Reparations Lessons from South Africa

1. Reparations Lessons from South Africa Dr Fanie du Toit Le rôle, la place et le récit des victimes dans les processus de justice transitionnelle 18 et 19 février 2013 Hôtel Golden Tulip El Mechtel • Tunis

2. REPARATION: A FUNDAMENTAL RIGHT INTERNATIONALLY AND IN TUNISIA • “States  should  endeavour  to  establish  national programmes  for  reparation and  other  assistance  to victims  in.” (2006 UN Basic Principles, Principle 16) • Thomas Lubangacase: both individual and collective reparations were necessary • Various Tunisian transitional justice measures since 2011 have acknowledged the importance of reparations as a right: • The National Fact finding Commission recommended effective redress for victims and their families of abuses from Dec 17, 2010 onwards. • Decree law No 97 proposes a memorial for victims of the January 14 Revolution, a museum, renaming of street names, January 14 as a public holiday etc. • The Draft Law on TJ acknowledges the Right to Reparation (Art 11)

3. BASIC PRINCIPLES AND GUIDELINES • 4 kinds of victims • Suffer harm directly • Dependents of those who suffer harm directly • Collective victims such as organisations, communities or institutions • Individuals injured in an attempt to prevent violations • Tunisian Law recognise all four categories of victims • 4 forms of reparations • Compensation – financial damages for physical or mental harm • Restitution – freedom, human rights, property, employment • Rehabilitation – medical and social care, including psychological and legal needs • Satisfaction and Guarantees of non-repetition – effective measures to aid the cessation of violence, reconciliation and institutional reform, public disclosure, exhumation, search for the disappeared, public efforts to apologise and memorialise the victims • Tunisian law tends to emphasise the first and pay less systematic attention to the last.

4. Reparation after apartheid • A delicate balance between Civic and Human Dignity • 21,000 victims of gross human rights violations identified – based on solid but not exhaustive documentation • Victims learned the truth about what happened • Most felt their suffering was officially recognized. • 16,800 applied for reparations and received $3000 each – today there are 200 left who have not been paid • Various liberation memorial have been built • Education, Medical and Infrastructure regulations are still being considered for promulgation fifteen years after the TRC

5. Performance of TRC in letting the families of people know what happened to their loved ones

6. % saying it is TRUE that apartheid was a crime againsthumanity

7. The result of all of this is very angry victims – WHY?

8. KEY OBSTACLES • Obstacles • selection criteria: A closed or open list? • munificence: the issue of a minimum wage • relation to development • But there was a deeper problem

9. Reparations constituted a promise to restore victims to their rightful place as equal citizens. During the TRC, we turned the world on its feet for a brief moment and then allowed it to flip back again. • As the process of reparations continued, victims no longer felt respected, consulted, included…

10. Acknowledgement restores human dignity fosters citizenship and national belonging corrects history and creates a shared past complies with human rights standards.

11. Acknowledgement: A delicate balance between • Symbolic and the Material • Lack of budget • Human dignity and the need for acknowledgement • Inclusivity and Closure • Who is excluded? SA’s closed list – in Tunisia? • Whose suffering? – the Freedom Park Memorial and Gacaca • Accountability and Reconciliation • Should perpetrators pay reparation? • The Cheshire cat smile of apartheid leaders/Morocco • Who benefited? Beneficiaries behind their walls

12. Whose duty then? • Rights imply duties • No one wants the duty of reparations • International Law: State has the primary duty and yet… • Political will lacking in SA, but also almost everywhere else: typical excuses include: • It was a previous government • I don’t agree with your findings: Mbeki and De Klerk • My responsibility is 22 million South Africans, not the TRC’s 22 thousand: Trevor Manuel • Realism/integrity needed – The road to hell • is paved with good intentions • The case for a permanent oversight agency to monitor reparations, both symbolic and material

13. % support white South Africans paying some of the costs of compensating the victims

14. Hindsight is perfect: South Africa’s “if only” list Guidelines only minimum standards Guarantees of non-recurrence ensure that reparations are not superficial Vital that reparations respond to victim’s needs and perspectives, rather than what we think are victims needs and perspectives = consultation Acknowledgement is a vital need, throughout the process. Don’t allow it to be bureaucratised. Very important to observe and establish links between reparation programs and other recourse at the disposal of victims (accountability through criminal and non criminal means and reconciliation processes). Reparations in a vacuum may be meaningless, an insult to victims (“blood money”)

15. “If only’s” Continued Important to pay attention to how will reparation programs be financed. Where? How? Clear conceptions of the form and nature of reparations: individual or collective, material, symbolic or other Develop a reasonable scope for reparations: integral, reasonable, adequate, non discrimination among victims Closure is important: reparations delayed in reparations denied

16. Institute for Justice and Reconciliation www.ijr.org.za Tel: 021-763 7128 Fax: 021-763 7138Email: info@ijr.org.za Postal Address PO Box 18094Wynberg,7824Cape TownSouth Africa Find us on Blog: http://sabarometerblog.wordpress.com/

17. And finally: Olga Macingwane in Worcester

18. Reparation is important element but could also do considerable harm. And therefore, the importance of 5 principles: Documentation Consultation Divisions and competition amongst victims Tend to let beneficiaries off the hook Acknowledgment Realistic Promises made with integrity Limits of legal compensation Danger secondary traumatisation when disappointed An Independent overseeing mechanism