Award no. R000222777

Award Holders: Dr. Richard Wilson

Title: Reconciliation in South Africa

Full Report on Research Activities and Results

Award no. R000222777 Richard Wilson Reconciliation in South Africa

2. Full Report of Research Activities and Results

Background

After having written a monograph on ethnic revivalism and the social consequencesof civil war in Guatemala, I became more interested in questions of reconstructionand social memory-how past human rights offences were remembered and what therelationship was between official accounts of truth and individual and communitynarratives. This led me to focus upon the emergence of truth commissions inGuatemala-one funded by the United Nations and the other by the Catholic Church.The transnational character of truth commissions necessitated a comparative approachand both South Africa and Guatemala signed legislation for establishing a truthcommission in the same week in June 1994. My work became more comparative as Ispent 3 months at a South African university in 1995, funded by the British Council,and I was able to return to carry out a more serious research project in 1996-7, fundedby the ESRC.

This ESRC research project, titled Legal Strategies and Normative Orders focussedupon the impact of a new regime of human rights upon three levels of justice inSouth Africa: the Truth and Reconciliation Commission (TRC), criminal prosecutionsof human rights offenders (and especially the case of hunter Ndlovu) and localtownship justice institutions such as the Boipatong kgotla. I concluded from this workthat the system of justice and rights is highly fragmented in post-apartheid SouthAfrica, At the level of formal organization, it is apparent that state justice is notunified and coherently centralized, with certain levels such as the TRC followinghuman rights principles, whereas elements within the criminal justice system continueto torture criminal suspects, and popular courts both resist and are incorporated intopolicing structures. At the level of values, there are divergences between legalorthodoxy and popular legal consciousnesses on issues of revenge and retribution,and also convergences between human rights ideas and the social policy ofprogressive churches, especially around notions of reconciliation.

This research was not fully complete, and this present research project onReconciliation in South Africa was necessary to fill the gaps in the ethnographicmaterial. In particular, I needed to assess the impact of the final report (publishedOctober 1998), the payment of reparations to victims, and to get a greater sense of thelong term consequences of the TRCs work for those who had testified at hearings,and had findings made on their case by the TRC.

Objectives

All of the objectives listed below were thoroughly addressed in the research, even ifnot fully resolved. In addition, the reader is referred to the results section later in thisreport.

A key intellectual aim from the commencement of the project has been to extend thelong-standing debates and discussions within legal anthropology to issues of human

rights. This involvement taking the discussion of rights out of the heady heights oflegal and political theory, and looking at their concrete operation, that is, the sociallife of rights. Legal anthropology has developed the analytical tools and empiricalfocus for examining the context of human rights. It has long been concerned forinstance, with the relationship between legal processes and popular legalconsciousness (Merry 1990, Conley and OBarr 1990). Do people taking their claimsto legal institutions share the values of those institutions and how do popular ideasabout rights and justice change through their involvement in legal practices anddiscourses? Looking outside the context of legal processes, in what areas of localjustice are human rights ideas resisted, when are they appropriated and when are theysimply bypassed when other values are consider to be of greater priority? How couldthese insights and research priorities be applied to transnational human rightsinstitutions which have become so prevalent in the 1 990s?

A main objective of my original research proposal was to undertake a highlyethnographic and interview based approach to understanding the relationship betweenthe TRC and responses of victims and survivors of political violence. This wasrealised as I developed a close relationship with survivors in a case where securityforce personnel lured 4 ANC comrades into a disused mine shaft and then detonatedhidden explosives, killing three of the youths. Commissioners presented this case asthe zenith of reconciliation after the victims families forgave the sole survivor of anywrongdoing at the TRC hearings, but the implications were much more complex thanappeared at the public hearing.

I planned to focus upon local justice institutions to examine relational discontinuitiesbetween human rights and local notions of punitive vengeance, and this was achieved.I was able to chart new developments in Boipatong, where a local township court hadbeen operating since 1994, beating those suspected of petty crimes and turning oversuspects of more significant crimes to the police. This material would allow me totheorize the relationship between local and state and transnational justice institutions,and to get a better idea of the concrete operation of legal pluralism in South Africa.

Finally, I was able to state the policy oriented objectives of the research, throughparticipation in a conference in Johannesburg in June 1999, and in my appearancebefore a Commons Select Committee on International Development in December1998.

Methods

This research project involved one months intensive fieldwork in Johannesburg andin its surrounding townships-particularly Kagiso in the West Rand and Boipatong inthe Vaal.

In Johannesburg, I carried out interviews with staff in human rights NGOs, withjournalists covering the TRC, religious leader and most importantly with acting andformer employees of the TRC. The latter category provided much useful informationwhich they had been cautious to reveal earlier during their employment. I was alsoable to interview a high ranking member of the ANC national executive, JeremyCronin, in order to understand better the circumstances around the ANCs legalopposition to the publishing of the TRC Report.

In the townships around Johannesburg, I divided my time between two locales andcarried out 20 in depth interviews (lasting two hours or more) overall. I attended theBoipatong community court in order to assess its functioning in the new context ofhuman rights, and was able to follow up some fascinating developments which nearlyled to the demise of the court. This involved a case where a woman beaten by thecourt successfully prosecuted court members, and I was caught up in interviewing allthose involved in the case. In Kagiso, I spent long periods of time interviewing asurvivor who had testified to the TRC, Zandile Musi, and the families of the deadvictims of the West Rand Mine shaft case. In interviews, I gained much usefultestimony on how the families felt the TRC had treated them in making statementsand during the hearings, and on their responses to the findings made in their case inthe TRC report, which held high ranking apartheid government ministers responsible.

Results: Ethnography and Analysis

An engagement with human rights institutions may emerge less out of a resonancebetween value-systems and more from diverse agendas of individuals who decide topursue them through TRC procedures. In so doing, they become integrated into thoseprocedures; from taking statements, to testifying at a Human Rights Violations(HRV) hearing, to granting reparations and making findings in individual cases.Involvement with the TRC may result from a particular need of victims to clear theirname, and to use the public forum of the TRC to do so, rather than from a deepcommitment to the whole TRC agenda of reconciliation, nation-building and a cultureof human rights. The lesson from the case of Zandile Musi case is one which anumber of legal anthropologists such as Merry (1990) and Conley and OBarr (1990)have been making very clearly: that people become involved in legal processes for avariety of reasons which may be very distinct from what the law itself thinks it isdoing, and that their involvement does not necessarily mean a deep loyalty or affinityto a set of values.

What people see as valuable are the mechanisms, but why they want to participate inthose mechanisms may diverge significantly from the officials administering them.Conley and OBarr (1990:176) for instance, demonstrate how many litigants narratetheir side of a dispute in terms of social relationships rather than the rule-orientedthought processes of court specialists (judges, lawyers, clerks). Moreover, relationallitigants may have theories of evidence, proof, causation, blame and responsibilitywhich differ markedly from the official legal versions.

Procedural Pragmatism

The following discussion considers in detail an instance which appeared to illustratestraight-forwardly the TRCs own ideal of reconciliation between individuals at aHuman Rights Violations hearing. It was a case which Johannesburg commissionerswould refer to on a number of occasions as the apogee of the TRCs reconciliationprocess. The case of Zandile Zandy John Musi was heard on an unseasonably cold,overcast morning in November at the West Rand public Human Rights Violationhearings being held in the imposing gray buildings of Laretong Hospital. ZandileMusi, accompanied by his older brother, Mbulelo Musi, was subdued as herecounting the events of February 15, 1982 His story was as follows:

In 1982, Zandile Musi was 19 years old and at secondary school in Kagiso. This wasa time of politicization of the township and country-at that time the Kagiso ResidentsOrganization and the Cdngress of South African Students (COSAS) had just beenformed. With his close childhood friend Fanyana Nhlapo, Zandile Musi participatedin COSAS activities and at the Faith Mission Church. There he met Eustice BimboMadikela and Peter Ntshingo Matabane and like thousands of other young men inthe townships at that time, they decided to join the armed wing of the liberationmovement. In January, 1982, the boys expressed their desire to leave the country andreceive military training to Mfalapitsa Ephraim Tihomedi, a friend of Zandiles olderbrother Mbulelo who was himself in exile with the ANC.

Ephraim said that he would train them himself to carry out operations. Ephraim saidthey should wait for him at Leratong Hospital at 8 p.m. The four young comrades liedto their families-saying that they were going into Johannesburg to a Millie Jacksonconcert at the Coliseum. They even went so far as to buy tickets, but Ntshingosmother was suspicious and confiscated his and refused permission to go. In the endshe relented to his pleas. At 8 PM, Ephraim picked them up in an inconspicuouswhite van. Behind the wheel was a black man theyd not met before, with a large scaracross his face. The youths were taken to the West Rand mine shaft. Inside, Ephraimtook out an Fl hand-grenade and fitted the detonator onto the grenade. He left thehand-grenade with Ntshingo and left in a hurry, saying he was going to retrieve moregrenades.

There was a huge explosion and Zandile lost consciousness. The police came at about9 a.m. and took Zandile to Leratong hospital. The other three comrades had died inthe night. Zandiles leg was broken, his ears were bleeding and he has been partiallydeaf since then. He was taken by police out to a field where a policeman stuck a gunin his mouth and asked who had brought him to the West Rand mine shaft. Policementook turns jumping on his broken leg. Zandile was charged with possession ofexplosives and after two months in detention, he was given bail. He was eventuallyacquitted because a passing white policeman admitted that Krugersdorp police hadtortured him.

For over a decade, Zandile was ignorant of the events behind what had happened thatnight in February. In 1996 he learned from a South African Broadcasting Company(SABC) journalist that the driver with Ephraim, scar-face, was the securitypoliceman Joe Mamasela. The young comrades had been tricked by double agents oraskaris, former ANC combatants who had been turned by the security forces. Since1982, Kagiso township residents were suspicious of Zandile, as he was the onlysurvivor. It emerged in the hearing that relations were strained between Musi and thefamilies of his 3 fellow comrades who had been killed. After the explosion, thefamilies of the comrades did not visit Zandile Musi in hospital but they did attend histrial. Zandile felt that they had blamed him and he was plagued by guilt since he hadbeen the ring-leader and had put them all in touch with Ephraim.After Musis testimony, there followed the testimonies of the three sisters of thefallen comrades. They were all still living in Kagiso, as was Musi. Common to all ofthem was a previous suspicion of Zandile Musis role in their brothers deaths.

Behind the Scenes in Kagiso

It was uncommon that reconciliation was as apparent at a hearing as in the West

Rand mine shaft incident. This case exemplified better than any other what the TRCitself thought it was doing to facilitate reconciliation in the HRV hearings it heldaround the country: victims told their stories, the truth came out, families openlyforgave each other after years of resentment and reconciliation was there for all tosee.

I interviewed Zandile Musi and other members of the families in Kagiso in late 1998,and started to get a picture of where the TRC fit into their long process ofreconciliation. Zandile is now in his mid-thirties, married with two sons andworking as a taxi driver in Kagiso. His brother Mbulelo is Deputy Director ofCommunications of the Gauteng Provincial legislature. The family has prosperedunder the new ANC regime, but Zandile still feels his life has been ruined. Whenasked why he went to the TRC, Musi replied:

I wanted my case to be known and what happened to me. To appear before theTRC would help to remedy the misery of my life. I wanted the families f the othervictims} and the world to know. . . I had avoided them. I had always blamedmyself for what happened and didnt know how to start with them. The TRC wasan avenue that could make it possible to convey that.

The attendance of some members of the family had only been made possible bydevelopments earlier on that year. Simmering hostility between Musi and the familiesof the three dead comrades, began to break down in early 1996 due to the interventionof an SABC television journalist, Reggie Morobe, who was making a program on thecase. Morobe was hoping film a meeting between the families and the perpetratorEphraim for his documentary on reconciliation for a current affairs programNewsline.

The timing of events was fortuitous for Musi. When asked whether he felt that he hadbeen forgiven by the other families before the hearing, during or after, he replied:Before-I could see they had forgiven me before we went to the TRC. I continued,So the TRC was a public expression of what had already happened privately? Musicommented, Yes. And it continued afterwards. The TRC said theyd arrangemediation between the families but they didnt. There was no further communication.But afterwards we all had a meeting here at my brothers house over a weekend. Wejust sat here and talked and talked.

Interviews with relatives of the three dead comrades showed that they were not fullyconvinced. Ntombi Emily Zanele, the younger sister of Fanyana Nhlapo said:Zandile came to explain to us what had happened in 1996, but our family didntunderstand. After the TRC hearings, we saw that Zandile was telling the truth. Welistened, but others did not. Myself and my aunt were the only ones to attend and wetold our family about the hearings, but they didnt want to understand. They weresuspicious of Zandile and think he got money and used it for himself. I then asked,Do you think Zandile has finally cleared his name in Kagiso? and Emily Zanelereplied, No . the community blames Zandile. They say, How was it that you survivedand they died?

If one delves deeper into the ideas around reconciliation which Musi and the threehold, one gets a sense that the values of the TRC were not successfully transmitted toall participants. Buzzolis (1998) use of a Durkheimian analysis of collectiveeffervescence to explain how the new values of reconciliation are transferred to

audiences at TRC hearings have to be put into context. Aspects of the HRV hearingsare highly ritualized in order to create new identities and to engender newdispositions of forgiveness, but we must take into account not only how values arediffused, but also how they are received. People are not ideological dupes or merevessels of discourses as they are portrayed in many dominant ideology theories andtheir post-modern successors. This was apparent when I asked Zandile, Did you havethe same ideas about reconciliation as the TRC? and he replied, What was theconcept of reconciliation of the TRC? I dont know.

The participation at the TRC hearings had not, in this case, led to victims forgivingperpetrators and forsaking revenge. On October 31, 1998, the TRC Final Report waspublicly released and I obtained a copy quickly and went to Kagiso. On pages 582-3of Volume 3, Zandile learned for the first time who had applied for amnesty for themurders and what the findings of the Commission were. In his case, the findings werequite dramatic and revelatory since they were linked to amnesty applications:

The Commission finds a number of Security Branch operatives responsible for thisoperation and, in particular, Brigadier Willem Schoon, the Head of the SecurityBranch, who authorised the operation that led to the commission of gross humanrights violations. The Commission finds further that Mr. Christian Siebert Rorich,Mr. Abraham Grobbelaar, Mr. Joe Mamasela and Mr. Ephraim Mfalapitsa wereresponsible for carrying out the operation, for the deaths of the three COSASmembers and the gross violation of human rights.

The Commission finds the former state, the Minister of Police, the Commissionerof Police and the Head of the Security Branch responsible for the gross violationof human rights. The Commission finds that, through their actions, the former stateis vicariously responsible for criminal conduct in that it secured these deathsthrough extra-judicial means.

Musi had only ever known of the actions of Ephraim and Mamasela, and learned forthe first time about the involvement of three white Security Branch police officers.Zandiles immediate response was to say, Those people did not apply for amnestyfor reconciliation, only because they knew what would happen. They would beprosecuted. Then he asked me who I thought he should sue; the individuals who hadapplied for amnesty or the Ministry of Safety and Security as the institution heldcriminally responsible. The hostility of the relatives of the dead comrades was evengreater than that of Musi. Bimbos sister Maide said: It is still unbelievable for methat he died. I am still angry. If I see Ephraim, then I would have to kill him. I hatethat person.

Human Rights. Local Justice and Gender

Since the 1980s, human rights and local justice had been opposed to one another, aspeoples courts were blamed for many of the excesses of the anti-apartheidmovement. In the 1990s, this opposition intensified, as human rights became moreentrenched within South African legal practice, and there was more jurisdictionalconfrontation between local courts and state courts influenced by international law.During the life of the TRC, many customary courts in rural areas and township courtsin urban locales actively opposed the reconciliatory activities of the TRC on thegrounds that it did not pursue their vision of justice as punishment. One Boipatongcourt member told me The TRC-its a sell-out. This material is very important inorder to get a sense of the context in which the TRC, a fleeting body, operated, and inparticular, to see how local justice institutions dealt with issues of past conflicts.

In late 1998, and 1999, the tide of legal reform in South Africa seemed to be turningagainst local courts. At a national level, the TRC Final report released in October1998 (p.327) recommended that the Ministry of Justice eradicate physical punishmentin chiefs courts: Despite the fact that such courts do not have criminal jurisdiction,the defacto position is that, in many areas, this right has been assumed and corporalpunishment and illegal sanctions are routinely imposed. This practice must be endedas a matter of urgency. The TRC also urged the state to suppress township courtswhen it recommended that steps be taken to inhibit the reappearance of the peoplescourt phenomenon.

In 1998, things began to go awry for the Boipatong kgotla, or local court. Just weeksbefore the publication of the TRCs final report, two of its leading officials AdonsRamaele and William Ubane were found guilty of indecent assault and grievousbodily harm and were sentenced in the van der Bijl Park District Court. Their defenseargued that they were acting on behalf of the community, but this time theAfrikaansspeaking magistrate rejected the rhetoric of a separate justice system forblacks. Magistrate J.A.van Staden called the local court officials bullies and liarsand sentenced them to a year in jail or a fine of 2000 Rands (then US$225) each. 78-year old Ramaele paid up, but Ubane was languishing in jail in late 1998 when Iinterviewed Boipatong residents about the case.

The story behind the District Court case was a fascinating one and its complexitydemonstrates the contradictions and continuities within state-informal law relationssince 1994. The Boipatong kgotla had been under pressure from both women and mento hear more domestic cases. It had also become increasingly punitive especiallytowards married women (but never men) found guilty of adultery and minor domestictransgressions. Matters came to a head on June 5, 1997, when 38-year old ElizabethMahiangu was brought to the kgotla by her own mother, who accused her of neglectof an infant. Chairman Ramaele found her guilty and the court sentenced her to 50lashes with a sjambok. Ms. Mahiangu suffered a horrible beating, was hospitalized fornearly two weeks, and photos of the extensive injuries to her buttocks and legs wereshown in court.

Ms. Mahlangu received support from a number of disaffected groups in her campaignto get her case investigated by the police and heard in the District Court. She wasencouraged by politicized women of the township, including an ANC WomensLeague activist and local chairperson of Women Against Violence Against Womenwho had been beaten herself in 1997 by the kgotla, allegedly for adultery with a

married man. Growing resentment among women was supported by the ANC YouthLeague, whose members also chafed at the bit of elder male control. In the 1980s,popular courts run by ANC comrades had generated a large part of its constituencyfrom women who were unhappy with gerontocratic township courts, and this politicalaxis reemerged in Boipatong in the late 1990s.

In his decision, the magistrate accused the Africans of practicing jungle justice (VaalVision Oct. 23, 1998), illustrating how the present legal regime bears manycontinuities with apartheid legality. What was novel however, was how the magistrateinvoked human rights in his decision. Human rights discourse would not have beenarticulated in a case like this before 1994-indeed the case would probably have nevercome to the District Court at all but would have been referred to a section of the blackadministrative system.

Local residents sought to appeal to human rights also, saying that beating women wasagainst the new Bill of Rights in the South African Constitution. However, digging alittle deeper, residents seemed to be wrapping local moralities within human rightsdiscourse. They also stated that men beating women was against traditional Africanculture, but that men beating other men was acceptable both within tribal law andhuman rights. Many Boipatong residents, including two women beaten by the court,continued to support the existence of the kgotla and to recommend that it continuebeating young, male miscreants. The moral language ofcustomary norms rather thanwritten positivized rules, of a morality that demanded that men respect and physicallyprotect women, even through a punitive township court, was still relatively intact, buthad now been repackaged within a new language of human rights. These discursiveassociations seemed quite superficial, and may be little more than a new idiom for amuch more established language of justice and morality. Rights talk is vague enoughto cloak a variety of claims and entitlements (which may not be rights-derived at all),and because of this human rights provided the idiom for urban Africans to enter anold-style Afrikaner magistrates court, which many boycotted as a symbol ofapartheid only five years earlier.

The Mahlangu case reinforces my assertion that human rights presently serve acentralizing project, drawing local ideas and institutions of justice into the state, andexpelling all that does not fit. Ms. Mahiangu was supported by the members of theBoipatong Community Policing Forum, and the van der Biji Park magistrate in hissentencing judgment instructed the kgotla members to stop their nonsense and jointhe Community Policing Forum instead. The policing forums were set up in 1994 bythe new government as a way of making the police seem more accountable andlegitimate and to eradicate township courts and vigilantes by drawing them intoformal structures. In Boipatong, the policing forum and the kgotla functioned side byside, but the deep structural crisis of criminal justice in South Africa meant that suchco-existence was unstable and the state has acted in a number of ways to centralizeand unify its authority.

In 1999, the Boipatong kgotla still limped along, holding only a few meetings a week,and refusing to hear domestic cases. It confined its hearings to theft and assault cases,and it had at least temporarily stopped beating those found guilty. Despite theirdistrict magistrates indignation, van der Biji Park police have kept working closelywith the kgotla, which is now more prone to just hand over suspects to the policewithout trying or sentencing them. Thus, despite having been battered by one arm ofthe state, the urban court is at another level even more integrated into the state

criminal justice system than before.

Human rights Revisited

This final addresses some theoretical problems in conceptualising human rights, inthe light of the intervening ethnographic material on the Vaal and Kagiso.

Until the early 1960s, the dominant approach in the field of legal anthropologyproposed an equivalence and continuum between all types of legal rules and socialnorms, and operated with a static and isolationist view of customary law which tooreadily assumed the existence of different systems. Over time, it moved fromcodifying customary rules to advocating a processual approach which portrayed locallaw as characterized by open and seemingly limitless individual negotiation andchoice-making.

In the early 1970s influences from within critical legal studies and the cross-disciplinary law-and-society movement drew attention to the dialectical relationshipbetween state institutions and local normative orders and the relations of dominanceand resistance between them. Marxist legal anthropologists such as Snyder (1981)argued rightly that the processual approach treated dispute processes as too self-contained and thus tended to ignore the wider political context. Local moralities andnorms were in a subordinate relationship to state law, but they resisted and created acounter-hegemonic bulwark, demanding recognition on their own terms.

There are a number of conclusions we can draw from my research which run counterto conventional approaches to discourse or hegemony. The approach I adopt drawsfrom the neo-Weberian writings of Abercrombie, Hill and Turner (1980, 1990),which challenge the influence of Gramsci and the concept of hegemony in theanalysis of legal ideology. In the late 1970s, many marxists adopted a very strong,coherent and totalizing view of hegemony in order to explain why the industrialclasses of capitalist societies apparently accept the core assumptions of capitalism.Their answer lay in the way in which capitalism could create hegemony, or a coherentworldview via dominant state and social institutions. Yet there was very littleattempt by marxists to empirically verify whether the dominant ideology did indeedincorporate subordinate social classes: that is, to see if at the level of transmission andreception, ideology worked as it was theoretically expected to work.

The Dominant Ideology Thesis (1980) provided an important counter-point, which isstill relevant today, for understanding how people pragmatically participate inpolitical and economic processes, but not necessarily take on the values of dominantsocietal and state institutions. Abercrombie et a! argued that the dominant valuesystem is not internally consistent, and that major parts of the ideology are rejected byindustrial classes to the extent that one may speak of a dual consciousness betweensocial classes.Contrary to the accepted view in both Marxist, Durkheimian functionalist andParsonian thought that consensus results from common values, these neo-Weberianswere arguing that the system could function no more than a pragmatic acquiescenceby the majority. This analysis of values is appropriate for thinking about the Musicase and the TRC in South Africa. Involvement in the TRC is pragmatic rather thannormative or ideological. People may pragmatically perform roles and take part inHRV hearings and reparations procedures, but not necessarily accept the core human

rights assumptions of the institution. They may have their own values (e.g. on thedeath penalty, or reconciliation) to such an extent that we might speak of a dual legalconsciousness. Victims therefore participate for their own reasons, some of whichmesh with the new institutions and language of human rights, whereas others divergesharply. This divergence seems to be working less at the level of conscious resistancethan a sheer lack of awareness of attention to, and even interest in the values whichvictims were supposed to subscribe to. So while it is clear that there is a hegemonicproject around human rights which the TRC pursued in tandem with other stateinstitutions, it is not at all clear that the reception of the main targeted constituency(urban, ANC-supporting blacks) conforms to the intended pattern. On television or atthe hearings it might all seem to work nicely, but listening to what victims are sayingduring in-depth interviews can take us to an unexpected place that is between (or,perhaps, beyond) both acceptance and resistance.

If many urban blacks attending TRC hearings are only pragmatically acquiescent, andmany others, as we will see, actively resist the dominant human rights ideology, thenwhat was the point of the TRCs hegemonic project? Again, neo-Weberian sociologyreverses conventions and argues that ideology does have important effects, but theseare primarily upon the dominant rather than the subordinate classes. Hill (1990:2)writes that What has been important for the stability of capitalism is the coherence ofthe dominant class itself, and ideology has played a major role in securing this.

In thinking about human rights in democratising countries in the 1990s, researchersneed to preserve the idea that many states engage in centralizing efforts to resolvetheir hegemonic crises, but we can no longer accept that there is always an inherentasymmetry between centralizing and pluralizing processes. Instead of the starkpolarity of dominance and resistance which reduces the complexities of a historicallyproduced political-legal context, we must turn our attention to shifting patterns ofdominance, resistance, acquiescence, and avoidance which occur simultaneously. Aswe have seen in Boipatong, local courts are both connecting up with policingstructures and bypassing them in order to exercise a certain degree of autonomy tojudge and punish. The Boipatong imbizo was simultaneously working with the van derBiji Park police, while being prosecuted and sentenced by the magistrate who toldthem, in the name of human rights, to cease their activities and join the CommunityPolice Forum. There are multiple connections between state institutions, religiousorganizations and local courts, to the extent that we see a splintering of the unifiedfields of state and society, and an eradicating of their hard boundaries.

Diverse social fields in African countries are too complex and emergent to beconstrained by any explanation which sees law and society as a priori structuralcategories to be understood by a single explanatory framework. Instead of twocoherent unified systems which are locked in a structurally determined struggle, wesee combinations of actors and collective groups who are involved in the productionof norms and who create new historical experiences and experiences of history. Thedirection of social change in post-apartheid South Africa, what Touraine (1995) refersto as historicity, is the product of the social action of individuals and collectiveactors (political parties, local courts, religious organizations etc.) engaged in thereflexive self-production of society.

The post-apartheid South African regime is in an agonizing process of statereformation; its ANC ministers are unifying, consolidating infrastructure, anddesperately trying to transform institutions such as the police, prisons and

magistrates courts historically tainted by their involvement in administeringapartheid. This project of state centralization and national unification is the mostimportant thing to realize about the first post-apartheid regime. It found itself opposedto legal pluralism and a dual system of justice and administration for blacks andwhites, which it set about dismantling. Yet this shift from one type of hegemony andgovernmentality to another-from separate development and racial and culturaldifference to equality, rights and universal values-created a legitimacy crisis.

Human rights are a central discursive idiom of governmentality in the New SouthAfrica, and my research has traced how these formulations circumvent local valuesaltogether (pragmatic proceduralism) or are repulsed by them, as occurs in localcourts. The social processes described work in different directions simultaneously,both reinforcing and obstructing the introduction of human rights values into acontext of semi-autonomous legal and moral fields. This view allows us move beyondstark formulations of state and society, to chart the concrete consequences of socialaction which contest historicity in the area of justice and reconciliation.

Activities

While in South Africa, I was a Visiting Associate in the Department of SocialAnthropology at the University of the Witwatersrand in Johannesburg. While in thecountry, I kept in close touch with a network of social scientists and historiansworking on the TRC and related issues.

After my period of ethnographic fieldwork, I presented the results of my research inthe following contexts:

Manufacturing Legitimacy: the TRC and Human Rights in South Africa.Commissioning the Past Conference. University of the Witwatersrand, Johannesburg.June 1999.

Reconciliation and Revenge in South Africa. Close Encounters Conference.Stanford University. USA, April 9th-10th 1999.

Conflict and Reconciliation in South Africa. Constitution-Making in ConflictSituations. Rockefeller Center at Villa Serbelloni, Bellagio, Italy, February 20th-25th

1999.

Reconciliation and Reconstruction in Post-Conflict Countries. Commons SelectCommittee on International Development, Palace of Westminster, UK, December 1,1998.

Outputs

Publications

Reconciliation and Revenge in South Africa: rethinking legal pluralism and humanrights. Current Anthropology. Volume 41, Number 1, February, 2000.

Trauma, Liminality and Symbolic Closure: the legacy of political violence in SouthAfrica. Co-authored with Brandon Hamber, in Edward Cairns (ed.) Forthcoming1999. Social Memory in Post-Conflict Situations. Proceedings of the AmericanPsychological Association. London: MacMillan.

Human Rights and Globalization: Local Justice and the Truth and ReconciliationCommission in South Africa. Forthcoming, 2000. In Suad Joseph (ed.) Women,Human Rights and Islam. Berkeley: University of California Press.

Justice and Legitimacy in the South African Transition. In Alexandra de Brito andCarmen Gonzalez (eds.) Forthcoming. 2000. The Politics of Memory: Three Decadesof Transitional Truth and Justice. Oxford: Oxford University Press.

I am presently writing a book entitled The Politics of Truth and Reconciliation inSouth Africa. A proposal is being considered by the Law and Society series ofCambridge University Press and a manuscript will be delivered by December 15,1999.

Impacts

I was fortunate to be able to provide advice to those shaping British foreign policy,when asked to appear before the Commons Select Committee on InternationalDevelopment at the Palace of Westminster on December 1, 1998. The committee wasconsidering issues of Reconciliation and Reconstruction in Post-Conflict Countriesand the final report included large sections of transcripts from my session.

Future Research Priorities

I am presently writing the last 2 chapters of my book on the subject of human rights,truth commissions and local justice in South Africa. Writing up the last of the resultsof my research over the past 4 years will occupy all of my time for the next threemonths, and I have not fully considered what research plans might lie beyond thatperiod. However, I am interested in following up a theme which was not fullydeveloped in my present research, namely the place of race within the South Africanjustice system between the years 1990-2000, to examine constitutional judgements,the impact of truth commissions and key criminal cases. What reforms havegovernments and legal professions undertaken to end institutionalized racism (withinboth society and the legal profession) and what have been the implications at the levelof the living law of the criminal justice system and for popular perceptions of law?

Citations

Abercrombie, N., S. Hill and B.S. Turner. 1980 The Dominant Ideology Thesis.London: Allen and Unwin

Abercrombie, N., S. Hill and B.S. Turner. (eds) 1990. Dominant Ideologies. London:Unwin Hyman.

Buzzoli, Belinda. 1998. Public Ritual and Private Transition: the TruthCommission in Alexandra Township, South Africa 1996, African Studies Vol. 57,No.2.

Conley, John and W. OBarr. 1990. Rules versus Relationships: the ethnography oflegal discourse. Chicago: University of Chicago Press.

Hill, Stephen. 1990. Britain: the Dominant Ideology Thesis After a Decade. InAbercrombie, N., S. Hill and B.S. Turner. (eds) 1990. Dominant Ideologies. London:Unwin Hyman.

Merry, Sally Engle. 1988. Legal Pluralism Law and Society Review 22 (5): 869-901. 1990. Getting Justice and Getting Even: legal consciousness

among working class Americans. Chicago: University of Chicago Press.

Touraine, Alain. 1971. The Post-Industrial Society. Tomorrows social history. class,conflict and culture in programmed society. Tr. Leonard Fox Mayhew. New York:Random House, 1995. Critique of Modernity. Oxford: Blackwell.

Truth and Reconciliation Commission Report of South Africa Report. Vol. 1-5. 1998.Cape Town: Juta and Co. Also on Internet site http://www.truth.org.za/