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Longer, analytical article.  Evaluating the gender content of reparations: lessons from South Africa

Summary & Comment: Evaluating the Gender Content of Reparations: Lessons from South Africa is Chapter 1of a well researched and important book that examines what happens to women whose lives are transformed by human rights violations. The book is entitled What Happened to the Women? Gender and Reparations for Human Rights Violation; the Foreword and Introduction are posted in Africafiles gender section (www.africafiles.org/article.asp?ID=14325 )and provide essential definitions of concepts and basic gender issues in the midst of conflict. South Africa was the leader in establishing a TRC (Truth and Reconciliation Commission) and relatively successful in actually paying reparations. The case study is valuable because it examines the process, types of engagement and the implications of flaws as well as noting the positive if imperfect impacts as gendered differences in the experience of the conflict, and therefore differences in harms and needs are analyzed. Much is to be learned from this study as from the other African studies (Sierra Leone and Rwanda). CM [Please note, the bibliography and references are not presented here as they take many pages: both pdf and htm versions are available online.]

Author: Beth Goldblatt Date Written: 15 February 2007
Primary Category: Gender Document Origin: International Center for Transitional Justice
Secondary Category: Southern Region Source URL: http://press.ssrc.org/RubioMarin/
Key Words: South Africa, TRC, apartheid, mandate, participation

Printable Version
Evaluating the gender content of reparations: lessons from South Africa

Chapter 1
What happened to the women? Gender and reparations for human rights violations


South Africa was colonized by the Dutch, and later by the British, in a brutal manner. The racist laws that were established under colonialism were consolidated into a system known as apartheid by the National Party, which ruled from 1948 to 1994. Apartheid divided society into racial groups and gave preference to “whites” over “blacks” in every aspect of life — place of residence, schooling, job opportunities, and so on. Blacks were separated from whites in public amenities and were provided with inferior services. They were denied the right to vote and many other basic human rights.

From the start, apartheid was strongly opposed. The struggle was led by liberation movements, the most significant of which was the African National Congress (ANC), which later became the ruling party in the first democratic government. The liberation struggle was initially nonviolent, but soon became an armed conflict.

The struggle was waged on a number of fronts:
 - liberation armies were trained outside of the country and led by an exiled
 - an international effort was made to isolate the apartheid government;
 - within the country, community groups battled security forces; and
 - nonviolent protests were carried out in the form of strikes, marches, church
   services, distribution of pamphlets, and so on.

The apartheid government responded to all forms of resistance with violence and repression. During the 1980s, the struggle heightened, involving tens of thousands of people around the country. By the early 1990s, the government, realizing its demise was imminent, began negotiating with the liberation movement.1 Ultimately (and after some terrible bloodletting that punctuated the negotiations), a new constitution was drawn up and the first democratic elections were held in April 1994.

The negotiated settlement included an agreement to establish a Truth and Reconciliation Commission (TRC). The TRC operated between 1995 and 1998, with some aspects of its mandate continuing after this period. Perpetrators of human rights violations during the conflict (designated in the TRC’s mandate as 1960–94) would be given amnesty in exchange for full disclosure of the acts they committed. Victims were encouraged to make statements about the violations they had suffered. The TRC was also tasked with making recommendations on reparations measures to the president. The president would then advise the parliament on subsequent reparations regulations.

Reparations were to be provided to those people designated as victims by the TRC. A person could be designated as a victim either by approaching the TRC to make a statement or by being referred to during an amnesty hearing. Urgent interim reparations (small payments) were provided relatively quickly, but the decision on final reparations was a drawn-out process that fostered significant frustration among victims. For a number of years, the government failed to respond to the TRC’s recommendations on reparations. When a decision was eventually made by the government in 2003, the amount of individual reparation grants was much lower than that proposed by the TRC. This led to anger and disappointment among many of the victims. Since then, almost all of the 19,000 designated victims have received payment as reparations.

Women before, during, and after the conflict : victimization and agency within a continuum of gender-based violence and oppression

Colonial rule in South Africa was very repressive to women. From the earliest times, it was racist, sexist, and violent. There are records of the rape of indigenous women by the first colonists. In one tragic example, Sarah Baartman, labeled the “Hottentot Venus,” was captured and exhibited in Europe as a curiosity and freak. African customary law was codified by colonial governments, sometimes with the support of African chiefs, to subjugate and control African women. Married women, black and white, were accorded the status of minors under a system of patriarchal family and property laws.

The historical legacy of centuries of racism, economic exploitation, and patriarchy is one of highly gendered patterns of poverty and inequality in South Africa today. Women are less likely to be employed and hold the lowest paid and least skilled jobs in an economy where unemployment is rampant. Women assume the major responsibility for child care and household labor. Related social problems include epidemic levels of domestic violence and rape, as well as the disproportional impact of HIV/AIDS on South African women. Furthermore, violence against women today must be understood, in part, by looking at the way in which the political conflict of apartheid redefined masculinity and gender relations in society. Violence against women within that conflict is part of a continuum of gender-based violence and oppression that has shaped South Africa’s history and present reality.2

Women’s participation in and experience of the conflict

Apartheid had both a destructive and a repressive impact on South African society. It destroyed African people’s ways of life by forcing them off their land and out of their homes,3 and by restricting their education, movement, and many other basic rights of citizenship.4 It profoundly impaired the dignity of people categorized as non-white and resulted in significant material deprivations. Women experienced particular forms of suffering as a result of apartheid. The system of migrant labor, for example, involved transporting working-age men to mines and industrial areas; women and other family members were left in rural areas to survive without the men and to support these men during their annual visits home.

Women were thus faced with a greater burden of responsibility for the maintenance of the home and family, or were forced into urban areas to support themselves and their children. In these areas, they had to seek employment as domestic workers and live in white people’s homes, usually without their husbands and children.5

The general repression prevalent during apartheid included injuring and killing protestors, torturing and murdering activists, detention without trial, imprisonment, harassment, and many other variations of abuse. As agents, women were actively engaged in the struggle against apartheid, though in smaller numbers than men and with their protests often taking different forms. Women also went into exile to join the liberation movements and their armies, were active in the underground movement within the country, and joined protest actions and other forms of organized opposition to the apartheid government. Both rural and urban women were affected by their participation in the political conflict, although sometimes in different ways.

Rural women faced the wrath of Bantustan police in protests over removals of people, land and other issues. Urban women were more likely to be engaged in street protests and struggles with police and soldiers. In the 1980s and early 1990s, women were sometimes abducted by rival factions in townships around Johannesburg and in the province of KwaZulu-Natal. Women activists and freedom fighters met with brutal treatment that was both similar to and different from that encountered by men.

The gender-specific forms of torture used by the security forces included:
 - assault and electric shocks on pregnant women;
 - inadequate medical care leading to miscarriages; rape;
 - flooding of fallopian tubes with water, sometimes leading to infertility; and
 - many forms of psychological torture.

One of the women giving evidence to the TRC described the response of white policemen to her attempts to fight back: “When men stood ground against the physical abuse there was a sense of respect . . . . But when a woman refused to bow down ...then that unleashed the wrath of the torturers, because in their own discourse a woman, a black ‘meid,’ a ‘kaffirmeid’ (kaffir servant girl), had no right to have the strength to withstand their torture.”6

Extreme repression, however, was not just targeted at experienced opponents of the government. Police and soldiers would detain and harass school children, elderly women, and others, for example, because they happened to be present at a protest or at the home of an activist. At the height of the 1980s states of emergency, repressive tactics were sometimes used indiscriminately to terrorize the public.7 During violent ethnic and regional conflicts fueled by the state women were abducted and impregnated. When South Africa invaded some of its neighboring countries, there were numerous reports of the rape of women in the local population by soldiers.8

There was also some evidence of rape, sexual harassment, and abuse of women in the ANC camps (and within the underground movement) during the conflict.9 Moreover, the liberation organizations set off bombs, robbed banks, and engaged in similar actions that caught ordinary people, including women, in the crossfire.10

Women also experienced the conflict as dependents and family members of the victims. Mothers and wives had to endure intense anxiety, and live with uncertainty about the whereabouts or treatment of their husbands and sons. They often lost breadwinners and status within their communities. There were severe effects on children and family life, compounded by poverty and apartheid structures. The TRC’s final report acknowledges that “the social pressures caused by apartheid and repression associated with it have resulted in changes to the family structure in South Africa.

Some families have been unable to withstand the pressure, whilst others have harnessed support and nurture from extended family networks to ensure their survival.”11 Women joined parents’ groups and other support groups when detentions became rife and this sometimes led to their further harassment.

Women’s participation in the transition and TRC process

Once there was an agreement between the National Party and the ANC to hold democratic elections, the negotiations around the content of the new constitution were opened up to a wider range of groups.12 It was at this point (during 1992 and 1993) that women’s organizations became very active.13 A progressive constitution enacted a far-reaching right to equality and established an independent commission on gender equality. Large numbers of women were elected to parliament. Women within political parties, women’s organizations, and women in the new government and parliament were very involved in drafting new laws and policies to address gender inequalities. There was now a very gender-sensitive legal and rights framework in South Africa.14

However, the TRC — the transitional justice mechanism that operated between 1995 and 1998 — was not seen by women’s organizations as a priority in the years following the first democratic elections. Instead, women focused their energies on the task of building a new society. It is possible that the TRC was seen as a somewhat backward-looking project, when so much had to be done around reconstruction and social transformation. Women’s organizations and activists were not central to the creation of the TRC or the drafting of the legislation that governed it. As a result, a “gender-neutral” law was drawn up in which the “male norm” was the “unacknowledged standard.”15

The mandate of the TRC, very broadly, was to investigate past abuses of human rights and to restore the dignity of victims. From a gender perspective, the wording of the mandate failed to spell out the gendered differences in the experience of the conflict and the possible gendered differences in the needs of victims (in relating their violations and in reparations measures).

Women only actively lobbied the TRC to address gender issues in 1996, once it had already begun its work. The women who were most vocal on issues of gender were members of existing human rights, peace, and victim support NGOs.16 In December 1995, just before the TRC took up its mandate, a human rights organization, Lawyers for Human Rights, held a public meeting titled “Does Truth Have a Gender?” The following year, the Centre for Applied Legal Studies, a university-based human rights organization, held a workshop on gender and the TRC. A submission was prepared on this topic and presented to the TRC a few months later.17 The submission made a number of recommendations on gender-sensitive mechanisms for human rights violations hearings, approaches to amnesty hearings, gender and reparations, and the final report of the TRC.18

Some of these suggestions were taken up, notably the holding of women’s hearings, but many of the ideas were not followed. The submission had argued that the final report should offer an integrated history and analysis of the conflict from a gender perspective. This was not done, and as a result, most of the gender issues that emerged during the TRC process were covered only in a short chapter on the women’s special hearings. Quite early on, and in response to the submission and the calls by other organizations, the TRC convened a number of workshops on the issue of gender and invited various women’s organizations to attend.19 These workshops played some role in informing the TRC’s work.

Women participated in the TRC process in large numbers by giving evidence of human rights violations in statements to the commission; in fact, 54.8% of the participants were women. Of the participants who came to speak about their own experiences, the majority were men (56.1%), but a large number of women also did.20 The TRC’s official finding on women21 reads as follows:

Many of the statements made to the Commission by women detail the violations inflicted on others — children, husbands, siblings and parents — rather than what they themselves suffered. Undoubtedly the violation of family members had significant consequences for women. However, women too suffered direct gross violations of human rights, many of which were gender specific in their exploitative and humiliating nature. The commission thus finds that:
·  The state was responsible for the severe ill-treatment of women in custody in
   the form of harassment and the deliberate withholding of medical attention, food
   and water.
·  Women were abused by the security forces in ways which specifically exploited
   their vulnerabilities as women, for example rape or threats of rape and other
   forms of sexual abuse, threats against family and children, removal of children
   from their care, false stories about illness and/or death of family members and
   children and humiliation and abuse around biological functions such as
   menstruation and childbirth. 
·  Women in exile, particularly those in camps, were subjected to various forms of
   sexual abuse and harassment, including rape.

The TRC, in its final report, notes that many women who had suffered terribly underplayed their own experiences when talking about what had happened to men.22 It seems likely that many women were unwilling to come to the TRC to talk about their experiences for a range of reasons. One of the most important of these was the difficulty of talking about sexual abuse. The TRC referred to incidences of rape in 140 cases but it is highly likely that this reflects only a small number of the rapes that occurred in the period of the TRC’s mandate.

Other reasons for women’s silence included their unwillingness to betray comrades, their inability to face the pain of their experiences, their wish to move on, and, for some of the prominent women who were assuming important positions in the transitional society, fear that their stories would bring shame to them.23

Women tended to downplay or omit their own harsh treatment at the hands of the authorities when talking of their relatives. Women’s groups encouraged the TRC to probe these issues and ensure that women’s own experiences were validated even where the evidence was not necessary for the formal purpose of defining them as victims. Gender activists called on the TRC to encourage the media to give prominence to women’s own suffering. The TRC responded to this suggestion and tried in some instances to encourage women to talk about their own suffering when discussing what had happened to their loved ones. Some of the women were themselves victims according to the TRC’s definition, since they were detained, beaten, and so on.

There is no official evaluation of women’s overall participation in the TRC process. As mentioned, there is a chapter in the final report on the women’s hearings that discusses the role of outside organizations in raising gender issues to the TRC. The final report is, in the end, an inadequate reflection of women’s experiences under apartheid.24 This was primarily a result of the lack of gender expertise in the research and IT team that would have enabled it to provide a “disaggregated and targeted analysis.”25 However, despite this, the TRC process led to the articulation, development, and implementation of a reparations mechanism in which women participated in a number of different ways.

Some women were employed as part of the TRC, others were members of organizations that interacted with the TRC process, and still others came to testify as part of the TRC and further informed its work. This participation and the impact of efforts to engender reparations in South Africa are discussed in the following sections.

Women’s involvement in the articulation of reparations : a limited impact

The discussion of reparations mechanisms in South Africa was located largely within the TRC. The Reparation and Rehabilitation Committee of the TRC was tasked with making recommendations to the president on a reparations policy. The committee’s recommendations included urgent interim reparations, for victims who might need urgent medical treatment or other assistance, and final reparations. The president was required to establish a President’s Fund and an administrative agency in government to disburse monies to victims.26 Seven of the 17 TRC commissioners were women, all of whom had good human rights track records and had exhibited independence and commitment to reconciliation.

Not all of them, however, had been directly involved in women’s organizations, nor would they all have identified themselves as feminists. Some demonstrated gender sensitivity in early statements on the issue of gender and the TRC. Others were less aware of and less committed to gender issues during their work with the commission. Many of the commission staff were also women. The chairperson of the Reparation and Rehabilitation Committee, Hlengiwe Mkhize, was a woman, as was the vice-chairperson, Wendy Orr. In fact, four of the five members of this committee were women. The President’s Fund, which administers reparation payments, was headed by a man, but he worked with Hlengiwe Mkhize, who has since been appointed by the government to deal with outstanding TRC issues. In interviews, Orr said that women were probably given the reparations portfolios because it was seen as “touchy-feely women’s stuff.”

Initially, the TRC gave no thought to gender, but certain women commissioners saw gender justice as important and were able to redirect some of the commission’s approaches and policies. When the hearings began and many women came to give evidence, some of their issues emerged more clearly. The involvement of women’s activists in lobbying the TRC helped the women commissioners put gender issues on the commission’s overall agenda.27 Not all women in the TRC supported the attempts to put gender issues in the foreground, however, and some of the seemingly progressive men were quite dismissive of the effort. Women had to “bargain” for gender issues and felt that they were “humored.”28

It seems clear that gender justice as a guiding principle should have been written into the TRC legislation from the outset. This would have strengthened the hand of gender advocates inside and outside of the commission.

Women also participated in the reparations discussion as members of various organizations and as individuals. Women’s organizations themselves, however, were not central to the TRC process. It was mainly human rights organizations, individual women activists, and victims support groups (made up of a majority of women) that were involved with the TRC and reparations, and only once it had begun to operate. This happened probably for two reasons:
 - first, the TRC was not seen as a priority by the women’s movement at the time
   because the focus of most work was on developing gender policy and structures
   in the government; and
 - second, as discussed above, there had been a certain degree of demobilization
   of women’s (and other civil society) organizations during the transition.

The Reparations and Rehabilitation Committee did consult quite widely through a number of workshops and meetings. Women’s organizations dealing with violence against women, women within human rights organizations and trade unions and gender activists attended some of these meetings. Although some of these organizations’ staff and members were sensitive to the gender issues, for the most part their recommendations did not focus on gender specifically. Moreover, there was an urban bias in the work of the TRC: its offices were located in urban centers, which meant that rural women had less opportunity than urban women to contribute to this process.29

Women have been quite central to victims support groups in particular. For example, most of the members (70%) of Khulumani Support Group,30 the largest victims support group, are women. And while this has not led to a particular emphasis on gender issues in the group’s work,31 it has given many women the space to speak and an opportunity to have their voices heard. One reason behind the role played by women in victims groups may be that women in need often group together to assist each other.

In South Africa, women’s savings clubs, burial societies, and church and community groups are very widespread. Although involvement of large numbers of women has been important in raising issues around the need for family support and social services, women have tended to articulate their needs rather than their strategic interests as a social group facing deep-rooted discrimination. At the same time, children and youth organizations were not central to the struggle for reparations, and the evidence given at the TRC’s children and youth hearings did not focus in any depth on gender issues.32

Women’s participation led to a number of examples of gender-sensitive interventions in the reparations discussion, albeit with limited impact. The Centre for the Study of Violence and Reconciliation (CSVR) — an NGO working on transitional justice — for example, asked parliament, when it was considering the TRC reparation recommendations, to ensure that women be recognized in all symbolic reparations projects since women’s “compounded burdens” had been marginalized by the TRC.33 The CSVR suggested that research be funded on the impact of the struggle on women and that symbolic reparations highlight the direct role of women in the struggle through the renaming of public spaces. This was a rare symbolic effort in a process that revolved largely around financial reparations.

In another example, a small group of academics and NGO activists met regularly during 1996 and 1997 to discuss gender issues in the TRC’s work and to develop strategic responses. These included submissions on reparations made to the TRC.34 The recommendations took into account the fact that it might take many years for some women to feel ready to speak of their experiences and that mechanisms for future statement making should be provided. The TRC’s reparation proposals, however, did not reflect these ideas. Another gender-specific intervention on reparations policy also came from CSVR, which made submissions on gender to the TRC in 1996.

These submissions made the following suggestions:
1·  The reparations policy must be carefully considered with due regard to a gendered understanding of past abuses and the impact of such abuses. Women must be encouraged to come forward and must be asked about their needs. The policy must be forward looking in its approach and must provide for the building of a human rights culture in which all forms of discrimination and abuses against women are unacceptable. Women’s organizations and other NGOs should be involved in the formulation of the reparations policy.
2·  If some of the reparations are quantified according to the approach used in civil damages claims, research must be conducted into the way in which gender bias tilts this standard away from rewarding women fully for their losses. 
3·  The TRC should assist women by directing them towards existing programs and resources in communities aimed at providing assistance of all kinds, e.g., pensions, housing, education and counseling. 
4·         A memorial list of the women who were killed and the circumstances of these deaths should be considered. This could be just one of the aspects of a process of preserving collective memory of past abuses. 
5·         A Peace Institute should be established, which would house a museum and research facilities. It should ensure that gender is an integrated focus of all projects undertaken there.35

As with the other gender and reparations recommendations, however, these appear to have had a limited impact on the ultimate approach taken by the TRC and the government, which remained largely “ungendered.”

Victims who gave evidence of violations to the TRC were asked how they would like the TRC to assist them.36 Women were able to give some suggestions, although many focused more on the harms done to others, including close family relatives, than to themselves. Neither women nor men victims generally accepted the argument that the government was responsible for rebuilding the whole society and therefore could not privilege victims. Women have not, however, linked their arguments for reparations to their unequal position as women in society. They have tended to blame apartheid for their misfortune rather than unequal gender power relations and social structures. The women’s movement (inasmuch as there is one in South Africa) has not drawn sufficient links between gender justice and the need to heal the harms of the past.

Many women asked for psychological support37 and for information about their loved ones who had disappeared.38 In interviews with a largely female support group, most members explained that they needed financial support because they had lost a breadwinner (son or husband) and because they were responsible, as older women, for the support of many dependents. One of the interviewees explained that her two daughters had died of AIDS, leaving her to care for all her grandchildren (a common situation in South Africa today).

All of the traditional reasons for claiming reparation (material compensation, acknowledgment of suffering, information about the deaths of family members, burials, support services such as counseling, education, and houses) lead women to become involved in the organizations that lobbied for reparations. Many of these needs are common to both men and women. However, women often have greater responsibilities for dependent family members and therefore focus on the benefits that will help them to meet these responsibilities.39

In the end, the TRC did not differentiate statistically between men and women in its requests for different types of reparations. Its final report noted that 38% of victims requested financial assistance to improve the quality of their lives and 90% asked for services such as education, medical care, and housing.41 The chapter on the women’s hearings refers to the evidence of a woman who was disabled in an attack by the police. She asked for help with her eight-year-old child, as she was physically unable to do many chores.41 Unfortunately, the chapter does not cover any of the other requests for assistance nor does it discuss recommendations for reparations.

The TRC handed over its report in 1998, but the president tabled it in parliament in 2003. During those years, victim support groups and NGOs became frustrated at the lack of response by the government. An NGO working group on reparations was set up to pressure the government. It prepared statements, tried to meet with the government (with little success), held workshops and tried to lobby key actors, made submissions to parliament, and developed a media strategy. The relationship between the government and these organizations became very strained. One interviewee suggested that it was because victims support groups were largely women-run that the government was able to avoid dealing with the issue for so long.42

Engendering reparations :
problematic definitions of violations, benefits, and beneficiaries
Definitions of the violations that trigger reparations

The way in which the TRC process unfolded meant that the human rights violations hearings occurred prior to the development of a reparations policy. Reparations were intended for those who had been named victims by the Human Rights Violation Committee or the Amnesty Committee. The Promotion of National Unity and Reconciliation Act (Act 34 of 1995) defined “victims deserving of reparations” in the following way:

a. Persons who, individually or together with one or more persons, suffered harm in the form of physical or mental injury, emotional suffering, pecuniary loss or a substantial impairment of human rights 
        i.  as a result of a gross violation of human rights;
        ii. as a result of an act associated with a political objective for
           which amnesty has been granted;
b.       Persons who, individually or together with one or more persons, suffered harm in the form of physical or mental injury, emotional suffering, pecuniary loss or a substantial impairment of human rights, as a result of such person intervening to assist persons contemplated in paragraph (a) who were in distress or to prevent victimization of such persons; and
c.       Such relatives or dependents of victims as may be prescribed.43

Thus the notion of victim for the purposes of reparations was based on “gross violations of human rights” or an “associated act” emanating from conflicts of the past and committed by a person acting with a political motive. “Gross violations of human rights” were then defined as “the killing, abduction, torture or severe ill-treatment of any person.”44 The act did not define “harms” or “crimes deserving reparation” beyond this definition of “gross violations of human rights,” which was used both in relation to amnesty and for the purpose of identifying victims to be repaired.

Crimes against children were included as violations deserving of reparations. These include all the same violations adults suffered, such as murder, abduction, and torture, as well as many of the sexual violations, such as rape and sexual abuse, that have been interpreted as falling under the “other forms of severe ill-treatment.” Gender activists were concerned with a number of aspects of the definition of gross violation of human rights.

Apartheid’s systemic crimes and the impact on families

The first issue concerned the emphasis in the definition on individual crimes of political violence, which meant that the systemic crimes committed in the name of apartheid would not be covered by the TRC.45 Thus, forced removals of whole communities from their homes, closing down of schools and the imposition of purposefully inferior education, pass arrests and many other violations of human dignity, equality, and freedom were not seen as “gross violations of human rights.” That clearly they were such violations was an observation made not by women’s groups alone, but by other human rights organizations as well.

It is unclear why the act was limited in this way, though one can speculate that for political reasons the former government did not want apartheid on trial as a system. Rather, it wanted to individualize the crimes that occurred in order to avoid assuming collective responsibility for them. There were probably also reasons of practicality for limiting the mandate, as well as moral presumptions about the relative severity of crimes of repression versus crimes of oppression. The TRC debated the issue of the structural violations of apartheid, but ultimately decided that it was bound by the act that governed its work to remain within a limited mandate.

It did, however, recognize that evidence of apartheid violations should inform an understanding of the broader context within which the specifically defined gross violations took place. This context was related in the final report of the TRC, which acknowledged the exclusion of people from recognition and access to reparations and that “many people remain aggrieved.”46

A second problem with the definition of gross violations of human rights was its failure to address some of the issues faced by women as family members and by families in general. Many women who suffered fear and anxiety, when, for example, the police arrived looking for their husbands or sons, were not covered by the TRC’s definition of victim. Although the notion of “other forms of severe ill-treatment” was interpreted from a gender perspective to include sexual violence, other forms of violence related to the gendered family structure should also have been included.

The ensuing harms of loss of fertility, pregnancy following rape, widowhood, mutilation, loss of livelihood and others, while acknowledged by the TRC, were not specifically taken into account in the design of reparations.47 These harms had severe consequences for South African women and those in neighboring countries. Abortion was not legal or available at the time. Loss of fertility, mutilation of genitals, and rape all have severe cultural implications for women in South Africa, as does widowhood.48

Financial reparations were seen as assisting people who had lost a livelihood or a breadwinner and urgent medical treatment was part of the interim measures provided, but generally reparations recommendations were not detailed responses to these types of harms.

However, despite these particular problems in the TRC’s definitions, gender activists gave the systemic violations of apartheid a gendered meaning. The control of movement and the loss of livelihoods under apartheid led to the breakdown of families, often leaving the burden of care on mothers and grandmothers.49 Apartheid intervened overtly and insidiously in the intimate relationships between men and women through laws that controlled movement in the urban areas, the Prohibition of Mixed Marriages Act,50 and others. Customary law, as codified by the government, limited the capacity of African women to contract, own property, and enter into commercial transactions.

Direct/indirect victims

Another issue regarding the definition of gross human rights violations arose early on when women started coming to the hearings to talk about their sons, husbands, and other male relatives. Gender activists argued that the act governing the TRC correctly defined victims as including relatives or dependents of victims.51 This meant that these women should be seen as primary and not secondary victims, since their suffering was a direct result of the gross violation. The mothers of children who were tortured or killed experienced psychological pain and harm that needed to be repaired and compensated.

There was also economic loss suffered by the families of those killed, abducted, detained, tortured, and so on. Breadwinners were lost, families had to care for disabled members and there was the “cultural” loss of children who might have supported the family and women having to assume the inferior status of widowhood.52

The act did not distinguish between primary and secondary victims. In its final report, the TRC accepted that the distinction between victims and relatives/dependents should not be based on the notion that relatives/dependents suffered less;53 and the TRC accommodated this in its approach to the victims who presented themselves to the Human Rights Violations Committee. However, the Reparation and Rehabilitation Committee did use a distinction based on such a notion: secondary victims were defined as relatives or dependents of primary victims.54 Because of this, relatives/dependents were entitled to grants only when and if the “primary” victim had died.

Thus, the system does not recognize the harms suffered independently by women whose sons and husbands were imprisoned, tortured, and so on, and who suffered loss of income and status, pain and stress.

Gendered nature of harm/crimes

Finally, there was the issue of the gendered nature of the crimes committed under apartheid. When women were directly affected by political crimes, gender activists stressed the need to unpack the gendered nature of the harms suffered. While the TRC defined various acts as constituting torture, for example, it did not discuss the gender-specific differences in the way these acts were experienced, nor did it reflect these different experiences in the proposals for the provision of reparations benefits. Gender activists pointed to the variety of sexual and biological methods of torture used in detention and prison. The point was made that even when torture took the same form for men and women, it was experienced and should be understood in a gendered way.

Gender activists also noted the particular forms of violation that women suffered and asked that these be included in the definition of harms/crimes. The TRC did include many such violations in the list of definitions of torture and severe ill-treatment. Under torture, the list includes:
·         Assault to genitals/breasts,
·         Beating if the victim is pregnant or miscarries,
·         Electric shocks to genitals/breasts,
·         Disinformation (e.g., telling a person that a loved one is dead),
·         Genital mutilation, and
·         Sexual torture including rape, sexual abuse, threats of rape, touching,
          nakedness, sexual comments or insults, sexual incitement and deprivation
          of sanitary facilities for menstruation.55

These acts were considered to be torture in all circumstances under which they occurred, not just in detention or prison. All crimes were treated as equivalent for the purpose of defining victims and for reparations. The fact that some crimes such as rape were listed as “severe ill-treatment” and torture reflects a positive understanding by the TRC of the nature of sexual violence as complex and wide ranging. It would have been politically valuable if rape or sexual violence had been separately listed as one of the “gross violations.”

However, the TRC’s inclusion of a range of forms of sexual violence within the definition meant that such harms could not be easily overlooked within the TRC process. The inclusion of the term “severe ill-treatment” in the definition was a useful catchall as it allowed the commission to carefully consider a number of harms that might not have been conceptualized by the drafters of the TRC legislation at the outset. Under severe ill-treatment, the list includes:
·         Beating of genitals/breasts,
·         Genital mutilation,
·         All forms of sexual attack (including rape and many other forms).

The TRC report, in its Code Frame for Gross Violations of Human Rights, stated that in addition to the four types of gross violations (killing, abduction, torture, and severe ill-treatment), there was a fifth category of associated violations. These were not defined as gross violations (for the purpose of reparations), but the category was “important for the understanding it provides of the context in which violations could and did take place.”56

Associated violations included, among others:
·         Sexual harassment,
·         Rape,
·         Touching,
·         Nakedness,
·         Sexual comments or insults,
·         Sexual incitement,
·         Deprivation of sanitary facilities for menstruation.

The TRC received 446 statements that were coded as sexual abuse, of which 40% of those that specified the sex of the victim were women. Rape, which was always categorized by the TRC as severe ill-treatment, was mentioned in 140 cases. It seems likely, based on the small number of victims who presented themselves in these categories, that many more did not come forward to the TRC to talk of their experiences.

Defining benefits and beneficiaries of reparations

Gender-related problems carried over from the definition of crimes and harms to the determination of reparations benefits and beneficiaries. The TRC report came up with a number of recommendations for the government on reparations, including: ·         Delivery of urgent interim reparations to victims in urgent need in order to
          enable them to access services;
·         Individual reparation grants;
·         Symbolic reparations including assistance with exhumations, burials,
          memorials, etc.;
·         Community rehabilitation to rebuild communities, provide health services,
          education, housing, etc.;
·         Institutional reform to ensure that human rights violations do not happen in
          the future.57

These recommendations were based on the following goals:
 1. focus on development;
 2. be simple and efficient;
 3. be culturally appropriate;
 4. be based on the community; and
 5. promote capacity development, as well as healing and reconciliation.

These principles, although not explicitly gendered, could have been used to ensure that gender was taken into account in the recommendations. However, a reading of the draft and final recommendations on reparations reveals little evidence of gender awareness.

Financial reparations

In order to receive financial reparations, a person had to be found to be a victim of a gross violation of human rights. All victims received the same amounts of interim and final reparations regardless of the particular violation they suffered; victims of severe ill-treatment received the same as victims of abduction, killing, and torture. There was no distinction made on the basis of the type of harm suffered or the consequences for the person58 — thus, the grants were provided on a gender-neutral basis. Obviously, this meant that the particular needs of women were not taken into account when determining the amount of reparations.

A reparations policy that allows for different amounts to be paid for different harms could, for instance, provide a greater amount to a woman who has lost a breadwinner than to a person who has been tortured but suffered no long-term financial disadvantage.

Urgent Interim Reparations

The TRC defined urgent interim reparations as “the delivery of reparative measures to victims who are in urgent” medical, emotional, educational, material, and/or symbolic need. The TRC recommended that all applicants be considered for this grant while awaiting final reparations. Urgency would be determined according to a detailed set of criteria.59 Since a large majority of victims were paid these grants, it seems likely that urgency was understood in broad terms, and not limited to the needs of men or women in particular. The urgent interim grants were intended to provide financial assistance to victims to help them access the services they needed. Victims were also provided with referrals to appropriate government services such as social welfare counseling, social assistance grants, and health care services.

The cash sum ranged from US$250 to US$713, based on the number of dependents, with a maximum of five dependents counted for each victim. The urgent interim reparations were provided directly to the victim; in a case where the victim was deceased, the reparations were given to a relative/dependent who became the beneficiary.

The relative/dependent was defined as any one of the following
(this was not regarded as being in any particular order):
·         A parent of the victim (or someone who acted/acts in place of a parent); or ·         A husband, wife, or partner of the victim (according to customary, common,
          religious or indigenous law); or
·         A child of the victim (either in or out of wedlock and/or adopted); or
·         Someone the victim has/had a customary and/or legal duty to support.60

The relative/dependent was also asked to list other relatives/dependents of the victim. Although there was only one beneficiary per household, when another relative/dependent lived in a separate household, that person was also provided with interim reparations.61

The first payments of urgent interim reparations were made in July 1998. By the time the process was completed in 2003, 14,000 victims (more than three quarters of all victims) had been paid. Most victims felt that the amount paid was negligible. For those with serious material needs, the urgent interim reparations were found to be least helpful symbolically, and were disappointing. Conflicts over the monies received were reported within families.62 As discussed below, men tend to use money more individually, while women tend to use it for the benefit of others. When men receive money, women are unlikely to have much say over how it is spent because of patriarchal and cultural assumptions.

Final Reparations

The TRC proposed that a sum of approximately US$2,713 per year be paid to victims for six years (in installments every six months). According to the TRC, the amount should vary according to location (urban or rural) and according to the number of dependents. Rural people would get a greater amount on the assumption that accessing services in rural areas is 30% more expensive than in urban areas. This grant would serve to acknowledge suffering, provide for access to services and pay for some of the victim’s living costs.

In April 2003, the government agreed to a one-time payment of US$3,750 to each victim, a considerably smaller amount than that recommended. The government did not indicate on what basis this amount was calculated. The president simply said that the grants, together with community reparations and other government services, would acknowledge the suffering of those individuals and offer some relief.63 The amount would not vary according to location, nor would it increase according to numbers of dependents. It is unclear why the government decided on this approach, although there was probably a need to simplify reparations payments for administrative purposes.

However, this process does not recognize that rural residents —women in particular —are generally poorer. It also fails to recognize the added needs of individuals with several dependents, compared to those with no dependents, which will likely have a negative impact on women since they tend to take greater responsibility for looking after others in South African society. Beyond this, there are no measures specifically intended to address the harms suffered by women as a category. In particular, women who lost breadwinners, and face a lifetime of impoverishment, are not compensated in any greater sum than those victims who suffered no material disadvantage.

The disjuncture between the TRC recommendations and the government’s ultimate decision angered and disappointed many. The lengthy delay in providing the final reparations grants also compounded frustrations. Furthermore, the failure to provide distinct state services or even to deliver promised existing state services for many has angered some victims and caused grievances. The philosophical debates about reparations have informed this issue. The president implied in his speech to parliament that there was some doubt in his mind about whether people should be rewarded for their sacrifices.64 Members of the government have also implied that people did not join the struggle for reward, that reparations should not punish the new democratic government, that all people who suffered under apartheid should be assisted with government services, and that privileging those identified as victims creates a hierarchy of suffering.65

Unlike the urgent interim reparations, the final reparations only provided one grant per victim, the size of which was the same regardless of the number of households s/he supported or the number of her/his dependents. As in the case of urgent interim reparations, however, the amount was provided directly to the victim, unless the victim was deceased, in which case it was provided to the relative/dependent who was identified for the purposes of interim reparations,66 and, if that person was deceased, to the spouse or spouses in equal shares.67 If there were no spouses, the money would go to the children in equal shares, the parents or other relatives of the victim.

The identified victim was defined as the person found by the TRC to be a victim of human rights violations. Women who applied to the TRC to report the death of a husband or son were designated as relatives and dependents of victims and were entitled to reparations because the victim had died.

This approach to family seemed to assist women, as spouses were given first preference. In terms of its regulations,68 the President’s Fund had the discretion to substitute the person who had received urgent interim reparations with a relative/dependent higher up the hierarchy. For example, even if the son of a man killed had received interim reparations, the fund might pay the wife the final reparations. Where children were paid, practically speaking, the money went to the adult who cared for them, usually a woman. This was also a positive step for reparations for women.

The regulations define “spouse” as “the person married to an identified victim under any law, custom, or belief.” This allows the fund to take account of religious and customary marriages even where these are not legally recognized. This is important in South Africa, where there is a wide plurality of marital forms. The term “spouse” in South Africa is somewhat complicated in the law, since it applies to those married in terms of civil law, customary law, and certain religious laws. Domestic partners and same sex partners, however, are not yet included in this term; the legislation therefore seems to be framed around a conception of family that does not fully reflect the lived reality in the country. Where a direct victim left a wife and domestic partner (a common situation in South Africa), the latter woman would not benefit from reparations. Women in domestic partnerships in South Africa are generally discriminated against legally and socially, and are financially vulnerable.69 On the other hand, there was some indication from the President’s Fund that “girlfriends” were in practice accommodated.70

Despite the TRC’s recommendations for reparations in installments, both the urgent interim reparations and final reparations grants were made in onetime payments. They were provided without means testing and were not specific to the needs of victims; they were only conditional on the TRC’s identification of the victims. The single payment, being a small amount, was used up very quickly by most victims, and they did not have the effect of providing for the maintenance of families.

Women victims bemoaned this fact as they were struggling to meet the ongoing needs of their households. In an interview with representatives of the victims group Khulumani (mainly women), it was agreed that while money could not bring back a loved one, it would help with daily survival.71 They explained that the loss of a husband or child created a gap in their expected support system, and this gap had not been closed by the small monetary reparations. One interviewee said she had spent the money on a burial and on erecting a security wall around her house. As mentioned above, another woman said she had used the money to support the children of her daughters who had died of AIDS. These two examples point to the pressing issues facing families in South African society today.

Reparations have assisted women when they have been able to access the money — by acknowledging their particular suffering, and when they have been able to control the money — by giving them some status. It has also allowed them to use the money for the support of households, since poor women are generally responsible (and developmental) spenders. The problem, however, is that the small size of the individual reparations has not achieved much for the families of victims. Interviewees described the money as “peanuts” and “nothing,” and said they had spent it all on debts.72

Their ongoing worries were for information, exhumations, tombstones and issues related to the burials of their loved ones, as this process had not been concluded for some of them. They were also concerned for fellow community members who had not managed to get to the TRC and could not benefit from it. In a study looking at how victims have spent their reparations grants and what they still need, the common desires were for housing, jobs, health care, education for children and counseling services.73 The study was not gender-differentiated, however.

Some women have not received the reparations that they were entitled to for two reasons. First, the designation of the person who went to the TRC (e.g., the mother of a man killed) as the main relative/dependent beneficiary, rather than some other relative/dependent (e.g., his wife), has caused conflict in some families. This difficult situation is compounded by the poverty faced by most of the victims and their families — here, money introduces conflict between family members.74 There are no specific mechanisms in the regulations for dealing with conflict between family members, including tension between a mother and a child’s interests. Second, financial reparations have not assisted those women who felt unable to come forward and talk about their experiences of sexual violence. Other forms of reparations, however, are also unlikely to help them since they do not specifically address the needs of victims of gender-based violence.

Symbolic reparations

The TRC report saw symbolic reparations as measures to restore the dignity of victims and to facilitate the communal process of commemoration. Some of the suggested individual measures included issuing death certificates, exhumations, reburials and ceremonies, and providing headstones and tombstones. The suggested community interventions included renaming streets and facilities, building memorials/monuments, and having culturally appropriate ceremonies. The suggested national interventions included renaming public facilities, building monuments and memorials, and establishing a day of remembrance. The government accepted these recommendations, which contained no specific gender focus.

There have been certain symbolic reparations measures for women and some general symbolic acknowledgments of women’s role in the struggle (e.g., the restoration of the women’s jail in Johannesburg, which now houses constitutionally created independent bodies such as the Commission for Gender Equality; the renaming of streets and towns after famous women, etc.). However, a lot more could be done in this regard.75

Symbolic reparations work is being undertaken by the Freedom Park Trust, an independent agency led by writer Wally Serote, after being handed over by the Department of Arts and Culture. According to one victims support group, there has been very little community participation in the symbolic reparation process and women have had even less voice. This is the case in rural areas, for example, where male chiefs are considered (incorrectly) to speak on behalf of the community as a whole. Hlengiwe Mkhize, a former TRC commissioner who attended workshops of the Freedom Park trust, felt, however, that the trust was doing good work and that it was informed by the TRC’s recommendations and not gender insensitive.

For many women, as wives and parents, proper burials, information about their loved ones’ deaths, and the clearing of their names were central demands relating to closure, ritual, and status. For many, this has already occurred through the TRC or with the help of individual reparations grants. For others, however, this has not yet happened. The National Prosecuting Authority (NPA) has been tasked with following up on cases of disappearances, prosecutions, and exhumations. One person in the government is working on disappearances research.76 Prosecutions are a somewhat fraught issue politically, but investigations are going ahead in certain cases.

Some exhumations have occurred, but the main work is still to research possible cases. Yasmin Sooka, a former TRC commissioner, pointed out that despite exhumations in certain cases, the victims were unlikely to find out to whom the bones belonged since the costs of sending them to the United States for DNA testing were too high.77 Hlengiwe Mkhize noted that the NPA has capacity problems. Moreover, the main evidence guiding these issues comes from perpetrators who are often unreliable witnesses.

Community reparations

The TRC report also recommended community rehabilitation measures at the local and national levels to address the systematic abuse experienced as a result of the conflict. The report recommended that general service rollout by the government should be informed by the need for rehabilitation and reconciliation. The suggested areas included demilitarization, dislocation and displacement, local treatment centers, rehabilitation for perpetrators and their families, mental health services, establishment of survivor support groups, skills training, specialized trauma counseling services, family-based therapy, transformation of education, and provision of housing for displaced communities or where property was destroyed. Although accepted by the government, these recommendations make no specific reference to the particular needs of women.

Obviously, if the recommendations are implemented with gender sensitivity, these services may assist women significantly.

The Department of Justice recently contracted Hlengiwe Mkhize to assist with the implementation of reparations, including the social benefits aspects of the program.78 The other departments involved in this issue include health, education, and housing, but little has been done by them in specific response to the position of victims. The government’s approach has been that the social programs and benefits are necessary to uplift millions of South Africans, and are not just for TRC-designated victims.

However, according to Mkhize, the setting up of trauma centers, the introduction of community health workers and rehabilitation facilities, and many other such services were ideas put forward by the TRC that the government has introduced or is committed to introducing as part of the reparations process. Victims and organizations working on transitional justice issues are less convinced that anything has been or will be done.79

In interviews, victims felt strongly that they should have been “put at the front of the queue” for government services such as housing. For women who experienced direct violations, counseling was a common request. The material claims were often related to the caring role that women play, and included financial support for their families, housing, and education for their children. In South Africa, older women are often responsible for many dependents from a number of generations, since they receive state pensions. In a research study looking at the impact of reparations on victims, it was found that the government had done little to help victims or to realize the other aspects of the reparations package beyond monetary payments.80 Victims’ health, housing, and educational and psychological needs had not been adequately met.

Institutional reforms

Finally, the TRC report recommended institutional reforms for the government, the media, the judiciary, and a range of other sectors to prevent the recurrence of human rights abuses in the future.81 These included a detailed set of recommendations regarding the promotion of a human rights culture, the need to address poverty and crime, accountability by the state, and improvements in the health sector, prisons, the justice system, policing, and many others. Again, apart from brief mention of the needs of women as a disadvantaged group and incidental reference to the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),82 the report is curiously gender-blind.

The government accepted these recommendations, and institutional transformation programs are underway in all departments. There has been training in human rights and democracy in many areas of the government, including the police.83 Although some would argue that these would have been undertaken in any event because they are constitutionally mandated, Mkhize says that the TRC’s recommendations strongly influenced government policy, and, while many might be disappointed with the government’s apparent failure to implement the TRC recommendations, they are in fact being followed in many areas. Mkhize also notes that while the recommendations that appeared in the final report might not seem to take gender into account, the TRC did submit reports (including the evidence from women to the TRC) and recommendations (including the NGO submission on gender and the TRC) to all government departments during the TRC’s period of operation.

Some gender units in the government wrote back to say they were just being set up and could not do anything yet; however, Mkhize believes that other government departments incorporated the TRC issues into their programs and policies.84

Janine Rauch, in a study on the transformation of the police in South Africa and the TRC, has concluded that the “TRC had little impact on the process of police reform, which pre-dated the TRC and ran parallel to it. Instead it was the policies and actions of the new democratic government which directed the massive changes in policing in South Africa since 1994.”85 It seems possible that this is the case in most other areas of government as well.

The challenge of gender-sensitive implementation of reparations : access to benefits

After parliament had considered the TRC reparation recommendations, the various aspects of the reparations program were allocated to different government departments. The Department of Justice was the lead department. The processing of applications and the payment of individual reparations grants were the responsibility of the President’s Fund, which was set up to house the money. A male official at the deputy director level in the Department of Justice, Farouk Hussein, was tasked with administering the fund. In addition, the fund has a small staff of six people (three males and three females), all holding clerical positions.

As discussed above, the major feature of the South African reparations program recommended by the TRC and accepted by the government is the financial grants. The implementation of the program will be discussed here, and specifically whether it was gender sensitive.

Most of the 19,000 people who were listed by the TRC as victims applied for reparations; about 1,300 people have not applied. The President’s Fund has no gender breakdown of those given payments.86 Generally, the payment of reparations seems to have gone quickly and smoothly. NGOs and victim support groups often assisted their members to get information, to complete forms and in other ways to enable them to apply for reparations.

There were two problems, however, that should be noted

First, in order to receive reparations, applicants had to have a bank account. In South Africa, however, many poor people do not have such accounts. In addition, until 1998, women married under customary law were regarded as minors for the purpose of certain commercial transactions. Furthermore, even when there are no legal impediments, poor and illiterate women often defer to husbands and other men on business issues. The fund urged the banking council to allow people to open accounts or reopen the accounts into which their urgent interim reparations had been paid.

The fund also assisted applicants by writing letters to the Department of Home Affairs asking it to provide people with temporary identity documents in order to open bank accounts. Alternatively, the applicant would have to use someone else’s account. There were a number of cases in which a woman with no bank account had to sign an affidavit to have the money put into her husband’s account. The head of the fund acknowledged that it was quite possible that the women might not be able to exercise control over the money. In two cases where women gave their sons’ bank account details, the women returned to the fund to say that those sons had used up the money without their permission. The fund advised them to report the matter to the police.

Interestingly, the implementing body responsible for reparations has tried, in cases where money was for the children of a victim, to give the money to women caretakers in the belief that this money would actually reach the family, because men sometimes misuse it and often are not the actual custodians of the children.87 This sentiment was confirmed by a former TRC commissioner and a victims support group in interviews.

A second problem with implementation was that only those who were able or prepared to approach the TRC benefited from financial reparations. Many people were not aware of the implications of not approaching the TRC in relation to receipt of reparations. Poor women in rural areas who lacked information and education about these issues were particularly affected. It is highly likely that many women victims of sexual violence were unable to approach the TRC because of stigma, fear, unwillingness to reopen wounds, and many other reasons. There are very few services in South African society to assist such women, and there has been very little discussion in the reparations debate about how to address these issues.

Women’s organizations have not often linked past sexual crimes with current sexual crimes, nor has much attention been paid to finding ways to address the crimes of the past.88 Neither the TRC process nor reparations have had any significant impact on the unequal position of women in South African society.

Gender, reparations, and transitional justice : concluding remarks

The South African government failed to recognize the importance of and need for reparations following the apartheid conflict. It grudgingly delivered on its commitment to pay individual reparations grants, but de-linked other reparative measures (community, institutional, and symbolic reparations) from the transitional justice process. Thus, while the TRC served as an immediate post-conflict space for emotional reflection and truth telling, and provided a measure of exposure and justice (for some), it was quickly left behind as the government located the rebuilding of society, reconciliation, and rehabilitation as part of its ordinary business.

Many important developments have occurred in the reconstruction of new South Africa. Some of these include a land redistribution process; the scrapping of numerous racist laws and the introduction of affirmative action; the requirement that a high quota of women be placed in official positions in the ruling party; the establishment of an independent human rights commission; the delivery to the poor of millions of houses, electricity and water; and new social assistance grants for children. However, these measures have not been linked to transitional justice mechanisms and have not been understood by people as reparations benefits. In this sense, the “external coherence” between different transitional justice elements that Pablo de Greiff suggests is necessary for effective reparations is largely missing from the South African example.89

De Greiff argues that transitional justice (including reparations to victims) should aim to promote recognition, civic trust, and solidarity. It is the first of these that was most compromised by the limitations of South Africa’s reparation program. Many victims feel that the rights violations they suffered have not been addressed adequately, since the government’s ungracious approach to reparations undermined their recognition as citizens deserving of care and respect. Women victims in particular had faced multifaceted attacks on their full citizenship entitlements, as had blacks under apartheid, inasmuch as they were accorded an inferior legal, social, and cultural status.

Additionally, women were disadvantaged due to their status as caretakers of the home and family in a society where families were being torn apart. For women who lost husbands and sons, who lost status and economic support and who faced the task of supporting a family alone, the disappointment at the president’s attitude was deeply felt. This lack of recognition has had a negative impact on the perceptions of justice in the South African experience. Because of the inadequacies of the reparation process, the limitations of the reparations themselves, and the problems facing the rebuilding of South Africa, many women remain unhappy and less than fully “repaired.”90

The South African transitional justice process, and the broader institutional reforms that have occurred, provide positive and negative lessons for other countries wishing to put in place gender-sensitive reparations in the context of transitional processes. I will conclude by recapitulating some of them.

Access to the TRC

Aside from the imperfections in the reparations program for those who accessed the TRC, many people could not approach the TRC in order to be classified as a victim or dependent for the purposes of reparations. Many people who wanted to give statements to the TRC were unable to because they went to the wrong venue, they gave statements to a political party instead of the commission, they lived too far away, the TRC operated for too short a time, they were not yet ready to talk, and so on.91 In an interview, a former TRC commissioner said that while serving on the commission she had pushed the government to help victims, but that she privately agreed that it was unfair to give priority to them.

One of the reasons for this was the short duration of the TRC process. She said that many people did not manage to access the TRC, were not ready to deal with their pain, or did not appreciate its significance at the time.92 Lack of access to transport, illiteracy, disempowerment, lack of confidence, and fear of speaking in public may be some of the factors that impacted disproportionately on women who would have liked, but failed, to approach the TRC.

The reparative effect of making a statement about a rights violation was one of the important benefits of the TRC.93 Many people who could not take advantage of this opportunity had no other recourse to this kind of potentially healing process. Furthermore, since many women were not ready to speak about their experiences at the time of the TRC, they were unable to benefit from reparations. This raises the issue of the timing of transitional justice and reparations measures. For many who have suffered trauma, a great deal of time is needed before they can begin to recount their violations. It seems that South Africa was in too much of a hurry to put the past behind it and did not create the space for longer term reparations programs.

The value of support groups

The lack of reparations mobilized women within victims support groups, and the TRC process as a whole linked women together in small support groups around common issues of loss and pain. Although mutual support and space to talk has been valuable for many family members, these victims groups are often largely comprised of women. Interviewees said that they “empowered each other to go through the TRC process and to access reparations and helped each other in the follow-up work such as exhumations. We counsel each other, maintain contact and communication and have a nice time to forget about things.”94

Men are less likely to create the networks that women develop to assist each other, and thus may be less able to find ways to channel the effects of violence and loss in their lives. A gender-sensitive reparations program should bear this in mind and should try to create mechanisms for bringing men together and providing them with the benefits of mutual support and organization.

Women’s representation and the principle of gender justice

The lack of adequate representation of women and women’s organizations in the peace negotiations and the creation of the TRC meant that gender justice, as an issue, was not considered. The involvement of women and gender activists in the TRC process, however, meant that an attempt could be made to introduce gender issues into both the TRC process broadly and the reparations policy specifically. Women have been equally interested in the amnesty process, reparations, and prosecutions following the ending of amnesty. All of these have had healing effects or other important meanings for women at each stage of the process. Women’s focus on reparations within the victim support movement had partly to do with the way in which the debate on reparations unfolded, and partly to do with the role poor women play in maintaining and supporting families.

All three TRC commissioners interviewed felt that the inclusion of gender justice as a guiding principle for the TRC would have had an important impact in foregrounding gender issues in the commission’s work. The absence of this principle made it harder for gender activists inside and outside the TRC to address gender issues. Wendy Orr said that certain commissioners (some but not all of the women) understood and embraced gender issues. For others, however, gender never really informed their approaches. Obviously, writing on gender justice as a guiding principle cannot on its own ensure that gender issues are considered or addressed. Also, the existence of women in powerful positions does not necessarily mean that they are gender aware or that they will be active in asserting these issues.

Thus, public participation in choosing people to sit on transitional bodies might be an important way of ensuring that gender-conscious people are chosen. Beyond this, the role of women’s organizations and gender activists becomes critical as a lobbying force throughout the process.

Women’s organizations and transitional justice processes

In terms of their impact on the TRC process, women’s organizations played an important role in raising gender issues and encouraging the commission to rethink some of its approaches. This gender advocacy also contributed to the conceptualization of the reparations policy recommendations. Unfortunately, the conflict between the TRC/civil society and the government over reparations meant that many of the detailed recommendations were not discussed. As time went on, and reparations became a single- issue campaign centered on victims rights, women’s organizations became less involved, leaving it to victims support groups and peace/human rights NGOs to take this issue forward. Women’s organizations possibly felt it was more useful to direct their energies to more urgent and realizable struggles over women’s rights.

This may suggest that the content of reparations programs should be formulated earlier on in transitional justice processes; that way, women’s organizations could contribute to the programs from the start, and women victims would know what to expect from them before participating in any transitional justice mechanisms.

Gendered spaces

Creating the space for women to describe their experiences in an empowering and nonvictimizing environment was an issue facing the TRC’s Human Rights Violations Committee rather than in the reparations process. This was because being classified as a victim or dependent by the TRC was a prior condition for application for reparations. Following the above-mentioned submission on gender and the TRC, as well as the other interventions of human rights organizations and women outside and inside of the TRC, the commission agreed to hold three special hearings on women. At the one held in Durban, a woman chose to speak behind a screen to hide her identity.

The panel of commissioners was made up of only women and the audience was mainly women.95 Although the women’s hearings were critical in providing a safe space, additional and more localized hearings might have reached many more women who otherwise did not benefit from them. There is also the problem, mentioned above, of the link between reparations and truth telling. It is likely that some victims, particularly of sexual violence, felt unable to talk about their experiences so soon after they had occurred. Ideally, they should be given future opportunities to tell their stories and to benefit from reparations.

When people approached the TRC, their statements were taken down in private. It was only if they were specifically requested to speak in public that they would appear before the Human Rights Violation Committee. Thus, when statement takers were sensitive and understanding, there would have been some space for women to talk openly. All statements, regardless of whether they were repeated at public hearings, were considered in determining victim status by the TRC. The TRC commissioners generally were very understanding, encouraging, and open towards people making statements. They accepted the fact that there was a subjective dimension to victims’ perceptions of events, even where there was some question about the detailed nature of claims.

The form used by the TRC to take statements from the public included the following caution after April 1997:
IMPORTANT: Some women testify about violations of human rights that happened to family members or friends, but they have also suffered abuses. Don’t forget to tell us what happened to you yourself if you were the victim of a gross human rights abuse.

Statement takers were also briefed on issues of gender-based violence, and some limited psychological support services were provided to those making statements.96 Wendy Orr, a TRC commissioner, made the important point that simply providing public hearings was valuable in giving women a voice in a society where women often have less opportunity to speak.97 Women also appreciated that it was an official yet nurturing and safe space —something they had not encountered before.

The gendered impact of truth telling, amnesty, and human rights violations

Linking the TRC’s violations hearings directly to eligibility for reparations grants in the South African process meant that women were involved centrally in both. In addition, the granting of amnesty to perpetrators was conditioned upon their telling the truth, and the loss of civil claims against perpetrators was understood as being in some ways offset by the provision of reparations. The amnesty cases were important for those women whose lives had been affected by the actions of the perpetrators. However, while some found that the truth telling allowed healing, others became angrier.

Moreover, the women who testified in human rights hearings had mixed feelings: they found them useful, important, cathartic, and liberating but also difficult and painful, while making them feel more vulnerable; it was also felt that the process was created for the benefit of others.98

The reparatory impact of the hearings cannot simply be judged on the basis of the individual victims themselves. The TRC had an important social impact, and its legacy will shape the lives of future generations. The fact that some women were brave enough to bare their souls, and that the TRC was encouraged by women’s organizations to house and highlight this testimony, means that the gendered impact of the conflict on women is now better understood.

Reparations through a gender lens

The South African experience shows the importance of including gender-sensitive commissioners and other officials in truth-telling and reparations bodies to ensure that gender issues are raised and addressed. When truth-telling mechanisms are in charge of either recommending or implementing reparations, the presence of gender-sensitive commissioners is particularly important. The involvement of strong women’s organizations and gender activists within civil society may also be critical in supporting gender-sensitive commissioners and putting pressure on those who are not gender sensitive within official bodies.

Also, incorporating gender justice as a guiding principle in the TRC’s mandate can force commissioners to acknowledge and deal with gender issues. In South Africa, women TRC commissioners felt that this would have assisted them in their struggle to raise gender issues within the commission.

However, as mentioned above, the broader question raised by the South African experience is whether reparations should be linked to truth telling. In South Africa, the fact that reparations were indeed linked to truth telling created difficulties for those women who felt unready to talk about sexual violence soon after the conflict. These women and others who did not manage to access the TRC (often because of poverty, illiteracy, and lack of information) lost out on the opportunity to benefit from both truth telling and reparations.

For those women who did access the TRC, space was created to talk about sexual crimes committed against them; but their specific reparation needs have not been met through targeted programs of counseling or other forms of assistance. In this regard, the explicit inclusion of sexual violence as a crime deserving reparation (and its further categorization into a range of different harms) is important in bringing to the fore crimes that are often hidden and euphemized. In South Africa, sexual violence was only included in secondary lists drawn up by the TRC. Sexual violence would have been more centrally placed on the national agenda had it been mentioned in the founding legislation of the TRC.

More generally, the definition of human rights violations should be broad and encompass women’s experiences more than they were in the South African case. Here, the limited definition of “gross violation of human rights” to extreme crimes of violence meant that many people who suffered other indignities and violations under apartheid and during the conflict were not included in the process of reconciliation. This created a hierarchy of suffering that was also gendered, since more men than women were directly affected in the conflict.

South Africa’s definition of victim, which included dependents for the purpose of reparations, should be commended and encouraged elsewhere. However, ideally, a dependent’s suffering should be treated as a direct violation, not an indirect one. Otherwise, the distinction between direct victims (such as a man who was detained and tortured) and his dependents (such as a wife who might have suffered anxiety, hopelessness, and despair) ends up deepening the gendered value attached to different types of suffering.

It is important that benefits reach all dependents. In South Africa, final reparations grants did not take into account the number of dependent households or the number of dependents within each household. Where rural people are more disadvantaged than urban people, their benefits should be greater. Furthermore, it is often women who are most disadvantaged in rural areas, and who have to take responsibility for dependents who are not covered by reparations. Also, it is important to underscore that beneficiaries need both services and financial grants, and that the latter should be distributed in a gender-sensitive way. For instance, adequate medical and psychological support services should be a first step to deal with the effects of gender-based political violence.

The emphasis on cash grants in the South African reparations program left many victims feeling angry that they had not been given special priority in relation to housing and other social benefits. On the other hand, cash payments allowed beneficiaries to choose how to spend their money, whether on burials, educating their children or simply feeding their families. From the point of view of the goals of restitution and compensation, it seems important that both grants and services be provided to victims. Where cash is paid out, women often spend it on the needs of the family. Therefore, where appropriate, grants should be paid to women. Since large sums of money often create conflict in families, smaller regular payments are less likely to be disputed and abused.

The South African experience also shows that the way reparations are implemented is crucial. For instance, alternative proof of identity should be accepted in countries where, like South Africa, many poor people, and women in particular, do not have official identification and bank accounts.

Symbolic reparations are also important in showing society and future generations that the struggle was led and fought by women, not just men. Public spaces, scholarships and memorial lectures should be named after famous women. Museums should be lobbied to ensure that the gender content of their exhibits is adequate. Events marking the sacrifices of women victims should be arranged at regular intervals. In South Africa, while progress has been achieved in this direction, it is largely insufficient.

The TRC did not adequately link the culture of political violence to the high levels of gender-based violence in the post-conflict period, something that was highlighted by women’s organizations and others, and which poses interesting questions regarding the reparations of harms for the long-term effects of violence.99 The chapter on reconciliation in the TRC report100 did, however, refer to the need to build “a democracy where men and women can be at home,” as well as to the clear challenge for all South Africans to pay more than lip service to the constitutional ideal of a society in which men and women can participate fully, and in which human rights are respected.101

In this regard, there has been much policy and legislative work in South Africa to address the gender inequality that arose from pre-existing patriarchal structures and was compounded by apartheid. The difficulty facing society now is to implement these laws and address poverty (which is also gendered). Lack of resources, lack of official capacity and new social problems like HIV make this a huge task.

South Africa is succeeding in certain respects, but the challenges remain massive. Some of the positive measures identified in South Africa, which might assist other post-transitional societies, and which can be conceptualized as either guarantees of nonrepetition (whether through institutional reform or otherwise) or as collective reparations for women, include:
·         Laws on prevention of domestic violence and rape;
·         Police and military sensitivity training;
·         Monitoring of enforcement agencies;
·         Improved social services for women, including health and termination of
          pregnancy services;
·         Measures to address women’s poverty, land rights, and economic
·         Strong constitutional and equality protections for women.

Other measures that were not present in the South African experience, but that seem essential to help women cope with the effects of gender-based violence, include the following:

1·         Community-based efforts to challenge stigmatization and support women. These could include women’s support groups for victims, community “speak outs” and nongovernmental service provision of counseling that is sensitive to the specificities of political violence against women.
2·         Broader campaigns and strategies by civil society and government to end violence against women, which could refer (discursively and practically) to the suffering of women in the struggle. Thus, a campaign to end domestic violence could make links between women who are prisoners in their own homes to the experiences of women prisoners under apartheid/a repressive state; the behavior of abusive and controlling men could be likened to torture; women could be encouraged to resist and to defend their human rights, and so on.
3·         Future spaces for women to tell their stories, especially those women who were unable to talk about their experiences at the time of the transitional justice body. Human Rights Commissions, museums, and various other bodies could arrange for future hearings.
4·         Campaigns to redefine masculinity in the schools and in society more broadly.102
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