Constitutions in transition
Constitutions in transition

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Constitutions in transition

2.4 The Truth and Reconciliation Commission (TRC)

The presence of ubuntu in the Constitutional Court is consistent with the development of the TRC – the commission established to compliment the legal and political transition from apartheid to post-apartheid South Africa, provided for in the Interim Constitution.

The purpose of the TRC was to provide a cathartic forum through which grievances, misery, confessions and apologies for acts committed under the apartheid regime were aired. The TRC had a parallel function to the Interim Constitution (and, later, the Constitution itself). Indeed, the ‘TRC was created not only to legitimise the new state, but also give birth to a new nation, a nation based on substantive equality, dignity and freedom’ (Madlingozi, 2007, p. 107).

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Figure 7 Apartheid in practice

Just as the Constitutional Court judgment in Makwanyane stressed restorative justice and appeasement over retribution and state-sanctioned violence, the TRC offered − as a mechanism for ‘truth seeking’ − amnesty to those that admitted to and fully disclosed the nature of their politically-motivated violent acts, offering a forum whereby people could reconcile their own selves and experiences with South Africa’s new post-apartheid direction.

Box 2 ‘Reconciliation and revenge in post-apartheid South Africa: rethinking legal pluralism and human rights’ (Wilson, 2000)

Wilson considers the TRC to be important for another reason. The significance of the TRC was that it was a theatricalisation of the power of the new state; the amnesty ‘compelled key actors in the previous political conflict to confess when they would rather have maintained their silence’ (Wilson, 2000, p. 79). Likewise, the TRC ‘represents one effort on the part of the new regime to reformulate “justice” and establish a unified and uncontested administrative authority’ (Wilson, 2000, p. 78; emphasis added).

In terms of constituting a new South Africa, then, the TRC played a vital role, not least in signposting a break from the past and a reinvention of legal authority for the future.

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