The TRC and CODESA Failed South Africa: It's Time We Reflected on This

By Frank Meintjies · 12 Sep 2013

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Picture: United Nations
Picture: United Nations

Many of the deep-seated social and developmental problems facing South Africa today link back to the transition processes of the early1990s.

The issue is not that we should not have had the Truth and Reconciliation Commission (TRC) or Convention for a Democratic South Africa (CODESA). Rather, the problem is that we saw these processes – adopted as political necessity – as “end points” rather than the beginnings of far reaching changes. And the concern is that we are not openly discussing the flaws of these vehicles of transition.

The TRC explored reconciliation not through punishment, but through trying to build a story about gross crimes against humanity and political reform. As far as individuals went, the TRC sought to combat impunity and rebuild a culture of accountability. For victims of gross violence it aimed to uncover hidden truths of what happened and assist families in getting ‘closure’. As part of the process, commitments were made to victims of gross violence about reparations and, at least in recommendations towards the end, regarding broader reforms and changes.

Yet because it could not bring itself to examine wider exploitation and systematic oppression, the TRC’s work was inadequate. The government has also failed to follow up and prosecute the perpetrators of violence who did not apply for amnesty. In addition, it has not fully implemented recommendations for reparations for victims of gross violations. Government has paid reparations – a pay-out of R30,000 – to less than a quarter of victims of gross human rights violation.

But the TRC’s bigger failure is that it failed to address the more collective loss of dignity, opportunities and systemic violence experienced by the oppressed. No hearings were held on land issues, on the education system, on the migrant labour system and on the role of companies that collaborated with, and made money from, the apartheid security system. As Mahmood Mamdani puts it:

“The TRC held individual state officials criminally responsible, but for only those actions that would have been defined as crimes under apartheid law. It distinguished between the law-driven violence of the apartheid state – pass laws, forced removals, and so on – as legal if not legitimate, and the excess violence of its operatives, as illegal.”

CODESA played a vital role in bringing the new South Africa into being. Since no side could claim victory, adversaries were forced to negotiate. CODESA focused on the restoration of political rights. And there were significant outcomes: restoration of democracy and dignity for all as well as the founding of democratic institutions to secure and advance democracy and human rights into the future. But CODESA did nothing to rearrange economic power. It was silent on the need for ownership changes in major corporations. It sent no message about the need to reverse injustice in land ownership.

Generally, for the liberation movement and activists in the struggle, the political transition was meant to create a platform for further transformation. They would use democratic space, as well as measures such as a land reform, to create a critical mass in favour of on-going and far-reaching redress.

Twenty years on, there have been some socio-economic improvements and small dents have been made into poverty. More people have been employed, even though unemployment remains high. And government has significantly rolled out services such as piped water and electricity.

But economic inclusion of the majority has not taken place. Inequality is rife. The stock exchange reflects the continued concentration of economic power in white hands. According to Duma Gqubule, the black majority directly owns less than 10 percent on the Stock Exchange. Furthermore, less than 10 percent of land has been transferred into black hands. Mazibuko Jara has argued that with the current rate of transfer, it would take a further 30 years to reach government’s target of 30 percent of land transfer to black people.

And so, twenty years on, South Africa is at another stalemate. Although we have a legitimate government and levels of violence in no way match the early nineties, we are once again witnessing scenes of well-armed policemen facing off against protestors. The country is rocked by a wave of strike action and there are on-going service delivery protests. Much of the community level mobilisation is around bread and butter issues – but there is also growing mobilisation around bigger issues such as demands for ‘return of the land’ and nationalisation of the mines. The emergence of the Economic Freedom Fighters is no accident – it is riding on the deep sense of injustice felt by many regarding exclusion from land ownership as well as the negative impact of mining companies on nearby communities. 

In this context, Abba Omar, writing in The New Age, has asked whether we need another TRC. At the same time, some experts are asking whether an official TRC such as ours actually shut out additional voices from below and made it difficult to advance other, more citizen-driven, reconciliation initiatives at sectoral or local levels. Some spokespersons in the business community, recognising the conflicting agendas of key stakeholders and partly to advance the pro-business agenda, are calling for an economic CODESA. Sampie Terreblanche and has recently reminded us of his support (in the past) for a wealth tax and noted that such a move would have contributed to redress and reduced polarisation. And voices such as those of Dumisa Ntsebeza and Yasmin Sooka continue to remind us that unless the high levels of poverty and inequality are addressed, “a successful TRC legacy” and true reconciliation will evade us.

This article is not a call to return to Codesa-type negotiations or to re-start a TRC process. Too much time has passed and the political game has shifted. Rather, it is a reminder to those seeking national solutions or trying to broker shared agendas among major stakeholders that any proposal that hopes to capture the imagination of the masses must take account of the ‘unfinished business’. They should know that for significant numbers of marginalised South Africans, discussion of a better future begins with the historical view – and with robust discussion of the transition process itself.

Meintjies is an independent consultant and a Visiting Research Fellow at Wits School of Public & Development Management.

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MN
12 Sep

Vision?

This article seems complicit with the right wing nationalist agenda. Sure, black ownership of corporates does deracialise them, which is progress. But that will do nothing to shift class inequality and mass pauperisation. As McKinely says, we need to socialise the means of production.

Also where is the evidence that there is mass land hunger? The real struggles are in the cities. This is where protest happens and where movements have been formed. There is no rural movement for land. Is this not just another old nationalist shibboleth? Of course we need agrarian reform. But let's not pretend that it is the burning issue of the day when its clear that its not.

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Barry Saayman
12 Sep

@ MN 12 Sep

"Also where is the evidence that there is mass land hunger? "

What "evidence" do you want?

You apparently know nothing about the ongoing National Democratic Revolution.

Or are you merely another NDR denialist?

Where have you been the past 20 odd Years and why did you not follow the 2013 State of the Nation debate or the vocal public debates about the notorious 1913 Land Act?

You should not comment on social media if you are uninformed.

"At the opening of parliament this year President Jacob Zuma declared that the land restitution process would be reopened to accommodate people who missed the 1998 deadline to lodge claims.

He also promised that the new restitution process would be available to claimants like the Khoisan who lost land before 1913.

The bill the rural development & land reform department has crafted to give effect to these promises will be tabled in cabinet this month.

The amendment bill echoes the brand of political theatre that has underpinned government's statements on land this year to mark the centenary of the Native Land Act of 1913.

For the ANC and its allies, land reform is a key measure of how much post-apartheid redress has been achieved.

That is why ANC secretary-general Gwede Mantashe cautions that the slow pace of land reform is "betraying the revolution" because it was at the "heart of the struggle for freedom".

The ANC wants the amendment bill, which will be presented to cabinet this month, finalised before the election of 2014, the year that will mark two decades of ANC government.

Party leaders on the campaign trail will have to explain why there hasn't been the kind of radical and accelerated land reform that the ANC made central to its 2009 election manifesto.

If passed, the Restitution of Land Rights Amendment Act will open the land claims window for five years.

The department estimates that this process will attract 397000 more claims and cost between R129bn and R179bn - more than double the R83bn the state will have spent on land reform by 2016 if the restitution process had not been reopened."

Read more-

http://www.fm.co.za/economy/2013/09/05/land-claims-legislation-likely-to-backfire



Barry Saayman
12 Sep

Refflection

"But CODESA did nothing to rearrange economic power. It was silent on the need for ownership changes in major corporations. It sent no message about the need to reverse injustice in land ownership."

How can you say this? CODESA I and II failed and were replaced with the Multiparty Negotiating Forum (MPNF) that gathered for the first time on 1 April 1993.

Nobody was excluded and you have the nerve to spread the illusion or perception that all parties did not represent or imposed themselves sufficiently.

Mr Valli Moosa as quoted by DM:

"Moosa disagreed with the statement, adding that the ANC had, on principle, not made any concessions during the negotiations...

But his explanation of the ANC's position on the property clause is much more interesting. Moosa says while the ANC was a multi-class organisation, its primary reason for existence had always been to help black people. And black people had been dispossessed through a series of land-grabs over hundreds of years without compensation.

When it came to the question of property, the ANC, he said, wanted to ensure that people would not be dispossessed of their land arbitrarily and without compensation in the future."

Whereas CODESA failed the results of the MPNF are well documented:

"The MPNF ratified the interim Constitution in the early hours of the morning of 18 November 1993. Thereafter, a Transitional Executive Council oversaw the run-up to a democratic election." - Wikipedia

The Constitution, 1994 stated the following about Economic Activity:

"26 Economic activity
(1) Every person shall have the right freely to engage in economic activity and to pursue a livelihood anywhere in the national territory.
(2) Subsection (1) shall not preclude measures designed to promote the protection or the improvement of the quality of life, economic growth, human development, social justice, basic conditions of employment, fair labour practices or equal opportunity for all, provided such measures are justifiable in an open and democratic society based on freedom and equality."

What more do you expect from the MPNF and this Constitution in this regard?

The Constitution, 1994 stated the following about Property:

"28 Property
(1) Every person shall have the right to acquire and hold rights in property and, to the extent that the nature of the rights permits, to dispose of such rights.
(2) No deprivation of any rights in property shall be permitted otherwise than in accordance with a law.
(3) Where any rights in property are expropriated pursuant to a law referred to in subsection (2), such expropriation shall be permissible for public purposes only and shall be subject to the payment of agreed compensation or, failing agreement, to the payment of such compensation and within such period as may be determined by a court of law as just and equitable, taking into account all relevant factors, including, in the case of the determination of compensation, the use to which the property is being put, the history of its acquisition, its market value, the value of the investments in it by those affected and the interests of those affected."

The Constitution, 1994 stated the following about a Constitution-making body:

"68 Constitution-making Body
(1))The National Assembly and the Senate, sitting jointly for the purposes of this Chapter, shall be the Constitutional Assembly.
(2) The Constitutional Assembly shall draft and adopt a new constitutional text in accordance with this Chapter."

The Constitution, 1994, stated the following about Constitutional Principles and certification:

"71 Constitutional Principles and certification
(1) A new constitutional text shall-
(a) comply with the Constitutional Principles contained in Schedule 4; and
(b) be passed by the Constitutional Assembly in accordance with this Chapter.
(2) The new constitutional text passed by the Constitutional Assembly, or any provision thereof, shall not be of any force and effect unless the Constitutional Court has certified that all the provisions of such text comply with the Constitutional Principles referred to in subsection (1) (a)."

The 34 Schedule 4 Principles are well-documented.

What more do you expect from the MPNF and the Constitution in this regard?

"The emergence of the Economic Freedom Fighters is no accident it is riding on the deep sense of injustice felt by many regarding exclusion from land ownership as well as the negative impact of mining companies on nearby communities."

What do you mean with exclusion form land ownership? Nobody is legally excluded.

http://www.info.gov.za/speech/DynamicAction?pageid=461&sid=39589&tid=121015

However, SA needs to find solutions for inequality.

In accordance with Section 1 (a) of the Constitution, 1996 the Republic of South Africa is founded on inter alia "Human dignity, the achievement of equality and the advancement of human rights and freedoms."

The observance of the universal right that "No one shall be arbitrarily deprived of his property" contained in Article 17 (2) of the UN Universal Declaration of Human Rights is non-negotiable.

"They should know that for significant numbers of marginalised South Africans, discussion of a better future begins with the historical view and with robust discussion of the transition process itself."

This is the basic agreement as per the Constitution, 1994:

"The adoption of this Constitution lays the secure foundation for the people of South Africa to transcend the divisions and strife of the past, which generated gross violations of human rights, the transgression of humanitarian principles in violent conflicts and a legacy of hatred, fear, guilt and revenge.

These can now be addressed on the basis that there is a need for understanding but not for vengeance, a need for reparation but not for retaliation, a need for ubuntu but not for victimisation.

In order to advance such reconciliation and reconstruction, amnesty shall be granted in respect of acts, omissions and offences associated with political objectives and committed in the course of the conflicts of the past."

I cannot think of a more solid foundation as a point of departure towards equality.

And once again everyone is representing him or herself, or by our representatives of choice, in the on-going transformation processes. This how good it gets with multi-party constitutional democracy.

The Rhetoric of victimhood.

Land invasions are out. Those that try this will meet either the full wrath of South African law or the Rome Statute of the International Criminal Court.

For very obvious reasons I intensely dislike those that create expectations that cannot be met.

I even more dislike those that perpetuate victimhood - especially irresponsible persons that pose as Rescuers in the Karpman Drama Triangle.

The unconstitutional space occupied by these devious people need to be reduced. I wish I knew how it can be done best.

http://www.jubilee-centre.org/document.php?id=50

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Rory Verified user
28 Sep

Human Rights

It seems to me that in all our discussions we need first of all to investigate where and in what way the current dispensation is missing the target of achieving basic human rights for everyone.

Where society, and that includes the government, is missing the target we then need to try to find out why. However for the purposes of this discussion I intend to focus on government's role. Is it because the government is acting in ways which are undermining this right and if so why are they doing so? Only once we have answers to this type of question are we in a position to offer meaningful remedies.

I give thanks that we have made it through from 1994 to the present moment. That certainly does not mean that I think that the processes that we have been through to get here are flawless, they aren't. Human life is about constant learning where one seeks to retain what is still working to the benefit of all whilst jettisoning that which never worked to the benefit of all or has ceased working to the benefit of all.


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