The South African Truth and Reconciliation Commission—a Model for Gender Justice? (Draft)

The everyday reality of many women worldwide includes violence in its myriad forms ranging from domestic violence to rape to honor killings. In situations of armed conflict, research reveals an overall increase in the toleration of violence and an escalation of violence committed specifically against women. Although women are violated physically, psychologically and economically during such periods, the use of sexual violence is also prevalent. The prohibition of acts of violence against women, under both international human rights and humanitarian law, are in most instances ignored, and historically, impunity for such acts, has been the norm.

Women’s roles as mothers and bearers of children, or as bearers of a collective identity, often render women as targets of specific policies and practices. For many years, feminist scholars and advocates have highlighted how women’s identities and status as “wife/ mother/ daughter/ chattel” and so on - which are entrenched in patriarchal societies - inform beliefs and expectations in society in general, and in legal and political systems in particular. Women are defined in terms of their reproductive and sexual roles and hence are not seen as individual human beings with rights of dignity and bodily integrity. Through the designated gender roles, they are reduced to embodiments or beholders of another’s identity and this makes women vulnerable targets, both in times of peace and during armed conflict, and results in an invisibility and marginalization of harms suffered by women. A universal struggle for women has been the de-linking of attacks against them and their bodies, from the notion that these attacks are against the family or the community. The consequence of such designated gender roles to date has been a general lack of accountability for crimes against women. The abovementioned scenario in respect of both violence and the use of identity to violate women’s human rights was a reality in South Africa, under both colonization and apartheid.

It has been argued that justice, accountability, and healing for women, whose human rights are violated, are not necessarily achieved only through the justice system. With appropriate and just standards and tools in place, healing through quasi-judicial and non-judicial systems can also be achieved through public acknowledgement of the violation, by allowing the victim to testify and break the silence surrounding violence, and other attempts to restore the person’s sense of control over herself and her life. The institutions and forums that are utilized to achieve these goals could include judicial, quasi-judicial and non-judicial models. The United Nations International Criminal Tribunal for Rwanda, the NGO Tokyo Tribunal and the South African Truth and Reconciliation Commission are examples of such forums. Justice, accountability, healing, reconstruction and peace-building are, and continue to remain, contested issues and processes that post-conflict South Africa is struggling to deal with (Manjoo & Spees 2002).

It has also been argued that truth commissions can successfully make visible and legitimize women’s experiences, if the mandate is gender sensitive and explicitly reflects the nature of violence and human rights violations against women. In addition, it is crucial for women to have access to information on the mandate, structure, functioning and safety measures available (Elisabeth Rehn & Ellen Johnson Sirleaf 2003). Hayner argues that “Even with a flexible mandate and the intention of fairly gathering information about all patterns of abuse, a commission may well fail to document certain widely experienced abuses. Perhaps the most commonly underreported abuses are those suffered by women, especially sexual abuse and rape” (Hayner 2001:77). This was the reality in South Africa where there was knowledge of the practice of rape by the security forces, by opposition political groups and also in the camps of the liberation movements, yet this did not fully emerge either prior to or during the TRC hearings.

The need to place women and their experiences of violence at the core of the crime is a constant struggle both at national and international level. The articulation of women’s experiences, albeit to a limited extent, through the Truth and Reconciliation Commission (hereinafter referred to as the TRC), reflected this reality. The TRC has been criticized for its failure to achieve gender justice because of a narrow interpretation of its mandate (which was narrowly prescribed by legislation to start with) and also a narrow interpretation of gross violations of human rights.

This paper will attempt to provide a brief picture of the extent to which the TRC took women into account in its conceptualization, in the legislative mandate, in its composition, and also in its functioning.

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