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Evaluating the Gender Content of ReparationsLessons from South AfricaExecutive Summary
South Africa suffered centuries of colonialism and racist rule throughout which black people were denied voting and other basic human rights. 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 policies gave preference to whites for a range of social benefits including education, employment and housing. Non-violent protest against Apartheid soon turned into armed conflict; the period from the early 1960s to 1994 saw heightened resistance from those opposed to Apartheid and a resultant increase in state repression. During this period, many activists were abducted and killed, and thousands were detained and tortured. In the early 1990s, the government began negotiating with the liberation movements, and in 1994 the first democratic elections were held. Negotiations also resulted in the establishment of a Truth and Reconciliation Commission (TRC), which operated between 1995 and 1998. Victims and perpetrators alike were encouraged to make statements to the Commission detailing the violations they had suffered or committed. The TRC was able to award amnesty to those perpetrators of gross human rights abuses who gave full disclosure of their acts, a provision that resulted in victims losing their right to institute civil claims against wrongdoers. In addition to this truth seeking, victims identified by the TRC were to receive reparations from the government, and the TRC drafted and submitted a reparations policy recommendation for the President. Although urgent interim reparations were paid out to victims relatively quickly, the government took a number of years to respond to the entirety of the TRC's reparations recommendations. When it finally did, the response was quite different from the recommendations, and final reparation amounts were significantly lower than the TRC's suggestions. Since then, almost all of the 19,000 victims have been paid. Some symbolic reparation measures have been enacted, although community and institutional reparations measures remain quite limited; victims have effectively been told to wait in line with the rest of the poor for services such as housing, medical care and psychological support. Women's experience of the conflict and involvement in the TRC Black women faced particular hardships under Apartheid as they were denied rights to land and property. They suffered the harsh consequences of dispossession when families were removed from land, and they had to carry the burden of family support when men were forced into migrant labor. As agents in the conflict, women suffered gender-specific forms of torture including: 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 other forms of psychological torture. Extreme repression was also used indiscriminately to terrorize the public. During violent ethnic and regional conflicts, women were abducted and impregnated. When South Africa invaded neighboring countries, there were reports of rape of women in the local population by soldiers. There was also evidence of rape, sexual harassment, and abuse of women in the African National Congress (ANC) camps and within the underground movement. Finally, women experienced the conflict as dependents and family members of the victims. Mothers and wives had to endure intense anxiety over the whereabouts or treatment of their husbands and sons, and they often lost breadwinners and status within their communities. While women were involved in the transitional negotiations, they were not central in formulating or designing the Truth and Reconciliation Commission, which 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. As a result, the TRC was ‘gender-neutral' and thus inadequately dealt with women's specific experiences of the conflict or their needs in the new society. When the TRC began its work, human rights organizations and gender activists lobbied the Commission on a range of gender issues. A submission that set out detailed recommendations on gender and the TRC was important in informing some of the Commission's approaches.[1] The TRC then consulted more widely with women's organizations and held three women's special hearings as part of its enquiry into human rights violations. These hearings gave women a safer space to talk about their suffering and for some, to talk about rape, sexual assault, and other forms of gender-specific violence and abuse used by all parties to the conflict. The human rights violations hearings contributed towards the project of reconciliation, reparation and rehabilitation in certain respects. Because of the intervention by gender activists both within and outside of the TRC, the statement forms were reworked and the statement takers were trained to encourage women to talk about their own experiences and not just those of the male victims about whom they had primarily intended to speak. The special hearings on women garnered a lot of media attention and changed, to some extent, the way in which women were seen in the TRC process -their agency was better understood and the gender-specific violations they suffered were exposed. Women's voices in designing reparations Quite a large number of commissioners and Commission staff were women, some of whom felt strongly about gender issues. These women welcomed the call for gender sensitivity from outside the TRC and did what they could to influence the Commission's approach. Furthermore, gender activists were consulted during the development of the reparations recommendations, though their views were not meaningfully incorporated into the final draft. It was the victim support organizations (and others) that were most involved in lobbying for reparations after the TRC's mandate ended and in initiating (as yet unsuccessful) international compensation litigation. While women make up the majority of these bodies, women's organizations themselves have not been very active in the struggle for reparations after the TRC. a) Gender and the definition of harm for the purpose of reparations Reparations were awarded to victims of "gross violations of human rights," which were defined as "the killing, abduction, torture or severe ill treatment of any person." The definition of victim included "relatives or dependents of victims." This was significant in bringing many more women into the ambit of reparations. One of the concerns with the definition given for gross violations, however, was the exclusion of systemic crimes of Apartheid such as, among others, the forced removal of communities from their homes and land, the institution of inferior education for blacks, and laws that restricted the freedom of movement of blacks. Women were particularly affected by these violations, which were not covered by the TRC's mandate for the purpose of reparations. Thus, the individualizing of the crimes committed during the conflict meant that the TRC focused largely on acts committed against men, rather than women, and the communities from which they came. Another concern was that the Reparation and Rehabilitation Committee made a distinction between victims and relatives/dependents which was based on the notion that relatives/dependents suffered less. Relatives/dependents were entitled to grants only when and if the ‘primary' victim had died. Thus, the system did not recognize the harms suffered independently by women whose sons and husbands were imprisoned, tortured, etc., and who suffered loss of income and status, pain, and stress. However, the combination of gender-sensitive commissioners and staff within the TRC and gender-based interventions from outside ensured that a number of gendered categories of harm were included in the listed definitions of torture and severe ill treatment. These included assault to genitals and breasts, rape, beating leading to miscarriage, and sexual abuse. b) Gender in defining reparations benefits and beneficiaries The TRC Report made a number of recommendations for the government on reparations, including:
The urgent interim grants were intended to provide financial assistance to victims to access services that they needed. Victims were also referred to appropriate government services such as social welfare counselling, social assistance grants and health care services. The cash sum for the urgent interim grants ranged from US$250 to US$713 and was based on the victim's number of dependents. For the purpose of urgent interim reparations, relatives or dependents included parents, children and spouses. This last category included customary and religious spouses as well as domestic partners -an expansion of the notion of family which allowed the program to encompass a greater number of women. As for final, individual reparations grants, in April 2003 the government agreed to a once-off payment to each victim of US$3,750 (significantly less than that proposed by the TRC), an amount that would not vary according to rural or urban location or numbers of dependents. The definition of spouse was more limited for final reparations than it had been for interim reparations; it referred to "the person married to an identified victim," and as such did not include domestic partners and same-sex partners. Furthermore, the failure to provide final reparations to all dependents of a man who died (as was done with the interim reparations), and instead designating the person who went to the TRC as the main relative/dependent beneficiary, has led to conflict within families. The final reparations payments were once-off, small sums that left most victims feeling that they had been poorly treated. The disjuncture between the TRC recommendations and the government's decision to limit individual reparations not only disappointed many, but also reduced some of the reparative potential of the grants. Women went to the TRC in large numbers and made up a significant portion of those who received reparations payments. They have used the money to pay for burial related expenses and basic household needs. Interviewees have complained that the reparations failed to address the material loss suffered by the removal of a breadwinner (often a husband or son) from their families. Thus, the small grant has only made a limited dent in their long-term poverty. 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 (unlike many men) 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. Other TRC recommendations exist in varying degrees of implementation and gender sensitivity. Community reparations, for example, have not been fully developed by the government because it believes that victims should avail themselves of existing services. While many of these services are sensitive to the needs of women, specific assistance for victims of human rights violations, including women, is still needed. Institutional reparations, on the other hand, are ostensibly being addressed by existing government departments, but these are not always gender sensitive or effective. Symbolic reparations are being developed and are to some extent gender sensitive; there have been certain attempts to symbolically acknowledge 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; or the renaming of streets and towns after famous women, etc.). Financial reparations have been processed quite efficiently by the government. A number of gender issues have, however, arisen in relation to these payments. For example, many applicants, particularly poor and married women, did not have bank accounts. To resolve this problem, women were either assisted in opening accounts or were allowed to put the money in a relative's account. As a result, however, in some cases women lost control of the money they were meant to receive. In a different vein, the government made efforts to give money awarded to children to their female, rather than male, care-givers, believing that it would be better used for the child's benefit if distributed through women. Linking the truth-telling and reparations mechanisms in South Africa meant that only those who were able or prepared to approach the TRC benefited from financial reparations. Many people were unaware 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 female victims of sexual violence were unable to approach the TRC because of stigma, fear, unwillingness to reopen wounds and a range of related reasons. A longer period of time should have been allowed for victims to come forward to speak about their suffering. 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.' Despite this, the human rights violations hearings had an important social impact that went beyond the needs of the individual victims. The few brave women who spoke about their experiences have extended the space in society for issues of sexual violence to be discussed and have increased the understanding of the role of gender in the conflict. The failure by many women victims to come to the TRC violations hearings means that forums are still needed in which women can talk about the specific violations they suffered. Women victims need psychological and other support services. Addressing the epidemic nature of gender-based violence in the new South Africa requires that links be made between past and present violence against women. Strong, gender-aware female TRC commissioners and staff played an important role in bringing gender concerns to the foreground of the TRC's work. However, not all women supported their efforts and some of the seemingly progressive men were quite dismissive of their attempts. It seems clear that gender justice, as a guiding principle of the TRC's work, should have been written into its legislation from the outset. This would have strengthened the hand of those inside and outside of the Commission working to promote these issues. Arising from South Africa's transitional justice and reparations experience, the following are some of the key recommendations for future reparations programs elsewhere in the world:
The following are some additional recommendations for dealing with the effects of gender-based political violence in a reparations program:
Click here for the full text of this chapter as it appears in What Happened to the Women? Gender and Reparations for Human Rights Violations, ed. Ruth Rubio-Marín (New York: Social Science Research Council, 2006).
[1] Beth Goldblatt and Sheila Meintjes, "Gender and the Truth and Reconciliation Commission - A Submission to the Truth and Reconciliation Commission," May 1996. [2] Truth and Reconciliation Commission of South Africa Report (Cape Town: Juta, 1998), Vol. 5, chapter 5, 180-1.
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