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On May 11, the South African Department of Justice and Constitutional Development (DOJ) invited comments on new regulations governing the distribution of reparations to victims of the apartheid era in the form of medical and educational benefits.
Civil society organizations and groups representing survivors’ interests have raised concerns regarding the scope of the regulations, as well as the DOJ’s overall failure to engage with survivors and consider their views when drafting reparations policies.
The South Africa Transitional Justice Coalition (SATJC)—involved in addressing post-Truth and Reconciliation Commission (TRC) issues—has asked the government to listen to survivors before it finalizes such reparations measures.
Read the submission made by SACTJ on the regulations.
ICTJ is a member of SATJC and will provide technical assistance the coalition may need in analyzing the legal and practical implications of the regulations. In ICTJ’s experience working on reparations programs in Latin America, Asia and elsewhere in Africa, victim participation in the policy-making process is a key element needed to ensure a reparations initiative is both feasible and meaningful.
Narrowly defining eligible victims
In offering educational and medical benefits to apartheid victims, the regulations define victims as “those who suffered physical, mental, or emotional injury,” and who either testified before or registered with the TRC prior to the release of its report in 2003. This definition includes about 18,000 registered victims and their dependents, many of whom received a one-time lump sum payment from the government in 2003.
The Khulumani Support Group, a 54,000-member organization established in 1995 by survivors and their families, says their records indicate at least 65,000 victims of gross human rights violations covered by the TRC act who should be entitled to reparations. The TRC itself found about 8,000 victims who could have been registered if not for the closing of registration of the victims’ list.
Thus, if eligibility for reparations is to be based on the closed list, those who received compensation earlier will receive medical and educational benefits while those who were previously omitted will again be excluded from reparations.
Alternative approaches
Reparations programs implemented elsewhere based on truth commission findings do not require victims or survivors to have publicly appeared before a truth commission to be entitled to health and education benefits. In Chile, where a specialized health care program for victims implemented, or in Sierra Leone, where certain surgeries are offered as reparations to victims of conflict-related sexual violence, beneficiaries are not required to have testified or registered during the existence of those countries’ respective truth commissions.
Other programs have also recognized that certain survivors—such as children, victims of sexual violence or those who fear retribution from perpetrators of violations—may not be in a position to publicly testify about their experience or to openly come forward and apply for reparations.
Limited outreach, limited participation
The DOJ has invited comments on the regulations before June 8, 2011; however, there has been little effort to ensure victims are made aware of the regulations or the deadline to comment. Moreover, given the length and complexity of the regulations themselves and many victims’ limited literacy or lack of access to information technology, SATJC is concerned meaningful participation will also be limited.
The efforts of Khulumani and SATJC will help mobilize victims and encourage their participation. It is ultimately the state’s responsibility, however, to ensure the reparations measures themselves reach as many victims as possible, respond to what victims need, and fulfill the promises made when South Africa embarked on what much of the rest of the world still considers an example of what transitional justice can bring to a society emerging from conflict or dictatorship.
In this week's podcast, ICTJ discusses the victims’ views on the new reparations plan with Dr. Marjorie Jobson, the national director of the Khulumani Support Group.
