Truth, Justice and Information

Richard Carver, University of Oxford

A couple of months ago I was in a village called Chisungu which is in the Zambezi valley in Northern Zimbabwe in the course of doing research for ARTICLE 19. I interviewed a woman called Mrs Chibagu. She had been living in the village 20 years previously in 1979, shortly before Zimbabweís independence. There was a Rhodesian Army military strong point in the village. She was suspected of being a supporter of nationalist guerrillas, so was required to report to the military every day. One day she didnít go to report and the soldiers came to her home and saw someone working in the fields. They shot her thinking it was Mrs Chibagu, in fact it was her mother-in-law. A few months later the party that Mrs Chibagu supported, ZANU-PF, won an overwhelming victory in the first post-independence elections. The new Prime Minister, Robert Mugabe, summoned the former head of the central intelligence regime, a man called Ken Flower. Ken Flower recounts in his memoirs that he was extremely nervous because one of the things that had happened during the election campaign was that Flowerís CIO had mounted an assassination attempt on Mugabe. In fact, he recounts, he was summoned to be offered to continue in his post as Director of the CIO under the new government. Flowers said to Mugabe : what about all the attempts we made to kill you? Mugabe responded by saying : that was the past. Then we were at war. Weíre going to draw a line underneath the past. Mugabe made many similar pronouncements in public. He was praised internationally for his statesman-like behaviour. But nobody asked Mrs Chibagu or the many many Zimbabweans who had suffered losses in the liberation struggle what they thought of this reconciliation from the top. The rationale for it was fundamentally flawed. Mrs Chibaguís mother-in-law was not a victim of war, or a combatant, she wasnít even mistaken for a combatant. She was mistaken for another civilian. She was caught in the cross-fire, she was deliberately murdered, even though she was deliberately murdered by mistake.

The reason I mention this case is because of the passage of time that has passed. Zimbabwe was chosen as one of the case studies in the report Iím doing, primarily because of events that happened a bit later and the failure of the Mugabe government to provide any credible explanation or any serious apology for the massacres that took place in Matabeleland in the 1980ís. The difference between those killings just a few years later and this event in 1979 is that the current regime is not responsible for the loss Mrs Chibagu suffered, but fundamentally that doesnít make a difference. What she wants still are two things: information about who carried out this act, preferably she would like justice as well, but at a minimum she wants to know the facts behind that and she wants compensation for her loss. Thereís been an awful lot of compensation paid out in Zimbabwe in recent years to war veterans, people such as government ministers who didnít get as close to the front line of the conflict as Mrs Chibagu and many others. Mrs Chibagu thinks sheís entitled to a share of it as well.

Itís not usual to see these questions of the past, truth, reconciliation and justice yoked together with the concept of freedom of information. Usually itís seen from a whole number of different perspectives. Itís seen in terms of justice, of building national reconciliation after a political transition and resolving conflicts, of compensation and restitution for losses that people may have suffered. Itís also seen in terms of some sort of public acknowledgement, an official acknowledgement of human rights violations that may have taken place. The question of freedom of information, the rights of people to facts about what happened in situations of transitions is a fundamental element in the right to freedom of information. Itís a fundamental right which cannot be compromised.

I would like to make two points. The first is that the right to information about these past events is an absolute right. Secondly, the production of this information doesnít presuppose any particular outcome, people are entitled to that knowledge.

In relation to the first point, when truth commissions first began to emerge they were particularly to do with uncovering facts that had been denied. They were first developed in Latin America to deal with the phenomenon of the Ďdisappearanceí, a human rights violation which by its very nature is an attempt to conceal the fact that any violation had taken place. They werenít really to do with uncovering the truth as to do with uncovering facts. The reason I make that distinction is that it seems to be fairly obvious that truth is a subjective factor. It may be that the truth for the military in Argentina is that they were conducting a fight to save a nation, to wager a war against communism. The fact that they took people in the middle of night and threw them into the sea from aircraft was for them part of that fight and in many cases they would still believe they were justified in doing that. But the point is that because of the investigations that have taken place they can no longer deny that these things did happen. Michael Ignatieff put it rather neatly when he said that the function of truth commissions is to narrow the range of permissible lies. It puts these things onto the historical record and people cannot pretend that they didnít happen.

The second point is that people are entitled to have this information whatever they then do with it. I have a particular problem, not so much with the way that it actually happened in South Africa, which arguably it had to happen in the way it did for particular historical reasons. What I have a problem with is that this model is now regarded as the best way of approaching questions of investigating past violations. I recall, because I was involved in this debate in the 1980ís, the way this argument developed. At that stage we were very unsophisticated in the human rights movement in the way we wrote the questions. We simply said that people have a right to know what happened in situations of gross human rights violations. The argument would then come back, usually from the new government in power, that they would like to do this, but they have an obligation to the nation as a whole to reconciliation and if we reveal the truth it will impede reconciliation. We then came back with a secondary argument which I still believe to be correct, that you canít have reconciliation until you have a full disclosure of the truth. What this has become 10 or 15 years later is a telescoping of the process in which you have truth and reconciliation as all bound up into one, the South African example is the classic one. At its worst, in the early stages of the TRC hearing, people were being asked to forgive on the spot if someone came forward trading their testimony for amnesty from prosecution. Then Archbishop Tutu urged reconciliation almost immediately between the people who had only just heard the gruesome details of what had happened to their families and the confessed perpetrators. That seems to be fairly grotesque. To be fair, a lot of people in the South African Commission thought it was grotesque as well and Archbishop Tutu was reined in. The problem is that Archbishop Tutu is a modern day saint if such a thing exists, the rest of us canít be expected to conform to those standards. There have been efforts by the families of prominent victims of the former security forces to bring legal proceedings to stop the TRC, because it was actually obstructing their right to justice. The second related problem with putting all this truth and reconciliation in one basket is that itís based on an anthropomorphic analogy, in other words seeing nations as human beings. We often talk in metaphors about nations coming out of situations of serious human rights violations, the need to heal. Nations are not people, they are composed of lots of different people who have a different interest in the exposure of facts. People want to see justice and to my mind thatís completely defensible. Whether itís possible in South Africa is a different question, but itís a question that has to be solved at a political level, itís not something that should be resolved in this truth finding process. On the other side, a section of the population, the former security forces and former supporters of the apartheid regime are alienated. They feel itís a political process, they feel itís a witch hunt aimed at them. I think thatís a wrong perception but that is how they see it. In other words whether the TRC has actually had a role in reconciling seems to me to be highly open to question. Does that mean therefore that the TRC was wrong and that it should not have played this role in uncovering the facts? Absolutely not, people have a right to know the facts, it did the best it could in the circumstances. The problem is that too many expectations were loaded onto it.

I want to focus on one particular area in which the TRC failed because itís quite important if you look at the way the example is being used elsewhere. The TRC was unable to deliver any significant new information about the political violence that took place particularly in the 3 or 4 years before the elections in 1994. One can contrast that with the Commission of Enquiry headed by Judge Goldstone which took place at the time and which did uncover very significant information. The TRC didnít really go beyond the findings of the Goldstone Enquiry. The problem is that in communities which were affected by that violence people actually donít want to know the truth because they are reconciling, the truth might make that impossible. This might seem at odds with what I was saying about people being entitled to information, but itís a real world problem. The reason I raise it here is because the call for a TRC has become a knee jerk reaction to a whole variety of different situations, such as Kosovo, Sierra Leone, East Timor, which bare far more resemblance to South Africa in the early 1990ís: the problem of unstructured, or semi structured violence that the TRC was unable to deal with, rather than the earlier centrally directed apartheid state repression which it was able to deal with. I support entirely the call for truth or information about what happened in these situations, but I would seriously question whether a TRC is the institutional mechanism that is best able to deal with it.

Finally I want to run through some of the other means available to uncover the truth. There are some advantages of at least the formal commission of enquiry Ė the power to summon witnesses, subpoena evidence which other means of investigation such as NGO investigation donít have. Thatís one of the reasons why thereís a tendency to call for these. But there are other means. The justice process itself may of course be a means of uncovering truth. Normally people see it the other way round. Normally truth is a sort of second best to justice. What you really want to do is see these people who did these awful things in the dock, but if you canít do that at least you want to know about it. But historically itís not always been that way round. If you look at the initial uncovering of evidence of Nazi atrocities which was carried out in the context of criminal prosecutions and even today the special prosecutors office in Ethiopia is combining a justice and a truth function. There are international investigations. The recent UN investigation in East Timor, the truth commission in El Salvador had a significant international dimension. Indeed there was a very important investigation that took place into the failure of the international community to respond to the Rwandan genocide, which uncovered important information of significance to victims of human rights violations. The institutions which have not really done this very effectively are the international criminal tribunals on Former Yugoslavia and Rwanda. The reason for that is essentially that they are overloaded with expectations in relation to the resources they have to carry out the investigations. Also, particularly in the case of Yugoslavia, the perception that this is a political imposition serving a political agenda, has probably made it even more difficult for the institutions to function.

Another model, one seldom discussed outside the region itís happened, is what one would call the central and east European model which is the opening of the files of former dictatorial regimes. This was done extensively in central and eastern Europe, essentially for two reasons: one because they were dealing with regimes that kept files in a very comprehensive way, secondly because these were regimes that fell in a very short space of time before they had time to destroy them. South Africa was another regime that kept files, but it fell in a much more protracted way and it was quite clear in the later stages before the transition that files were being destroyed. There was an interesting court case in which a prominent human rights lawyer applied to the courts to stop the destruction of these files. It was not that he wanted access to these files, because until the recent reforms there was, as there is in this country, a 30 year rule on exposure of information. The lawyer maintained that he had a right in 30 years time to access these files and therefore attempted to stop them being destroyed. Weíve got about another 26 years to wait to see if they survived.

Itís an important model, but there are all sorts of things wrong with it. There have been a couple of celebrated cases where people have been damaged by the information that has been released from these files which may have been inaccurate. People such as the then President of Poland, Lech Walesa, was a victim of attempts to discredit him because of information uncovered in secret police files. In the context of freedom of information, it seems to me that an emphasis on actually opening up the records of abusive regimes has not been given enough attention by the human rights movement internationally.

The question of the role of the media is very underplayed. In the example I mentioned earlier of South African violence in the early 1990ís, it was primarily media who provided the information which the Goldstone Commission of Enquiry used. The Cambodian genocide was almost entirely uncovered by media investigation and only subsequently taken up by other people. The media clearly donít only play a role in investigating current abuses, but they can also play a historical role.

There can be compensation processes. The Zimbabwean one was a dreadful one which was entirely corrupt. Thereís one going on in Malawi which is much better, where a national compensation tribunal established in the transitional constitution is making small payments to victims and is assembling a massive data bank of testimonies. There are other sorts of national institution other than truth commissions which can investigate. National Human Rights Commissions (HRC) or similar bodies can play that function. Itís something that is being discussed by the newly formed Northern Ireland HRC; the Ghanain HRC unusually has a certain limited mandate to investigate past human rights violations in its founding law, the Malawian HRC is looking at it. The Australian HRC has come a long way in investigating historic abuses against the Aboriginal population.

The problem that all these different sorts of approach have is a lack of financial support. Those who are required to fund these processes donít see the necessity of doing so. I argue very strongly that one doesnít have to justify the revelation of facts by reference to what is subsequently done with them. But thereís no doubt that if you are aspiring to engage upon a process of institutional reform, only the uncovering of the facts, understanding what went wrong will enable you to do that. I have a strong message to potential donors, that when someone comes to look for funds for this sort of enquiry, it is something that is extremely enabling and extremely supportive of future development. It is a worthwhile effort.