first-class citizen status and afforded political and economic privileges. At the same time, the other races were treated as inferior and blatantly discriminated against. During the apartheid regime, the government perpetrated great atrocities against non-White citizens. This led to a lot of resentment and anger against the Whites in the country. When the apartheid government lost the leadership of the country, there was considerable apprehension about what would happen in light of the significant injustices that the apartheid government had engaged in. The new government understood that the dark legacy of the past regime needed to be addressed. As such, one of the opening actions of that the first democratically elected South African Parliament did when it went to work in 1995 was set up a Truth and Reconciliation Commission (TRC) that was going to implement restorative justice in South Africa.
Defining Restorative Justice
Thesnaar (2008) defines restorative justice as “a process whereby all the parties with a stake in the particular offense come together to respond collectively on how to deal with the aftermath of the offense and its implications for the future” (p.56). Unlike retributive justice, which focuses primarily on punishment, this approach attempts to reach a complete understanding of justice and foster healing restoration.
Need for Justice and Reconciliation
When the democratically elected government took power, international human rights advocacy groups supported the implementation of transitional prosecution based on retributive justice. However, the South African leaders rejected this approach, and they sought for a restorative approach to justice. Asmal (2000) suggests that restorative justice and reconciliation were chosen out of a strong desire to end the illegitimate and violent governance of the old regime while ensuring that the nature of governance changes under the new government.
Restorative justice was seen as a necessity for the future prosperity of the country. The TRC, which was to serve this justice, was formed from the understanding that for South Africa’s democracy and development to have a future, the country needed to deal with its past (Verwoerd, 1999). Post-apartheid South Africa had to confront a legacy of violence and abuses committed by the former regime. The legacies of the apartheid system where a white minority dominated needed to be faced. Restorative justice was to be a stepping-stone, helping in the promotion of national unity (Verwoerd, 1999). It was supposed to guide the nation from the injustices of apartheid to a new future of democracy and development for all. Through restorative justice, the injustices committed under the apartheid system would be reviewed and responded to.
Justice Through the Truth and Reconciliation Commission
The TRC was taxed with several crucial roles to help in reconciliation and healing. The commission was required to get a complete picture of the gross human rights violations that occurred during the apartheid regime. It was then to offer victims an opportunity to retell their experiences of the violation. The individuals identified as the perpetrators were to be offered amnesty if they gave “full disclosure” of their crimes. Finally, the commission would make recommendations to the head of state, and the South African parliaments concerning reparation and rehabilitations that the commission felt were necessary to bring about healing and avoid a repeat of the crimes in the future.
The South African reconciliation justice system was unique in that while typical truth commissions provided blanket amnesties, the South African commission provided individual amnesty. This amnesty was based on personal application and participation by the perpetrator in the truth-telling process. An important consideration when adopting the TRC is that values of reconstruction and reintegration had to be pursued even as the victims looked for justice. Restorative justice, therefore, fostered peace and under healing for offenders and survivors alike.
Impact of Restorative Justice and Reconciliation
Restorative justice and reconciliation were able to bring healing, and it enabled the country to move forward after the brutal apartheid era. The justice approach helped in the construction of a legitimate record of what had happened. Alfred and Marietjie (2000) state that such records are of great use since they help later generations distinguish between fact and exaggerations and serve as warnings to future generations to avoid the same mistakes. Leebaw (2001) highlights that the TRC demonstrated a deep commitment to peace by imploring perpetrators to confess
Survivors were able to achieve closure, and the nation received the truth. South Africans, in general, and the victims of gross human rights violations under apartheid, in general, felt that the commission had been effective in bringing out the truth (Kashyap, 2009). The TRC was able to generate widespread involvement on a national scale by publicly televising some of the hearings and conferences. Alfred and Marietjie (2000) declare that the use of restorative justice and reconciliation tools were therapeutic, and it contributed significantly to the healing of the people who had encountered gross human rights violations.
Despite the positive impacts that the restorative justice reconciliation had in the country, this approach came under heavy criticism from many people. Many South Africans felt that focusing on reconciliation led to a denial of justice, as the victims could not seek civil redress due to the amnesty granted (Asmal, 2000). Some people wanted retributive justice, and they felt that the perpetrators of crimes in the apartheid regime should have been severely punished for their crimes.
The post-Apartheid South African government chose the restorative justice and reconciliation approach to help deal with the gross violations of the past regime. This approach was able to help South Africa transition from the oppressive apartheid system into a democratic system where equality for all people was guaranteed. The South African TRC was regarded as a success, and it has been used as a template for restorative justice by many other countries.
Alfred, A. & Marietjie, A. (2000). The South African Truth and Reconciliation Commission as a Therapeutic Tool. Behav. Sci. Law, 18(1), 459-477.
Asmal, K. (2000). Truth, Reconciliation and Justice: The South African Experience in Perspective. The Modern Law Review, 63(1), 1-24.
Kashyap, R. (2009). Narrative and truth: a feminist critique of the South African Truth and Reconciliation Commission. Contemporary Justice Review, 12(4), 449–467.
Leebaw, B. (2001). Restorative justice for political transitions: lessons from the South African Truth and Reconciliation Commission. Contemporary Justice Review, 4(3), 267-289.
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Thesnaar, C. (2008). Restorative Justice as a Key for Healing Communities. Religion & Theology, 15(1), 53-73.
Verwoerd, W. (1999). Individual and/or social justice after apartheid? The South African Truth and Reconciliation Commission. The European Journal of Development Research, 11(2), 115-140.