Caritas Sri Lanka - SEDEC

ADDRESS BY HIGH COMMISSIONER FOR SOUTH AFRICA IN SRI LANKA AT THE STUDY SESSION ON LLRC REPORT HELD AT SEDEC AUDITORIUM ON 31^ST JANUARY 2012.

COMPARISON BETWEEN TRC AND LLRC RECOMMENDATIONS

GQM Doidge -South African High Commissioner to Sri Lanka31/01/2012

At the outset let me begin by stating that attempting to compare the South African Truth and Reconciliation Commission with the Commission of Inquiry on Lessons Learnt and Reconciliation and the recommendations emanating out these is enormously difficult for various reasons.

Indulge me as I attempt to unpack this assertion. South Africa’s Truth and Reconciliation Commission was the product of many protracted discussions, forums, meetings, deliberations and negotiations prior to its eventual establishment. The "Convention for a Democratic South Africa" (CODESA) was a negotiating forum created to facilitate a new constitutional dispensation for a post-apartheid South Africa. Established by the end of 1991, it included diverse political representation. Issues which failed to reach satisfactory consensus in these talks, were then carried forward at the Multi-Party Negotiation Process, after which an interim Constitution was drafted. The interim Constitution made provision for the Promotion of National Unity and Reconciliation Act 34 of 1995 which set out the establishment of the Truth and Reconciliation Commission.

The main objectives of the Commission were to promote national unity and reconciliation in a spirit of understanding which transcends the conflicts and divisions of the past. The Commission was conceived as part of the bridge-building process designed to help lead the nation away from a deeply divided past to a future founded on the recognition of human rights and democracy. It had to establish as complete a picture as possible:

(a) of the causes, nature and extent of the gross violations of human rights which were committed during the period from 1 March 1960 to the cut-off date in 1994, circumstances, factors and context of such violations, as well as the perspectives of the victims and the motives and perspectives of the persons responsible for the commission of the violations, by conducting investigations and holding hearings;

(b) Facilitate the granting of amnesty to persons who make full disclosure of all the relevant facts relating to acts associated with a political objective and comply with the requirements of this Act;

(c) establish and make known the fate or whereabouts of victims and by restoring the human and civil dignity of such victims grant them an opportunity to relate their own accounts of the violations of which they were the victims, and recommend reparation measures in respect of them; and

(d) compile a report providing as comprehensive an account as possible of the activities and findings of the Commission contemplated in (a) , (b) and (c) , and which contained recommendations of measures to prevent the future violations of human rights.

In essence, The Truth and Reconciliation Commission (TRC) was a court-like restorative justice body. South Africa’s TRC was arguably the Continent’s best known example of restorative justice which emphasized reconciliation between perpetrators and victims built ideally on a perpetrator’s repentance and a victim’s forgiveness. The hope obviously being that the South African nation would be brought together in reconciliation.

What also must be borne in mind is that religion, specifically Christianity, played an important role in the TRC. “Although the TRC’s task was not officially framed in religious terms, the dominant role of Chairman Archbishop Tutu meant that his theological view of reconciliation often trumped other views. This was aided by the large number of commissioners who came from the faith community.”[1] Thus, Christian theology and the African traditional concept of “Ubuntu” (humaneness) were seen as key to the restorative justice emphasis of forgiveness. This resonated with the largely Christian population as Churches played an invaluable role in the struggle against apartheid.

Whether this role of religion, and specifically, Christianity and its influence on the TRC would work to the same degree in countries where Christianity is not the dominant religion would need to be examined.

The mandate of the Commissioners of Inquiry on the Lessons Learnt and Reconciliation Commission within the timeframe of 21 February 2002- 19 May 2009, were to inquire and report on;

(a)The facts and circumstances which led to the failure of the Ceasefire Agreement operationalized on 21st February 2002 and the sequence of events that followed thereafter up to the 19th of May 2009;

(b)Whether any person, group or institution directly or indirectly bears responsibility in this regard;

(c)The lessons we would learn from those events and their attendant concerns, in order to ensure that there will be no recurrence;

(d)The methodology whereby restitution to pay persons affected by those events or their dependents or their heirs, can be effected;

(e)The institutional, administrative and legislative measures which need to be taken in order to prevent any recurrence of such concerns in the future, and to promote further national unity and reconciliation among communities and; to make any such other recommendations with reference to any of the matters that have been inquired into under the terms of the Warrant.

You will agree with me, that these objectives when compared to those of the South African TRC do differ substantially. Most notable difference is that the South African Commissioners were empowered in law to grant amnesty to those who committed abuses during the apartheid era and no side was exempt from appearing before the commission, including government ministers. In a challenge to the constitutional validity of the amnesty provision in our law, Chief Justice at the time, Judge Ismail Mahomed had this to say:

“ For a successfully negotiated transition, the terms of the transition required not only the agreement of those victimized by abuse but also those threatened by the transition to a ‘democratic society based on freedom and equality’. If the Constitution kept alive the prospect of continuous retaliation and revenge, the agreement of those threatened by its implementation might never have been forthcoming…”[2]

Where amnesty was provided to protect perpetrators from being prosecuted for the crimes of the past, the provision was broad and unconditional. The South African format had the advantage that it elicited detailed accounts from perpetrators and institutions, unlike commissions elsewhere which have received very little co-operation from those responsible for past abuses.[3]

Another significant difference can be found in the Commission’s powers of subpoena, search and seizure which led to more thorough internal investigation and direct questioning of witnesses, including those who were implicated in violations and did not apply for amnesty. The South African Commission was the first to create a witness protection programme. This strengthened its investigative powers and allowed witnesses to come forward with information they feared might put them at risk. Finally, the South African Commission was several times larger in terms of staff and budget than any commission before it.[4]

The TRC's chair Archbishop Desmond Tutu called the TRC, a compromise 'between those who want amnesia and those who want retribution'. In his book “No Future Without Forgiveness” he states: It is crucial when a relationship has been damaged or when a potential relationship has been made impossible, that the perpetrator should acknowledge the truth and be ready and willing to apologize. It helps the process of forgiveness and reconciliation immensely.”

The LRRC report recognizes this important truism and clearly states that for Sri Lanka to move forward, there must be acknowledgement and mourning of losses from all communities. The testimonies of those who came forward, many articulated in depth, offers a much more extensive understanding of Sri Lanka’s human rights situation.

It is commendable and notable that the LRRC Report is a step forward in opening up the space for further discussions and for implementing the recommendations outlined in the interim report and this final report. The report did what it set out to do, which was to outline its overall objective of inquiry into matters and produce a report. The report has been tabled in Parliament and handed to a Select Committee to deal with the issues. Over and above, inter-ministerial committees will be established to oversee clusters of recommendations.

The call for liberalizing of the Sri Lankan Government’s policies with regards to its diaspora communities must be welcomed. The report glosses over gender violence and it is clear more needs to done to address this critical issue. There must also be adequate protection provided for witnesses if future commissions of investigations are to be convened.

Commitment to Reconciliation and Unity, a key recommendation of the South African TRC, must also be advanced for Sri Lanka as it necessary for enduring peace and stability.

The TRC’s attempt to tackle the broader structures of apartheid was through its institutional hearings.  Exposing the role of institutions in perpetrating past violations and formulating recommendations for future reform is a key area where truth commissions can provide a powerful impetus for transformation. The potential for institutional change not only addresses root causes of conflict, but also serves as a form of reparations in that it is a reassurance of non-repetition to victims of past violations.

In South Africa, to counterbalance the amnesty granted to the perpetrators, the TRC considered it vital to provide victims with acceptable forms of reparations since the granting of amnesty to perpetrators of violence precludes the right to start civil claims against them. And according to the TRC Act it was the government that needs to accept the full responsibility for granting reparations.

The TRC process wrapped up in 1998, but post-commission work continues. Recently, the Department of Justice and Constitutional Affairs gazetted proposed regulations paving the way for assistance to victims and their children from the start of their school careers until the completion of their tertiary studies. All monies referred to in the draft regulations are to be sourced from the President’s Fund, set up by the act.

CONCLUSION

For the people of Sri Lanka, this report represents a first phase of many others towards peace, unity and development. There needs to be constant engagement on the list of recommendations contained in the report and timeframes must be agreed to. Inclusion and representation of all sectors in the implementation plans should be carried out. Recommendations which can be easily acceded to, that are practical and require minimal constitutional or legal changes should be the starting point.

It may be crucial to also unpack the role of civil society and the international community in assisting Sri Lanka on this path to progress.

Archbishop Emeritus Desmond Tutu says: “True forgiveness deals with the past, all of the past, to make the future possible. We cannot go on nursing grudges even vicariously for those who cannot speak for themselves any longer. We have to accept that what we do, we do for generations past, present and yet to come. That is what makes a community a community or a people a people- for better or for worse.”[5]

Lastly, allow me to quote from SA’s press release on the LLRC Report:

“The solution to the challenges facing the people of Sri Lanka at this critical juncture lies in a genuine and inclusive dialogue among all the people and political parties in Sri Lanka. To this end, South Africa encourages the Government and people of Sri Lanka to create a conducive environment, inside and outside Sri Lanka that will allow for a meaningful and sustainable political settlement that will lead to a constitution that will be acceptable to all Sri Lankans.

In a spirit of partnership and cooperation, South Africa stands ready to share its experience and work with the people of Sri Lanka as they embark on this journey of building a truly reconciled and united people and nation”

Thank you.