Desmond Tutu’s truth commission opted for ‘restorative’ justice over retribution after apartheid

Before him sat a former political prisoner who had been tortured for years by South Africa’s notorious security police.

As Singqokwana Ernest Malgas described being suffocated with a mask, he wept, and Tutu wept with him.

It would be the first and only time Tutu would cry publicly during the emotionally-wrenching work of the commission that he chaired.

“It wasn’t fair,” he told a television interviewer years later.

“The media then concentrated on me instead of the people who were the rightful subjects. If I wanted to cry, I would cry at home.”

Between 1996 and 1998, some of the darkest days of apartheid repression were re-lived in a kind of public theatre at a series of hearings that Tutu held around the country.

South Africans gathered around their TV sets and radios each Sunday night to hear weekly summaries of the testimonies.

Many learnt for the first time about the brutality of their rigid, right-wing former government, through the words of torture victims or family members of missing activists.

It was “a space within which victims could share the story of their trauma with the nation”, Tutu would later write in the commission’s seven-volume report.

Full disclosure

Unlike the Nuremberg trials, he and his 14 fellow commissioners gathered “not to judge the morality of people’s actions, but to act as an incubation chamber for national healing, reconciliation and forgiveness”.

Perpetrators of horrific violence, often foot soldiers of the repressive regime, could come before the commission and receive amnesty for the actions they carried out. 

It was a tough pill for many observers and victims to swallow, but only if one thought of justice “as retributive and punitive in nature”, wrote Tutu.

“There is another kind of justice — a restorative justice which is concerned not so much with punishment as with correcting imbalances, restoring broken relationships — with healing, harmony and reconciliation.”

Amnesty was meant to be earned at a cost — Tutu insisted that reconciliation and forgiveness could only come from full disclosure.

“However painful the experience, the wounds of the past must not be allowed to fester,” he said. “They must be opened. They must be cleansed. And balm must be poured on them so they can heal.”

And so husbands and fathers sat before the commission and detailed their worst crimes, often breaking families and friendships as secrets and divided loyalties spilt into the open.

“People said amnesty was cheap,” former commissioner and human rights lawyer, Dumisa Ntsebeza, a long-time friend of Tutu’s, told AFP in 2015. 

“Cheap how? Simply because people don’t go to jail?

“In fact, amnesty was a kind of justice even weightier than what we would have got through the criminal justice system.

“In an amnesty application, you would say yourself what you did, in detail. It came out of your mouth, with your own lawyer sitting next to you. It’s a sentence for life. You can’t wash that off.”

‘Unfulfilled’ vision

But Tutu’s vision of a South Africa scrubbed clean through truth fell short.

After the 976 pages of the report were published in 1998, the government led by the liberation giants of the African National Congress failed to act on many of the TRC’s key recommendations.

None of the perpetrators of human rights violations who had been denied amnesty for failing to fully disclose their actions — or failing to prove they were politically motivated — were ever prosecuted.

Nor were any of the generals and commanders who avoided the hearings altogether held accountable.

And the government also did not implement the recommended one-off wealth tax to bridge the gap in a deeply unequal South Africa.

No one was more vocal in their criticisms than Tutu himself.

“How we deal with the truth after its telling defines the success of the process,” he wrote 20 years after South Africans of all races took part in the country’s first democratic elections in 1994.

“And this is where we have fallen tragically short.

“By choosing not to follow through on the commission’s recommendations, government not only compromised the commission’s contribution to the process, but the very process itself.”

South Africa was a sick patient, he wrote, and in the middle of the healing process, the government had chosen to withhold further treatment.

“Our soul remains profoundly troubled,” he concluded.

At Tutu’s death, the TRC is perhaps more celebrated abroad than in South Africa, which still battles with a huge wealth gap between races, limited integration between blacks and whites, and endemic violence.

“It is unfulfilled,” Ntsebeza said of Tutu’s vision for the TRC.

“We emphasised the reconciliation between perpetrators and victims — the blood and guts. We never got to deal with the reconciliation between the haves and have-not, between the rich and poor.”

“The situation would have been far different to what it is now if a significant number of our recommendations had been implemented.

“But I would ask the question, can we imagine a South Africa without it?”

(AFP)