Fanie du Toit
The Institute for Justice and Reconciliation each year recognises, through its Reconciliation Award, those who make a special effort to bring South Africans together in the spirit of justice and reconciliation.
The 2012/13 laureate, the Socio-Economic Rights Institute (Seri), has in our view made a significant contribution to national reconciliation through its courageous representation of the interests of victims of the Marikana tragedy last year, not only at the commission of inquiry but also in the national and international press.
President Jacob Zuma appointed the Marikana Commission of Inquiry to investigate “matters of public, national and international concern” arising out of the tragic incidents at the Lonmin mine on the Platinum Belt of North West province, in which 44 people died, and more than 70 were injured.
The commission has to achieve two important goals. First, it needs to provide accurate, reliable information on how and why public order policing broke down, to prevent similar events from reoccurring. With a socio-political climate that seems to be conducive to heightened levels of public unrest, the commission’s input would be vital. Second, it needs to provide some sense of justice done, primarily for direct victims of the tragedy, but also for the wider mining community where abject poverty is painfully visible.
Any final verdict on the commission’s work should be reserved for when its report finally appears. Hopefully this will be as soon as possible. Justice cannot be delayed and any attempt to postpone or delay the release of the findings of the report until after the elections next year may be cynical, if not immoral.
At the same time it is not too early to note concerns about how the process is unfolding, and what the likely outcomes may be. Judge Ian Farlam is eminently capable. But this process is about more than an ably run judicial process. In important ways it is reminiscent of the Truth and Reconciliation process, reflected in the Marikana commission’s official motto: “Truth, Restoration, Justice”. It is not surprising that many have drawn parallels between the two commissions.
Both commissions were required to work on issues of massive public interest. Both were set up to be essentially victim-centred, at any rate if the official rhetoric was to be believed. Both were tasked with investigating violence where state institutions were potentially culpable. Both had to produce reports with potentially far-reaching recommendations for institutional reform, not least in the important area of security sector reform.
These commissions were, of course, different in important ways too.
Most important, the TRC was designed to consolidate a complex political transition, and to guide the country from a situation where the rule of law had been thoroughly compromised, to a much more credible and fair dispensation. It offered conditional amnesty, not as a step away from the rule of law, but rather as a step towards it. Clearly, as a maturing democracy 20 years down the line, amnesty is no longer an option. Marikana represents a temporary lapse of the rule of law rather than the failure of an entire system on the scale that apartheid represented. Justice therefore needs to be seen to be done.
Earlier this year, just before the one- year commemoration of the massacre, I visited the Marikana community. It was a sobering experience. It was instantly visible just how short South African memories are when it comes to the TRC and how few of the hard-learned lessons during the TRC process are remembered today.
We know from empirical data collected by the Institute for Justice and Reconciliation each year since 2001 that the TRC had made a lasting difference in how ordinary South Africans observe the past, and especially in their common resolve never to accept a racialised or undemocratic government again. Max du Preez, in a recent Cape Times article, was correct when he said the TRC had made a crucial contribution to our transition, despite a spate of recent, ill-informed commentaries to the contrary.
However, observing the Marikana process, the public is left wondering if the TRC legacy made a real difference in the way South Africa is governed. Key to the TRC recommendations were a whole range of structural and institutional reform measures, carefully detailed, over many pages, for ministries as diverse as land reform, justice, safety and security, police, the military and so forth. There has been no systematic effort by the government to account itself against these recommendations. The Marikana tragedy may be one consequence of ignoring the TRC recommendations to the extent they have been.
This is not to say that security sector reforms have not taken place; there have been reforms, good and bad. The point is that the TRC’s recommendations, emerging from an in-depth investigation into state-led and other forms of violence, were simply ignored.
Ronnie Kasrils remarked some time ago at an Institute for Justice and Reconciliation event: “Not once was I briefed on any matter related to the TRC findings during my entire tenure as minister of intelligence services from 2004 to 2008.”
It is a matter of public record that the government failed to honour important promises, made to victims who came forward to the TRC, to pay community reparations and prosecute those who shunned the amnesty process. Has the government taken the TRC lessons as seriously as the public appears to have done? It appears not. If we don’t heed these lessons, we cannot expect not to repeat them.
Marikana victims, many of whom had lost breadwinners, were promised reparations directly after the tragedy, just as their TRC counterparts were. They continue to await meaningful compensation outside very limited assistance with funerals and schooling, just as TRC victims continue to wait nearly 11 years after the final report was received by then-president Thabo Mbeki in Parliament.
Lonmin, the company at the centre of the Marikana tragedy, has contributed towards some of the school expenses of victim families, although on condition that the child is taken to a boarding school chosen by Lonmin. Out of sheer desperation some families have reportedly sent children as young as four to boarding school.
The broader picture, according to recently released reports, is that Lonmin has a history of repeatedly missing social investment targets aimed at improving living and housing conditions of miners.
In the commission itself, victims appear to struggle to make their voices heard and participate fully for a lack of funding, whereas the police, with state money, can afford to hire a range of top silks. Consequently, victim participation has been constrained. NGOs such as Seri are left to fend for victims on a shoestring budget. They have even had to resort to courts to fight this battle.
Moreover, police reports submitted to the commission seem to obfuscate more than they reveal. No real acknowledgement has been forthcoming from the police force that clearly and brazenly overstepped its mark, killing scores of protesting miners in a military-style show of brutal force. Consequently, the Marikana commission has not yet convinced onlookers that it will be able to deliver the kind of truth that could help victims and society at large understand what precisely happened or how police brutality of this kind may be averted.
In such a context, where victims and the poor once again seem to be short-changed, Seri reminds South Africans about the importance of victim-centred justice and of incisive truth-recovery in the aftermath of mass violence, both crucial lessons of the TRC process and now in danger of being forgotten.
Seri’s work also reminds us of the dangers of state-induced violence, even in our democratic country, as well as of the increasing importance of responsible and effective public order policing. In the final analysis, Seri reminds us that the fulfilment of socio-economic rights of all South Africans is fundamental to the realisation of national reconciliation.
l Dr Du Toit is executive director of the Institute for Justice and Reconciliation. The Reconciliation Award will be presented to Seri in Cape Town tonight. Visit www.ijr.org.za