The differences between the post-war treatment of the accused perpetrators of the High Court of Justice in the Mau Mau emergency, and the South African Truth and Reconciliation Commission are stark and multiple. While the South Africans chose to forego a traditional trial, the victims, instead, received a formal opportunity to publicly air their grievances, unlike the Kenyan’s whose voices were squashed under regime protection and political game (Elkins, p. 343). This proved, in the end, to be more beneficial for the healing of the community and to pave the way for progress toward a more united South Africa, while the Kenyan’s were left to deal with their pain and abusers remained unpunished.
The reasons that South Africa chose the option of truth hearings are many. Having been through recent trials of similar magnitude, they not only understood the need for restorative justice after such brutal and pervasive crimes were committed (something traditional trials do not offer); but also, the costs and the limits of the judicial system. For example, the DeKock trial, in 1995-96, proved to cost more than $1million, which the State had to pay (Tutu, p. 23). Juxtaposed against the Mau Mau Emergency, where the crimes committed were against native population by foreign men and institutions, the South Africans had to live with each other, afterward. And, because the situation in South Africa had been one that segmented the civilization and re-appropriated them into a false hierarchy, it was necessary to move carefully forward in a manner that was as much healing as it was serving justice (Tutu, p. 21).
Additionally, with the understanding that without this time and space for acknowledgement, as Desmond Tutu indicated in his book, “No Future Without Forgiveness”, it would most likely never be fully healed of such extreme brutality and violations. Tutu purports, “a nation divided during a repressive regime does not emerge suddenly united when the time of repression has passed” (Tutu, p. 21), and therefore attributed the subsequent “miracles” of peaceful power transition to this type of airing of grievances.
Furthermore, a traditional trial requires substantial evidentiary proof, and in the case of South Africa, would have been very difficult to obtain. First, there was no admission of guilt on the part of the police and State leaders, and no volume of physical evidence that could prove otherwise. Not only were the perpetrators holding the documents that could prove their own guilt, but they had been very willing to lie about their involvement in any of the crimes; and moreover, it was clear that (the all-white) judiciary were in collusion with the police and other leaders to perform, what Tutu called, “miscarriages of justice” (Tutu, p. 24). In stark contrast, the Kenyan brutalities had physical evidence, much of which was transcribed by hundreds of letters from camp detainees and even official colonial reports buried inside of office records… even uncovered in commission reports (if even by mistake) by the Devlin Report (Elkins, p. 353). Yet, despite the evidence and the solid push from British human rights and labor groups to expose the abuse and murders, the crimes went unpunished.
Ultimately, the way the Truth Commission proceeded allowed the victims their time to tell the stories in a way that allowed not only truth to flow from their lips, but provided opportunity for the cleansing and healing that only being able to freely speak about their victimization, can bring. Offering general amnesty without this acknowledgement, would have equated, as Tutu indicates, to “national amnesia,” and would have further prevented the healing that has now come to South Africa. Kenya, on the other hand, in the shadow of blatant disregard for human atrocity by colonial powers, has been left to lick its own wounds, and the request for forgiveness from the colonialists has yet to come.
Elkins, C. (n.d.). Imperial Reckoning: The Untold Story of Britain’s Gulag in Kenya. New York, USA: Owl Books-Henry Holt and Company LLC.
Tutu, D. M. (n.d.). No Future Without Forgiveness. New York: Doubleday.
Professors Note: Lovely essay, Teri! I particularly like the reference you made to SA’s previous, albeit less productive, experiments with justice in response to the damages caused by apartheid. This historical context is important for understanding why the TRC approach was such an imperative for South Africa’s post-apartheid future.