The notion and practice of Transitional Justice is an undertaking at some sort of boundary, a borderline of some sort between ‘here’ and ‘there’. But it is not just any borderline, rather Transitional Justice is a borderline where law and politics confront each other after a historical moment where normative frameworks and social forces that regulate and protect co-existence have collapsed. At that moment, the entire human society – those with power and those who do not have it – experience a sense of precarity. Precarity in this moment is experienced through common insurability that is uncontained and threatens the very essence of humanity. The common agreement is at the moment of Transitional Justice which is often captured with the phrase ‘never again’. That is, the society (without hierarchies) declares that the kind of misery of violation, torture, humiliation, discrimination — the affective realm of human degradation that has been experienced must never be allowed to re-occur.

Because of the shame and existential threats which are often expressed in the moment of injustice from which the society desires to transit, the adoption of Transitional Justice is characterised with some sort of haste. This is because on one hand, Transitional Justice creates a ‘past’ and posits for a restorative future. It is a future that is neither based on victor’s justice nor vengeance. Rather, it is one of re-engaging and building human connectedness. The subjectivity expected by Transitional Justice is therefore something more than the ordinary everyday justice climate of legal decision-making and establishment of fair practices and just policies. It exceeds the limits of the existing legal architecture because the kind of horrendous violations for which responses are required have an overbearing presence that seems “larger than life” and beyond our control. In other words what is in question is the entire script of civic virtue and essence of human community.

With many possible explanations to the inhumane degrees of violence and atrocities that Transitional Justice attempts to reverse and forestall in future, the question is ‘what makes such inhumane degrees of violence and atrocities possible?’ remains open to public debate. There are numerous explanations some with roots traceable to Emile Durkheim’s [1] work on anomie and Simmel’s [2] ideas about the stranger. While most recent scholarship and social advocacy on the inhumane degrees of violence and atrocities have focused on a much detailed analysis that accounts for politics of the body, growing multiplicity, contingency, and apparent fungibility of the identities, the common bond in these strands of analysis seems to be social uncertainty about people, situations, events, norms, and even cosmologies. There are some works by philosophers, anthropologists and even law scholars who suggest that such uncertainties and possibilities to inflict inhumane degrees of violence and atrocities are marks of ‘primitivism’. Yet, the global spread of violence and atrocities cuts across race and time. The notable cases from Kenya’s 2007-8 post-elections violence, to Darfur in Sudan, Gulu in North Uganda, former Yugoslavia, Rwanda, Apartheid South Africa, and many others after the Holocaust under the Nazi Germany spread beyond the boundaries of the so called first and third worlds.

A more convincing explanation to the violence and atrocities that we have seen in these periods may be what anthropologist Arjun Appandurai has given as “…uncertainties has something to do with the forces of globalization — weakened states, refugees, economic deregulation, and systematic new forms of pauperization and criminalization” [3]. Yet, to my knowledge, there is very little attempt to deal with Justice and Social Reconstruction after violence and atrocities in a way that engages it as a local as well as a global problem. Right from the 1952 compensation treat for the Jews from the government of Germany, the extent and depth of Transitional Justice remain rather localized and dealt with as a momentary affair. This explains why the 1952 agreement above has had to be revised most recently [4].

To the contrary most works of scholars, as well as legal-political response in the period after violence, focus on how ethicized or racialized body has been injured as a theatre for the engagement of uncertainty. Of course it is strange that the Transitional Justice agreements and conversations are not holistic enough, yet the process of Transitional Justice is about story telling. Its normative assumption is usually that of movement from dictatorship to democracy or violence to peace or oppression to freedom or even discrimination to equity. Yet, while this sense of optimism is an expression of public discourse of departure from a dehumanizing past, it is often expressed without complete consensus on the end result of transition. The menu of institutions that are most used for Transitional Justice are as large and vary from International Tribunals, a powerful International Criminal Court (ICC), dozens of truth commissions, national/international hybrid courts to prosecute top human rights abusers and the application of universal jurisdiction to try former heads of states outside of their home country.

Using anecdotes of my encounters with the South Africa situation and reading of the contemporary political manifestations, I argue that Transitional Justice is an incompletely theorised agreement whose course is defined “when the drive is on”. While I am aware that the experiences of South Africa’s Truth and Reconciliation Commission (TRC) have already been critiqued and improved upon in places like Sierra Leone and East Timor I argue that in South Africa and many postcolonial economies, incompleteness in theorizing Transitional Justice now threatens to create a paralysis. Rather than pose the now emerging question, “is Transitional Justice really just?” [5], it seems to me that theoretical consensus should inform what a society regards as their idea of post-violence justice before embracing the now popular rhetoric of Transitional Justice.

In South Africa, the Truth and Reconciliation Commission (TRC) was adopted as a compromise mechanism for Transitional Justice. Established by the Promotion of National Unity and Reconciliation Act of 1995 (Unity Act), the task of the TRC was to investigate gross human rights violations perpetrated by both state actors and members of liberation movements between 1960 and 1994, the period of legalized apartheid. The TRC commenced operations in 1995 and published the first five volumes of its report in 1998. Much has been written about the TRC beyond these five volumes and the sixth volume published by the Amnesty Committee in 2003.

Yet, the most glaring critique and perhaps central question not just for TRC but the practice of Transitional Justice is a never ending debate in contemporary South Africa. Take the 2008 xenophobia violence for instance. The three first weeks of May 2008 are still clear in my mind when, as a resident of Cape Town at the time, I witnessed a proliferation of news and commentaries on what has been labelled xenophobia violence in South Africa. During this period, numerous of non-South African citizens labelled as ‘strangers’ and stereotyped as ‘Makwerekwere’ were evicted, some killed and their property looted. This wonton violence has no regard for the role that some of the so called strangers played in the struggle against apartheid and in building the ‘new South Africa’.

Underlying the May events are many scenarios and narratives of incomplete Transitional Justice. An in-depth look into South Africa reveals that there are in particular certain social contradictions that have not been adequately problematized not because no language of their eligibility exist, but because of the discomfort, unease and tension that is often raised when these realities get verbalized. One such phenomenon is the subject of income inequality. The mute response given to the subject of income inequality in South Africa has nothing to do with intelligibility, but more mundanely, it is what is there, but not ‘seen’ or more accurately, treated as an absence precisely because its presence disturbs the bonds of the “Rainbow Nation”.

At the time of the xenophobic attacks, the United Nations Development Programme (UNDP) released a report on South Africa’s progress towards attaining the Millennium Development Goals. The report documented that the Gini Coefficient without social grant stood at 0.59. Most importantly, the report stated that while the income of those in the poorest 10% had increased at an annual rate of 0.6% between 1993 and 2006 that of the richest 20% had increased at an annual average of rate of 72.5% within the same period. This disparity in the rate of improvement of income between the poor and the rich means that while income poverty declined between 1993-2006, inequalities increased.

The above scenario of inequality, raises the question of who is benefiting from the so called real GDP growth of 5%? To analyse this, a sneak review of the history of the current South African state would be an appropriate preface. At the end of apartheid, the South African government resolved to adopt a liberal economic model in a dual occurrence that has been referred to as the moment of ‘liberation and liberalization’. The thrust of the negotiations that resulted into this dual physique is well captured by the doyen of South Africa’s liberal Journalism Allister Sparks:

‘Before transferring power, the nationalist party wanted to emasculate it, it tried to negotiate a kind of swap, it would give up the right to run the country (political power) in exchange to the right to stop the blacks from running it in their own way’ [6]

The resulting state in the words of Prof. Ali Mazrui, was a compromise where the incoming black led government was to be in charge of the ‘crown’ ( instrument of the state) while the white minority would retain the ‘jewel’ (economic power). It is this division of control of the jewel and the crown that explains the various scenarios painted above the UNDP and Reserve Bank statistics. It attests that it is not only governments and institutions that discriminate, but the markets. Given freedom (as in South Africa), the market chooses who to reward and who not to, worst of, because its allocation is based on a historical framework, it tends to give the members of the dominant class, who already have, at the peril of the have-nots.

The central thing is that the whites feared that the Black majority would use state power to redistribute resources and reverse privileges. The condition for the transition was simple; the blacks would take the “crown” while the whites would have the “jewellery”. It is perhaps for this reason that Africa National Congress (ANC) adopted more minimalist, pro-business and conservative programme (summarized under the Reconstruction and Development Programme).

Yet, the discussions around the TRC, and South Africa’s Constitution after 1994 were coached in the language of Human Rights. We cannot therefore rule out the possibility that Human Rights may have been adopted because of its double edged nature. Human Rights protect the rights of all and this was the only discourse that was likely to protect the rights of the yester year’s privileged class. As ably put by Ibrahim Gassama;

‘Rights can be deployed to protect the powerful and the status quo just as easily as they can be wailed to advance the interest of the weak and the excluded. The power of this observation, should be increasingly apparent to rights activists in South Africa’[7]

I emphasise the link between Transitional Justice in South Africa and the emerging questions of social, political and economic inequality as an invitation to open our eyes to the fact that inequality is created by societies, international systems and governments. It is a result of policies, architect of the state and mechanisms that deny people opportunities to earn a decent living, discriminatory and exclusionary policies, victimisation of communities and inequitable distribution of resources.

Six years later, it was these same questions that had been raised in ‘three weeks of xenophobia’ that captured the campaigns at the third general elections after the end of apartheid rule. Only that this time, the questions are not just seen as a problem of foreigners - the ‘other’ who are presented as opportunistic makwerekwere on the South Africa success. Rather, the question is positioned as political question of social inequalities and powerlessness. Even though the debate is open on tactics and integrity credentials of the leaders of the Economic Freedom Fighters Party (EFF), Julius Malema, it is these questions that earned him votes. Indeed after the May 7 General election, ANC went back to parliament with a reduced majority from 65.9% in 2000 to 62.15%. It is EFF which was only 8 months old at the time of elections that caused most of the erosion on ANC after bagging 6.35% of the total tally. The much larger opposition party Democratic Alliance, also increased its share of votes from the 2000 elections results of 16.7% to 22.23%.

While there are numerous factors that account for these changes in voting patterns, one must remember that just like the notion of Transitional Justice, elections are often part and parcel of mechanism through which citizens express their will of justice. The questions raised in the May 2014 elections pointed at the persistence of the yester year’s social structure. These are structures which even the Black Economic Empowerment (BEE) or the version innovated by some companies and branded as Expanded Black Economic Empowerment (EBEE), has been unable to deal with. They are structures that were designed and entrenched by the apartheid state and therefore present form of what ought to be past injustice.

The question that face us here is whether there was complete theorization and indeed an agreement of the South Africa society that accords dignity and freedom for all after the ‘transitional period is over’. With the democratic government now well in place, it seems to me that the limit of the Transitional Justice mechanism as practiced in South Africa lies in the very fact that they were not completely theorised. The questions raised in the 2014 election and the everyday life of the ordinary South African tends to suggest that the central question of dignity and meaning of freedom were not attended to in South Africa’s TRC process. More so, there is no evidence that the question of ‘jewel’ and ‘crown’ raised by Ali Mazrui had any response. Similarly the language of what is justice after apartheid seems to be left open and little is being done to gain consensus.

As the notion and practice of Transitional Justice loses its organic purpose to become some mere transferable template, it is a return to more theorization that has potential to guide us in creating the necessary link between the global and local visions of justice for societies that resolve to move from ‘here’ to ‘there’. In such reflections more detailed questions such as: Who is the subject of justice, Whose justice, What should be done with a recent history full of victims, perpetrators, secretly buried bodies, pervasive fear, and official denial? Should this past be exhumed, preserved, acknowledged and apologized for? How can a nation of enemies be reunited, former opponents reconciled in the context of such a violent history and often bitter, festering wounds? What should be done with hundreds or thousands of perpetrators still walking free? And how can a new government prevent such atrocities from being repeated in the future? And how about the collaborative and residual structural forces like economic structure and knowledge economy?

To guide us in complete theorisation of Transitional Justice, I suggest that we deploy the reflections of feminist anthropologist Judith Butler in Frames of War [8] . Butler has suggested that discussions and conclusions on the acceptable model of developing and pursuing Transitional Justice should be guided by the Ethics of precarity. In my rendition of ethics of precarity, I am making reference to the logic that we owe our every existence to the other. This means ‘as Judith Butler has said, that we are irrevocably responsible for the other - from the perspective of psychoanalysis, the other dwells within the self through the unconscious, through repetition, compulsion and even through bodily drives in ways that render us constitutionally incomplete, disoriented, out-of-joint and driven by alterity. Thus the process after conflict or violence [which is usually an intensive othering process"> is about rediscovery and reconstitution of self - this is what Transitional Justice should do. Ultimately Transitional Justice is to rethink the complex and fragile character of social bonds and to consider what conditions might make violence less possible, all life is equally grievable and hence more liveable.

If the central objective of Human Rights - human dignity - gets deployed from this idea of attaining a society where all life is equally grievable and hence more liveable, then Transitional Justice shall become a completely theorized agreement. For in that meaning, no one would be a ‘stranger’ and forestalling xenophobia and inequality would become objectives of Transitional Justice project in a context such as that of South Africa. Equally, the haste to move from ‘here’ to ‘there’ would be layered with more detailed questions of subjectivity, social inequality and powerlessness. At any rate objects of analysis do not occur as natural phenomenon the way Transitional Justice mechanisms like Truth Commissions tend to assume. Rather, they are partly constructed by the discourse that describes them. The more natural the object appears, the less obvious this discursive construction will be. When incompletely theorised, the Transitional Justice mechanism has tended to take too much of its expected outcome for granted and thus missing the goal of social transformation. You just need to be a student of South Africa 10 years after the Truth Commissions as I have done above to realize that Transitional Justice as practiced and implemented in our times has not delivered dignity and freedom for all.

* Dr. Steve Ouma Akoth is an anthropologist currently undertaking extended fieldwork in Kenya. This article was part of a presentation made during a conference on transitional justice in Africa convened in Kampala, Uganda by, FAHAMU and the Refugee Law Project

END NOTES

[1] Durkheim, Emile. 1951. Suicide: A Study in Sociology. Glencoe, Ill.: Free Press.
[2] Simmel, Georg. 1950. “The Stranger.” In The Sociology of Georg Simmel. Trans.and ed. [3] Kurt H. Wolff, 402 – 408. Glencoe, Ill.: Free Press.
[4] Arjun Appandurai. 1998 “Dead Certainty: Ethnic Violence in the Era of Globalization,” Public Culture, Winter, 10:2.
[5] See The Times of Israel “Germany increases reparations for Holocaust survivors” November 16, 2012
[6] See Call, Charles. 2004. “Is Transitional Justice Really Just?” Brown Journal of World Affairs, 11(1): 101-113.
[7] (Observer,18.9.92).
[8] Makau, Mutua, 2002. Human Rights: A Political and Cultural Critique. Philadelphia: University of Pennsylvania Press.

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