i) Highlights from 12 years of campaigning.
Activities have included multiple marches to Parliament, the Union Buildings and the Ministry of Justice. Meetings have been held with the Department of Justice and Constitutional Development (DoJ), and numerous letters and memoranda have been addressed to the Office of the President, the Ministry of Justice and the Public Protector. Khulumani and other groups have issued many press statements and hosted workshops, conferences and a reparations indaba to which government representatives have been invited.
In 2001, the Ministry of Justice handed a draft reparations policy to cabinet. Khulumani requests for a copy were ignored. A Promotion of Access to Information Act (PAIA) request was lodged and refused. The appeal was refused.
Khulumani organized a national reparations indaba in April 2001 in Cape Town. Representatives from Special Pensions Unit, DoJ, Department of Arts and Culture, and Department of Finance (President's Fund) attended. All serious requests raised were ignored by government.
After President Mbeki's announcement on reparations to a joint sitting in Parliament on April 15, 2003, officials in the DoJ drafted regulations for the payment of reparations. An Ad Hoc Parliamentary Committee on Reparations was appointed, and Khulumani was given only 6 days notice to provide its submission. Both Houses of Parliament accepted the report of the Ad Hoc Committee, which was formulated without wide consultation with civil society and without the participation of Khulumani.
In August 2003, a National Civil Society Dialogue on Reparations was held involving 30 civil society organizations as well as government representatives, including the Minister of Justice. Amongst other recommendations, Khulumani argued for the creation of a Victim / Reparations Desk within government. Following that workshop, Khulumani convened a panel of experts to develop Victim-Centred Policy Proposals. These were presented to a legal team in the Office of the President and to the Director General of Justice on October 29, 2003—the fifth anniversary of the handing over of the TRC report to President Mandela on October 29, 1998. There was no response from the President or the Minister of Justice to these proposals.
During the course of 2004, Khulumani convened focus groups of victims in every province to assess what had happened in their lives during the first decade of democracy. These were sent to every Member of Parliament. Only 2 MPs responded. A booklet of victims' reflection was produced to illustrate their needs and widely distributed to critical stakeholders over the next few years. The TRC Unit expressed unhappiness with the booklet. Victims transformed these reflections into a Charter for Redress that was presented to the TRC Unit and government.
Once the TRC Unit was set up towards the end of 2005, Khulumani made repeated attempts to hold a meeting with the Unit. The head of the Unit advised that it would take up to a year for the Unit to begin its work. Khulumani delivered its reparations proposals to the Unit and unsuccessfully sought a roundtable on the proposals. Khulumani then called upon the Justice Minister and Deputy Minister to respond to their proposals. Khulumani was advised by the Deputy Minister that Khulumani would have received a response if there had been any value in the proposals.
Efforts to build an effective working relationship with the Unit continued, and Unit staff members were invited to every advocacy initiative organized by Khulumani. The Unit sent one representative to all these events. Khulumani also made submissions to the TRC Unit on their exhumations policy and to Parliament on proposals to amend the Special Pensions Act. Khulumani made a PAIA request for the audited statements of The President's Fund and monitoring reports to Parliament by the Unit.
The advocacy efforts over many years have resulted in no substantive engagement between the TRC Unit and organized victim communities in South Africa. This led various organisations concerned with transitional justice to come together in a formal coalition, the SACTJ. During July 2010, the Coalition held a workshop in Johannesburg titled "Towards Implementation of Reparations for Apartheid Victims & Survivors." One member of the TRC Unit, who was prohibited from speaking to the group, attended part of the workshop. Amongst the topics of discussion was the TRC Unit's mandate, as well as its policy on the President's Fund. The workshop group resolved to express its concerns in a written document to the TRC Unit. It was agreed to conduct a national consultation on reparations between civil society and the government. In a letter dated July 27, 2010, the Coalition sought a meeting with the DoJ and registered its position that the drafting of regulations concerning the disbursement of funds from The President's Fund without victim participation, violates both the principles of the Constitution and of the TRC.
Member organizations of the Coalition met with representatives of the DoJ and the TRC Unit on November 4, 2010. The coalition called for a national consultation between government and civil society to deal with the unfinished business of the TRC. The DoJ conceded that it had been exceedingly slow in delivering on matters related to the urgent needs of victims and advised that there were still no empowering regulations on providing identified victims or their dependants with access to education or medical care. The meeting attendees noted that, prior to this meeting, not a single policy consultation had taken place between government and civil society organizations that worked with victims. The DoJ expressed that it too had concerns with its draft Community Rehabilitation proposals, because they had been compiled in the absence of any needs assessment.
The meeting concluded with the following agreements: The DoJ committed to including the Coalition in all policy discussions and plans going forward. The DoJ stated that the Coalition "will be part of the process of putting regulations in place" and that a consultation would be held between the DoJ and the organizations in the SACTJ with a special focus on consultation on community rehabilitation proposals. The DoJ agreed that it was not appropriate for government to be deliberating on these matters on its own. The meeting attendees acknowledged that the TRC had stated that processes would have to be created to address the reality that it had reached only around 21,000 victims. The DoJ agreed that regulations might be able to deal with the many persons who qualify in terms of the TRC's criteria but who were not on the TRC list. The DoJ stated that it would explore new ways of expanding the inclusion of victims. In particular, the DoJ stated that it would now be possible to work together with civil society on policies related to education and health, given that civil society organizations were collaborating in such substantial ways.
The one day workshop with the DoJ took place at its Head Office in Pretoria on December 13, 2010. Agenda items included a focus on the President's Fund, approaches to fulfilling government's reparations obligations to victims—including medical and educational assistance and government's draft proposals on Community Rehabilitation—and presentations on data on identified victims. The main conclusions of the discussions were that it would be possible for government to collaborate with civil society to resolve the unfinished business of the TRC; that every victim of an apartheid gross human rights violation needs formal recognition; that reparations need to address the serious disadvantages that continue to characterize the lives of many victims; and that an inclusive process of victim identification and verification needs to be undertaken from scratch. The DoJ suggested that there should be presentations to the Portfolio Committee on Justice and Constitutional Development in Parliament. The Coalition later learned that the TRC Unit had presented the regulations presently open for public comment to this Portfolio Committee, which had indicated that it wished also to hear the perspectives of victims themselves. The Coalition was, however, never invited, and the present regulations were gazetted in the absence of such consultations.
During the first quarter of 2011, correspondence was addressed to the DoJ and TRC Unit to follow up on different agreements reached at the November and December 2010 events. The TRC Unit responded each time that their consultations with different departments were taking longer than expected, and they asked each time for more patience. Without any further communication, let alone the sharing of drafts for discussion purposes, the DoJ went ahead and promulgated the regulations. On Friday, May 13, 2011, the Coalition was first made aware of the publication of the DoJ proposals on health and education benefits in the Government Gazette on Wednesday, May 11, 2011. In a further letter to the TRC Unit, the Coalition expressed its great dismay and deep disappointment at the gazetting of the proposals without the promised follow-up engagement and agreed-to national consultation.
ii) The following conclusions can be drawn from the attempts by civil society to engage with government.
The experiences outlined above demonstrate a clear lack of intent on the part of the authorities to engage meaningfully, or at all, with interested parties. The first meaningful consultation with groups representing victims only took place in November 2010. Notwithstanding promises to involve these organisations in the drafting of regulations, the DoJ, without any further reference to the groups in question, went ahead and gazetted draft regulations. This conduct is entirely consistent with the government's dismissive approach to victims over the past 12 years. The Coalition is concerned that this step may be an act of bad faith and an indication that the DoJ is simply going through the legally required motions with the intention to forge ahead without meaningful consultation with victims.
The mere ability to lodge submissions does not in our view constitute meaningful consultation. Meaningful consultation would not have involved a secret drafting process. It would not have involved ignoring the very groups which the DoJ had promised to involve in the drafting process and then merely inviting them to comment as members of the public. Past and current practice suggests that by the time laws and regulations appear in the Government Gazette fundamental changes are probably unlikely. At this stage, government departments behind such drafts are often simply pursuing a defence of their drafts. Our Constitutional Court has held that the democracy our Constitution demands is not merely a representative one, but is also, importantly, a participatory democracy. In particular it has held that "meaningful opportunities" must be provided "for public participation in the law-making purpose."
Importantly, the Court has held that public involvement includes "a continuum that ranges from providing information and building awareness, to partnering in decision-making." The Court itself stipulated that "[m]erely to allow public participation in the law-making process is, in the prevailing circumstances, not enough. More is required. Measures need to be taken to facilitate public participation in the law-making process." Before simply gazetting what the DoJ would like to make law, it ought to have engaged with those who would be affected by the new provisions through road shows, regional workshops, radio programmes and publications. Khulumani and the Coalition would have made perfect partners in such a programme.
In the context of South Africa's historic project of national unity and reconciliation, the Constitutional Court has specifically ruled in favour of an open and participatory approach to understanding our democracy and dealing with the need for reconciliation that underlies it. The Court noted that "given our history, victim participation in accordance with the principles and the values of the TRC was the only rational means to contribute towards national reconciliation and national unity. It follows therefore that the subsequent disregard of these principles and values without any explanation was irrational." The Court added that decision making in such a context that excluded victims was "entirely inconsistent with the principles and values that underlie our Constitution," such as the "principles of accountability, responsiveness and openness."
We submit that the DoJ has chosen not to provide meaningful opportunities for public participation in the regulation-making process, notwithstanding its general invitation to the public to make comments. It has specifically decided not to partner with relevant organizations in the decision-making process. In the context of designing reparations for victims of our past conflicts, it was obliged to do so. There can be no doubt that the objectives of such a process include the promotion of national reconciliation and national unity. In the circumstances the DoJ's exclusion of victim participation, and in particular its persistent rejection of attempts by Khulumani and the Coalition to partner with it, are wholly irrational. We submit that such exclusion betrays the principles and values of the TRC and is entirely inconsistent with the principles of accountability, responsiveness and openness that underpin our Constitution.
