This article reflects on the influence and legacy for gender justice of the ways in which gender-based human rights violations are raised in truth commissions in Africa, with specific reference to the impact of the South African Truth and Reconciliation Commission (TRC). It provides a brief background to how the issues were placed on the agenda of the TRC, and tackles the practical outcomes of these interventions. I interrogate the gender approach and analysis that became a model for the form and practice of transitional situations elsewhere and its implications for gender justice.
A gender analysis of recent transitional justice initiatives is critically important as it shows how the context, history and nature of gender and other intersecting relations of power in society influence and shape the justice and reconciliation outcomes. It is not so much a matter of attributing the failure to achieve gender justice to truth-seeking processes as such, but rather one of understanding the politics of how these processes unfolded. In the South African case, the way in which the issues of gender were addressed during its transition became a limiting factor in how the gendered nature of the past came to be understood and how gender crimes were dealt with. That gender crimes did not find their way into the amnesty process was because neither victims nor perpetrators identified their experiences as such. This does not mean that we should not apply our minds to how gender justice might be better served in TRC processes. In this regard, I refer to some of the improvements made in the TRC processes influenced by the shortcomings of the South African model.
Gender and South Africa’s truth and reconciliation process
When South Africa’s TRC was set up in the aftermath of the constitutional settlement that was the outcome of the negotiations that brought the apartheid regime to an end, women activists, academics and lawyers challenged its terms of reference. The first discussions were initiated at a meeting organised by a feminist lawyer, Ilse Olckers, in an organisation called Lawyers for Human Rights in Cape Town in December 1995. The question at the centre of debate was ‘Does Truth have a Gender?’ The discussion argued that an approach that simply took gender relations for granted and was gender neutral, would miss the specificity of how apartheid structured identities not simply along the fault lines of race, but also along those of gender.1 Further discussions ensued in Johannesburg the following year, which engaged at the same time with the newly appointed TRC Commissioners. There followed what seemed to be a very constructive interaction between the TRC and civil society around both the gendering of apartheid and the gendered aspects of the experience of human rights abuse during the apartheid period.
However, in the debate, the protagonists tended to speak past one another in how they understood gender. While the gender activists spoke about ‘gender’ as a relational construction, the TRC tended to construct gender as the experience of women, rather than understanding it as a term that would enable a more careful understanding of how differently women and men experienced life under the apartheid system, including how gross human rights abuses impacted differently as well. It was this critical gender approach that would address the significant ‘gendered’ experiences of both men and women that the feminist lobby tried to insert into the TRC’s work.
The answer to the question ‘Does Truth have a Gender’ is contentious in that in situations of oppression, whole communities of the oppressed, men, women and children, suffer – so why should one try to disaggregate this experience? Can oppression be disaggregated? All indigenous people were oppressed in colonial societies in the nineteenth and twentieth centuries, all Jews under Nazi rule in the Second World War in Europe and all black people (African, Coloured and Indian) under apartheid. The objective of the apartheid system was to establish and maintain a cheap labour system, to limit the conditions of possibility for self-actualisation of black people and, above all, to ensure the hegemony and power of Afrikaner nationalism by means of an exclusive system of white privilege and white rule that implicated all people who were defined as white under the system. But if we do not analyse the differentiated impact of the highly controlled pecking order of access to jobs, land, housing, health and education which limited opportunities for all black people, albeit in different ways, then we will not understand the way the system operated to divide people at the same time. The racial ordering of Indian, Coloured and African people gave limited privileges to some and not to others. But the system was also gendered.
The economic imperatives of ensuring the continuous reproduction of a black working class and a reserve army of labour put control over biological reproduction at the centre of the system. Labour streams were treated differently: a large pool of African migrant labourers whose families and homesteads in the countryside maintained and reproduced their households, were housed in ethnically segregated mining compounds, while migrant women were housed in hostels on the edge of townships and mines. Racially segregated townships and suburbs developed during the 1960s after extensive forced removals and racial reordering among the four groups classified by race. White, Indian, Coloured and African were the labels given to different race groups, and all were segregated in their own urban and rural spaces. African people were differentiated not only by race but also by ethnicity and by geography. Rural birth limited the rights of some, and excluded them from permanent urban settlement. Migrant families were split up, and women remained with old men and children in the rural areas, the ‘homelands’, where they were visited annually by their husbands. Migrant families were legally forbidden to live in the townships, which were reserved for the settled population of secondary citizens permitted to live there. Urban rights provided a broader spectrum of opportunities in education, health, municipal services and commerce for so-called permanent urban dwellers under Section 10 of the Urban Areas Act. Migrants, both men and women by the 1960s, were confined to less skilled jobs in factories, mines and domestic labour. Urban controls were rigidly imposed to separate racial groups from one another.
After the 1950s, rural homelands were unable to reproduce themselves from farming, so homesteads relied largely for subsistence on remittances from migrant labour with the addition of some subsistence agriculture. The purpose of the apartheid system, while corralling people into ghetto-like townships and suburbs, was to enhance the particularity of racial, ethnic and cultural identity. The strategy was, then, to create institutional and political mechanisms to ‘divide and rule’. For the apartheid regime, the townships on the edge of every town were potentially dangerous melting pots which could foster inter-racial solidarity and new identities. Thus the regime deployed a sophisticated version of the imperial/colonial divide and rule strategy – where the ideas of separate identity and separate development, the promotion of a plethora of ethno-nationalisms and cultural and religious differences, were deployed in order to try and suppress a unitary national identity among the oppressed from emerging. It was the latter that was ruthlessly suppressed. The institutions of control, euphemistically called the state security apparatus, were constituted of a huge network of informers and police control.
The apartheid system, while clearly advantaging all whites, sustained a hierarchy of privilege among the oppressed as well, which meant that benefits accrued to many across the racial divide. Protection of whites and control of blacks were the hallmarks of the system. Despite the efforts of the state, however, it was impossible to prevent the emergence of a different kind of vision for South Africa, one that would allow everyone in society to benefit from the opportunities that the mines, industry and commerce would have to offer to all. In 1955, Kliptown, an old African freehold township outside Johannesburg, was host to the Congress of the People, comprised of organisations across the racial divide opposed to apartheid. The Congress Movement drew up the Freedom Charter to enunciate a great vision for a non-racial future, in which ‘the people’ would govern. In its efforts to limit this national vision from succeeding, the apartheid state banned all opposition movements that suggested such a future. A rigid edifice of legislation, which banned opposition political organisations wedded to the Freedom Charter and permitted extended detention and repressive policing, emerged in the 1960s. The repressive apartheid regime tortured, killed and exiled opponents. Both women and men were its object and its victims.
How was apartheid’s repression and subordination gendered?
In order to answer this question, the group of anti-apartheid gender activists, scholars and lawyers who came together in late 1995, sought ways to ‘engender’ both the understanding of apartheid as a gender system and the methodologies used by the TRC. The TRC itself was the outcome of a negotiated settlement to end apartheid. Negotiations for a peaceful transition to democracy embraced the question of amnesty for those who had violated human rights during the thirty years prior to 1990, a period that can be characterised as a ‘thirty years war’. In order to begin negotiations in South Africa, some amnesty agreements had to be entered into to enable the different liberation movements to deploy their cadres to return from ‘underground’ or from exile. In order to begin negotiations, the ANC and other organisations had been granted temporary indemnity on the basis of full disclosure by their negotiating team of any ‘unlawful’ acts committed in the past. This was expressed in the 1990 Indemnity Act, and covered both ANC and state operatives. In 1992, negotiations in fact broke down over an attack on people in the township of Boipatong in the Vaal Triangle and the perpetuation of violence by a ‘third force’. A further issue was the fact that a number of key ANC leaders remained in prison. Amnesty almost became a sticking point when it came to finalising the interim constitution. The National Party sought a blanket amnesty, but the ANC refused to countenance amnesty without full disclosure of human rights abuses by perpetrators. The resolution of this deadlock was an agreement in the interim constitution that amnesty would be granted to perpetrators, with the details of the mechanisms to be worked out later (Van der Merwe, Dewhirst and Hamber 1999:56).
It took some time for the new structure to reach legislative form. The elections occurred in April 1994. The new Government of National Unity introduced the Promotion of National Unity and Reconciliation Bill in November 1994, which was only passed into law in 1995. The Bill reached Parliament after the Department of Justice, under the ANC Minister Justice Dullah Omar had consulted very broadly with organisations in civil society. Amongst these were two organisations which had considerable influence on the process. The first, Justice in Transition, was set up in order specifically to pursue a process of reconciliation with justice under the direction of Dr Alex Boraine, a former opposition Member of Parliament and subsequently director of the Institute for a Democratic South Africa (IDASA). The other was the Centre for the Study of Violence and Reconciliation (CSVR), initially attached to the University of the Witwatersrand, which had earlier been set up to do research and begin to explain the violence that that erupted in South Africa at the end of the 1980s.
The drafters of the Act were a group of experts contracted by Justice in Transition to do so, with funds raised overseas. But the process was a broadly consultative one, in which key individuals with human rights, political and legal backgrounds participated, along with a range of non-governmental organisations (NGOs) working in the arena of peace, counselling and human rights (Van der Merwe, Dewhirst and Hamber 1999:57). It was a new experience for organisations involved in the peace movement and human rights arena to be involved in the legislative process and for many it was the first time they had engaged the state in a cooperative manner. The experience created an awareness of the need to develop new skills and capacity, and to professionalise their activities. It also generated considerable tensions.
While it is clear that the new Government of National Unity (GNU), essentially led by the ANC, attempted to create a space for civil society to engage in shaping the scope of the TRC legislation, the GNU was at the same time part of a strategy to ensure that all political parties, especially the National Party, would be part of the outcome. The process needed to be seen as driven by the needs of civil society to deal with the past. Submissions to the parliamentary Committee on Justice focused on the importance of education, trauma counselling services for staff and deponents alike, training in statement-taking, issues of mediation between victims and perpetrators, issues of amnesty, punishment and victim’s rights to reparations. The Justice Portfolio Committee held public hearings, and dealt with public submissions on the draft bill. The Bill probably caused more debate and time spent on it than any other bill presented to the Committee. To say it was bitterly contested is to minimise the importance attached to it. In particular, attempts by the National Party to ensure in camera hearings were hotly debated. Debate also occurred around how the Commissioners should be chosen. Although nominations were allowed by civil society organisations and individuals, the State President was given the right to appoint Commissioners. While civil society may have contributed to the initial scope of the legislation and to some of the issues, the multi-party Justice Committee shaped the detail. The process of making the law was intensely political.
Gender activists were particularly concerned that the process should take account of the gendered nature of the experience of human rights abuses under apartheid. For a workshop hosted by the Centre for Applied Legal Studies (CALS) Gender Research Group at the University of the Witwatersrand after the law was passed, Beth Goldblatt and Sheila Meintjes2 drew up a briefing document that laid out some of the key questions and issues that might frame ‘a gendered truth’ (Goldblatt and Meintjes 1996). We were concerned to open discussion about the periodisation of the forms of gender-based human rights violations during the apartheid period, the sites of violence and what these signified in understanding the gendered experience of apartheid and in particular what a gendered experience of human rights violations comprised. Our subsequent research for a submission to the TRC (the CALS submission) drew on the published accounts of political incarceration of men and women as well as on the individual experience of selected respondents. Our findings showed how sexual torture was used to undermine and attack the identity of men and women.
While our focus in the formal submission was on women rather than men, our argument was that in order for the TRC to fully understand the effects of apartheid on different groups, it would be imperative to explore that experience using a gender lens. We argued that it was also necessary to move away from the idea that under apartheid all black people were victims. We argued that even oppressed people, including slaves, have agency. So in South Africa, people acted – some opposed the system; others simply lived their lives as best they could; others were complicit in the system, finding ways of co-operating with the system. The important point was to explore how and why opposition, complicity and complacency operate in conditions of subordination and oppression. These were controversial issues to raise and our research did not go far enough in exploring them. In gender terms, we focused on the experiences of women at the hands of men – including comrades in arms. Our view was that there is continuity in the experience of patriarchal subordination and the oppression of women under the conditions of apartheid, which after 1960 could be defined as a civil war situation. In our view, the more important issue was the systemic aspect of the gendered and gender-ordering nature of apartheid as a system. This meant that apartheid itself could be defined as a crime against humanity. Then there were the actual acts of human rights abuse perpetrated by individual agents of the system, who in the service of apartheid could have made a different kind of choice. The kind of abuse needed to be understood as well. Thus the gendered form of the violence, the sites and the gender of both victim and perpetrator were significant. The gender of victims, survivors and perpetrators mattered, and how this intersected with race, ethnicity, class and religion was critical to understanding South Africa’s past.
One key problem with the TRC was that the terms of reference in the Act that brought it into being made it difficult to contextualise these fundamental issues. The Act was framed in terms of individual acts of human rights abuse and individual effects so that individual perpetrators could be identified in the amnesty process and individual victims who would be eligible for reparations could be identified. The submission we made on behalf of CALS on the other hand, pointed to the systemic and gendered nature of apartheid. Its purpose was to provide a set of concepts and practices that would enable the TRC to draw out the specificity of the differential experience of men and women under apartheid. Although much of our empirical focus was on women, the theoretical issues we raised offered a methodological approach to develop a set of gender tools with which to understand the gendered nature of the systematic oppression of apartheid.
Indeed, the TRC took very serious account of our submission – we met all the Commissioners for an extended presentation of our arguments. The TRC then held a national consultative workshop which included a wide range of NGOs working on different aspects of gender oppression and women’s issues. The CALS submission became the basis for a formal submission to the TRC which substantively influenced the way the TRC dealt with the ‘gendered nature of apartheid’. More widely, the submission was used in other transitional situations as a framework for thinking about gender – as in East Timor and in the Sierra Leonean and Liberian Truth and Reconciliation processes.
In South Africa, this intervention was a key factor in influencing the TRC to hold separate hearings for women which allowed them to present evidence in a ‘safe space’ and which would in theory focus on women-specific human rights abuses. Indeed, we also presented expert evidence at the separate women’s hearings. Our submission also led the TRC to change some of the questions in the depositions used to identify the nature and experience of human rights abuse under apartheid. Specific questions about sexual abuse were then included. One of our key recommendations was that the issue of gender should not simply be a question of women’s experience under apartheid. The point of identifying the differential experience of men and women was to show that apartheid created specific kinds of subjects. The system operated to limit the opportunities for all those oppressed by racial classification and subjected to discrimination – but it did so in different ways for women and men. However, the TRC did not deploy the concept of gender in this way, and was thus unable to provide an appropriate analysis of apartheid. In part this was because the researchers and investigators employed by the TRC were not drawn into the discussions that were held at the various workshops on the gender submission. The CALS researchers were not invited to present their research to the TRC researchers, nor to assist in training the researchers and statement-takers and others involved in framing the final report on what a gender lens would mean. Although the CALS submission carefully and forcefully argued for the integration of gender instruments and gender analysis in every aspect of the TRC’s analysis, the final report instead devoted a single chapter to women. For the activists involved in the process, this was a great disappointment and we considered the outcome a failure.
The implication of the failure to address gender systematically in the TRC’s approach was to ignore gender as a constitutive element of human agency that creates ‘men’ and ‘women’, the roles that they play, the power and authority that they wield and how they interrelate in society. How gender constitutes social life, how it frames power in society, who does what and how, and how this shapes experience and life itself is fundamental. Gender relations are of course intersected by race, class, culture, ethnicity, religion and other aspects of social life – but leaving it out is to skew the kind of history that is written and to blind us to a reading of history that is inclusive of women’s active agency in relation to men’s. Without a gender lens, women’s power, authority and role in history is erased. Thus gender has to be systematically and methodologically part of how we address the past.
So the profundity of that failure is reflected in the way the report dealt with gender – in a chapter on women. In some ways, the CALS submission may have had something to do with this – because our focus was primarily on the experience of women. In the submission, the focus of the discussion was on women, in order to show that both the agency and the victimisation experienced by women was different from that experienced by men. The nature and effect of sexualised violence was different for men and women. Men traditionally saw their role in society as protectors of the family, and women as a reflection of their honour, the progenitors of their family. The body became an important signifier of this difference – and attacks upon the bodies of men and women thus had different effects on each of them. The rape of a man by another man ‘feminised’ the victim, and undermined his masculinity – though not necessarily his honour. It might have long-term psychological effects, however. The rape of a woman, while an attack on her person, did not necessarily undermine her ‘femininity’ in the same way. But for men, the rape of their wives and daughters was a deep disgrace, a dishonour. The term ‘defilement’, a term used in other contexts such as Uganda and Kenya, captures the humiliation experienced by the family of a raped woman. To fully understand the way that men and women experienced torture at the hands of the apartheid regime – especially sexual torture – would thus also enable a fuller understanding of the status and roles accorded to men and women. And it would also help us to understand why women often keep silent about the kind of violation that they experience. In the testimony of women survivors, very few spoke about their own experience. Rather, they spoke about what happened to their loved ones, and of the pain of their loss. Seldom did they speak of the abuse that they themselves experienced at the hands of the police or other agents of the apartheid state.
The CALS submission to the TRC rejected the idea of ‘triple oppression’ to explain women’s experience, particularly that of black women. Instead, it argued for an overlapping, intersecting construction of racialised and gendered subjects in South Africa. But this view did not find a place in the TRC’s final report. Interestingly, the Sierra Leone TRC faced similar pressures.
Despite the pressure put on TRCs from gender activists and gender consultants in every case, a single chapter has been devoted to delineating the experience of gender. Gender thus continues to be used as a synonym for women. The single chapter on women reproduces a flawed view that gender is simply the experience of women. So the most important recommendation of the CALS submission to the TRC – that the final report should not end up with a chapter on women as a gesture towards some kind of gendered understanding of the systemic nature of the way gender power in society constructs women as secondary subjects, as ‘by nature’ the carers and ‘mothers of the nation’ – was ignored. The consequence of this outcome was that the real nature of ‘truth’, the gendered truth, was elided and collapsed into women’s experience alone. So – in truth – we miss the way life under apartheid, or under any other kind of patriarchal regime, was systematically gendered.
Sources referred to
- Goldblatt, Beth and Sheila Meintjes 1996. Gender and the Truth and Reconciliation Commission: a submission to the Truth and Reconciliation Commission. Department of Political Studies and the Gender Research Project, Centre for Applied Legal Studies, University of the Witwatersrand. Johannesburg.
- Olckers, Ilse 1996. Gender-neutral truth – A reality shamefully distorted. Agenda, 31, pp. 61–67.
- Van der Merwe, Hugo, Polly Dewhirst and Brandon Hamber 1999. Non-governmental organisations and the Truth and Reconciliation Commission: An impact assessment. Politikon, 26 (1), pp. 55–79.
- See Olckers 1996.
- Beth Goldblatt was a researcher in the Centre for Applied Legal Studies Gender Research Project and co-hosted the Gender and the TRC Workshop in March 1996 with Sheila Meintjes who lectured in Political Studies, both at the University of the Witwatersrand in Johannesburg.