Justice: One or Many? Writing from New Symposium 2007

On Justice, Memory and Compassion

Tony Eprile

Preface

I feel it is important, in seeking to understand another’s argument, to have some sense of the ground upon which he or she stands and whence the argument proceeds. Here is a brief background on my connection to the theme of justice, to stand as preface to my paper on Justice, Memory, and Compassion: I come to this topic as a fiction writer who has written a novel with a central focus on memory, the narrative set in three crucial decades of South African history: the 1970s, ‘80s, and ‘90s. For the novel’s purposes, the ‘70s is the period of “petty Apartheid”—the quotidian humiliations of legislated inequality—and of the protagonist’s schooling, with the intention of showing how the authorities promote a falsified history in order to justify present-day actions and legislation. The ‘80s are the period of war (in Namibia, Angola, and the black townships of South Africa) and human rights violations—witnessed, and unwittingly participated in, by the protagonist. And the ‘90s are the period of the Truth & Reconciliation Commission and the protagonist’s first tentative steps towards self-healing and a closer connection—both personal and metaphysical--to others in this transitional society. Among my goals in the book is to provide a nuanced exploration of individual responsibility in a society based on social inequality and repression, a close look at how memory can be a tool for oppression or for justice, and a portrait of how conflicting memories can be “accurate” within the context of different perceivers of a past “truth.” When I toured South Africa in 2005 upon the release of the novel there, I was often asked what I thought of the Truth and Reconciliation Commission. (My novel raises some questions about the absence of reconciliation hearings for rights abuses by the South African army while in Namibia and Angola.) The questioners themselves frequently revealed a sense of disappointment at the imperfections of the TRC process, a level of expectation that suggests a failure of memory too, since few people in 1989 would have anticipated the degree of justice and reconciliation achieved in this country within a mere decade. Noticeable, too, was the degree of South Africans’ concern for how the rest of the world perceives and judges the TRC, as if ratification from outside the home context would help put their own qualms at rest. Another orientation to the theme of justice arises out of my having at various times either taught creative writing in American prisons, or supervised students who were doing so. I recall from my first prison-teaching experience in Cranston, RI, how many of the prisoners—on learning my South African background—identified themselves as “political prisoners.” I had grown up in an anti-Apartheid family, a number of family friends had been jailed for their political activities, and we ourselves were both watched and our home raided by the police, and so my sympathies tended to fall more on the side of the incarcerated than that of the society that jailed them. Still, it struck me as ludicrous when a man who had forcibly detained and sexually assaulted 14 women in a laundromat referred to himself as a “political prisoner.” Yet, there was a peculiar truth to such statements in aggregate (and if one did not look too closely at a particular crime), since African-Americans such as this man were represented in disproportionately high numbers in the Rhode Island prison system. The longer a prisoner had been in jail, the more determinedly he adhered to the notion that society had rejected him for political reasons…suggesting, at the very least, that the system was not doing a very good job of encouraging a true sense of remorse. As a fiction writer, I feel much more comfortable with the means that fiction offers to examine and describe questions of justice than with a position paper, since ambiguity and nuance are the lifeblood of fiction but all too often seen as “loopholes” in legal discussions. I offer here both a “position,” and a brief fable.

Justice, Memory, and Compassion

Before going into the details of my thoughts on justice and its relationship to memory and compassion, it’s best that I begin by discussing my assumptions and prejudices as to what “Justice” should comprise, what its aims and effects should be. The assumption that underlies most of the laws in the Western world—in fact, of the world in general—is the close correlation between punishment for wrongdoing and official justice: i.e., “justice” is retributive, an eye for an eye, five years in jail for robbing the corner store, lifetime incarceration or hanging for war criminals and violators of human rights. This system is viewed to work through 1) discouragement before the fact (“if you can’t do the time, don’t do the crime”); 2) the chastened wrongdoer reflecting on his misbehavior during the many hours of boredom and physical and sensory deprivation that prison offers; and 3) “rehabilitation,” which, increasingly in the United States, is left up to the criminal to effect himself, much like a child who has been rapped sharply on the knuckles is anticipated to improve his handwriting. This system is also expected to satisfy the victims of crimes and human rights violations by offering the consolation of seeing the wrongdoer so labeled and punished. “We live in a moral universe,” Anglican Archbishop Desmond Mpilo Tutu stated in an interview regarding South Africa’s Truth and Reconciliation Commission, “and it is up to us to restore a balance that has been knocked askew.” My own preference for a model for justice is one that seeks—perhaps quixotically, certainly idealistically—to restore that balance; i.e., restorative justice rather than retributive justice. The starting point for this view of justice is that both the victim(s) and the wrongdoer(s) have been sundered from society via an act of violence. The crime is one done by humans to humans, and both participants need to be healed for their own benefit and that of the community as a whole. Most extant justice systems take a more abstract position: that crimes are committed against the state or “the people”, the individual(s) who have committed the offense being “perpetrators of a crime” who need to be removed from society. The PFI Center for Justice and Reconciliation (Washington, D.C.) articulates the principles that form the foundation for Restorative Justice [1] as follows:

1. Justice requires that we work to restore those who have been injured.
2. Those most directly involved and affected by crime should have the opportunity to participate fully in the response if they wish.
3. Government's role is to preserve a just public order, and the community's is to build and maintain a just peace.

The website goes on to characterize Restorative programs by four key values, with attached definitions (click on title term for link):

1. Encounter: Create opportunities for victims, offenders and community members who want to do so to meet to discuss the crime and its aftermath.
2. Amends: Expect offenders to take steps to repair the harm they have caused.
3. Reintegration: Seek to restore victims and offenders to whole, contributing members of society.
4. Inclusion: Provide opportunities for parties with a stake in a specific crime to participate in its resolution.

While there are ongoing programs of restorative justice in many countries in the world (including the U.S), the largest, most sustained, and best-known program has been South Africa’s Truth & Reconciliation Commission, which was mandated by the Promotion of National Unity and Reconciliation Act of 1995 and which presented its final report in October, 1998. The TRC began as a compromise solution as part of a negotiated change of government between formerly warring sides. A Nuremberg-style series of trials of human rights abusers was unacceptable to the ruling party (and would almost certainly have resulted in a military coup even if the Nationalist Party had agreed to it), while a blanket amnesty (as Pinochet of Chile had given himself, his ministers, and the army) was equally unacceptable to the liberation movements. The settlement offered amnesty on the basis of full disclosure of crimes and human rights of a political nature (a policeman who murdered an activist could receive full amnesty for the murder but be prosecuted for theft if he stole the man’s wallet for personal gain). It began as a political compromise, but its approach has been articulated as an ethical and moral response by its commissioners (such as Archbishop Desmond Tutu and Alex Boraine), the justices who mandated the program (Ismail Mohamed, Dullah Omar), and others. The TRC hearings fill five volumes, and it has been the subject of numerous books, papers, documentaries and other films. I am going to just touch here on some of the TRC’s connections to Memory and Compassion.

Memory

One of the remarkable aspects of the TRC has been the notion that publicly enacted and articulated memory (referred to as “truth”, a more problematic term) is, in itself, an act of justice. Through telling one’s story, the human rights victim is helped to again be part of the fabric of society. Through telling his story, the human rights abuser is set upon the path of rapprochement and healing [2]. In the case of the abuser, this disclosure has to be complete and without fudging of the facts…both to have received amnesty but also to fully partake in the process of reconciliation. Desmond Tutu said “there’s no future without forgiveness,” but he also said: “Forgiveness in turn depends on repentance, which has to be based on an acknowledgement of what was done wrong, and therefore on disclosure of the truth. You cannot forgive what you do not know." For the victim, articulation of devastating and irreparable loss, of indignities suffered, may allow a sense of return to society and a sharing of humanness. This process is movingly described by Pumla Gbodo-Madikizela, a TRC commissioner, in the following personal account:

And also of punishment, since many of the policemen who described their violent and vicious acts found themselves shunned by their society, their marriages often foundering, themselves psychologically tormented by having held up a mirror to their own blighted souls. “The Commission frequently held outreach meetings in different communities. In the course of one of these meetings I noticed a woman in the audience sitting defiantly with her back to the stage as my colleague delivered the official TRC message. I understood the meaning of her body language, but I went down the hall to find out why she was so distressed. When I approached her, she turned away from me, then got up and walked out of the hall. As she walked she started to speak, first muttering then blurting out, 'Why did you come here? Why did you come here?' It was a brief moment of drama: everyone in the audience turned towards us as I followed her outside. She began to cry and gesturing with her hands said, 'Have you come here to hurt us? Just tell me, have you come here to revive our scars?' She went on tearfully to tell me how she had forgotten, how she had 'put grass over the past', using a Xhosa expression, and moved on. 'And now you want us to remember? Is this going to bring back my son?'

We sat under a tree and I listened to her venting her anger at the Truth Commission, 'a pointless exercise', as she called it, since the TRC was not going to bring her child back. I took her hand and held it between my hands, more to try and take her pain and cleanse myself of the guilt I felt for causing her such anguish, than to comfort her. I asked if I could take her home. As we drove to her house I felt the inadequacy of the word 'sorry' and the frustration of being a messenger who would be here now and gone the next moment, who would not stay to pick up the pieces, but move on to cause more pain. It was an unhappy emotional responsibility. She invited me into her home--two chairs, a table and a cupboard in the front room and a double bed in the small remaining room of the house. And this is where I saw the unpredictability of testimony as she started to tell her story with vivid detail and with amazing calm:

My son was eleven years old. He had come home during his school break at ten o'clock. I was sitting right there where you are sitting, just sitting exactly where you are sitting in that chair. He walked in dressed in his school uniform, went to the cupboard over there and opened the drawer to get a knife, and cut himself a slice of bread. He is doing all of this in a rush. He is like that when he comes home during break. He got some peanut butter from the top and spread it on his bread. He put the bread back, but there were crumbs left on the cupboard, and the knife--still smudged with peanut butter. He ran out. He is still chewing his bread and holding it in his hand. It wasn't long--I heard shots outside. Some commotion and shouts. Then I'm hearing, 'uThemba, uThemba, mama ka Themba nanku Themba bamdubule!' [Here is Themba, Themba's mother, they have shot Themba!]. I went flying out of this house. Now I am dazed. I ran, not thinking. My eyes are on the crowd that has gathered--Here is my son, my only child. It was just blood all over. My anguish was beyond anything I ever thought I could experience. They have finished him. I threw myself over him. I can feel the wetness of his blood--I felt his last breath leave him. He was my only child.

This testimony is a compelling example of how witnesses remember the concrete details of the traumatic event: the crumbs left on the cupboard, the knife smudged with peanut butter. It is as if each image is etched in the mother's memory, taking on a new significance in the telling. 'That chair' on which I was sitting, the jar of peanut butter that was always on the cupboard, all these items become symbols of the little boy's 'last act' in his home. Even the crumbs are treasured as a sacred memory. The tenses defy the rules of grammar as they cross and recross the boundaries of past and present. ‘He ran out. He is still chewing his bread. ... Now I am dazed. I ran...' The final moment comes when she recalls seeing her son's lifeless body: 'Here is my son.' With a gesture of her hand she transports the moment from the past into the present, as if the floor in her front room was the place where it all happened, as if her lifeless son's body were lying there at that very moment." [3 Memory and Trauma Pumla Gbodo-Madikizela (from Truth and Lies, Jillian Edelstein, The New Press, 2001)] Ms. Gbodo-Madikizela goes on to ask whether Mrs. Plaatjie was better off before she told her story than she was after telling it, answering her own question more broadly with the argument that “it depends on how the past is remembered. If a memory is kept alive in order to kindle and cultivate old hatreds and resentments, then it is likely to culminate in vengeance. But if a memory is kept alive in order to transcend hateful emotions, to free oneself or one's society from the burden of hatred, then remembering has the power to heal.” Elik Elhanan, a young Israeli soldier who became a conscription refusenik and member of Combatants for Peace following the murder of his sister by a suicide bomber, argues that seeking revenge for the murder of his sister would be “doing something very terrible to her memory also… My sister deserves better than to be confined to a dark place, as an object of sadness. Or to be limited to a reason to be angry, to hate, to fear." [4. Philip Weiss, The New York Observer. Jan. 11, 2007.]

Compassion

Antjie Krog describes how she and other South African journalists covering the TRC hearings would often be in tears, earning them the mockery of foreign journalists for their lack of “professionalism.” As a South African, Krog could not be dispassionate about the events she covered, and empathy was a necessary part of her own and the nation’s healing process. What was not apparent to the journalists whose profession had inured them (at least while working) to the sufferings of those they reported on, was that the entire process of the TRC would have been pointless if it did not elicit the empathy of its participants and onlookers. This point is thoroughly covered in a recent book by Lynn Hunt on the “inventing” of the notion of human rights. Hunt discusses the formative influence of the Third Earl of Shaftesbury’s Characteristics of Men, Manners, Opinions, Times (1711) which presents the imaginative powers of sympathy as a means of distinguishing between right and wrong. [5. I’m paraphrasing here from Joanna Bourke’s review of Inventing Human Rights in Harper’s, May, 2007.] It’s worth distinguishing here between empathy and compassion. Jane Harris Aiken defines compassion as “a sympathetic consciousness of others' distress with a desire to act to alleviate it.” [6. Aiken, JH. Clinical Law Review, 4:1, Fall 1997. “Striving to Teach ‘Justice, Fairness, and Morality.’”] Desmond Tutu argues similarly: “Compassion is not just feeling with someone, but seeking to change the situation….If you are going to be compassionate, be prepared for action!” Compassion is to be applied to both the victims of human rights abuses and those responsible for the offense, with the injunction that we, as members of society, do everything in our power to change, ameliorate, and end the circumstances that led to this disturbance in the moral balance of our universe. I will end my comments with a brief fable that arose out of a statement I had heard Desmond Tutu make in a radio interview: that many of the interpreters for the TRC suffered mental anguish and breakdowns from having to speak in the first person for both violator and victim.

The Interpreter for the Tribunal

Interpreter for Amnesty Applicant Major J. Herzbreek—Mr. L.M. Speke Interpreter for Witness Mr. Y Inkululeko—Mr. L.M. Speke I was hiding in my friend’s garage, a place no one would think to look. I had my informants, you see. We were boys together and I knew he’d never betray me. I waited until the time they usually brought him food and when he opened the door to my whistle, I was on him like a pack of wild dogs. He ground my face into the concrete, shouting horribly in my ear. The pain was terrible. I did not know what was happening. The trick is to disorient the prisoner right away. Get him off guard and he’ll tell you anything you want to know. My arm was twisted behind my back and I could feel the ligaments tearing. I did not struggle but he kept twisting, his knee my knee in his back you bastard you’re done now he screamed I was thrust from the darkness into the light, then into the darkness again like a sack of potatoes I threw him into the trunk of my car, I’m that strong. I could hear him thumping in the trunk as I drove and hit the brakes taking the corners hard I bashed my head against something hard and was thrown helplessly into the light of a two-thousand candlepower torch right in the eyes hitting him all the time the fists coming from nowhere and I felt a rib breaking, my nose breaking. The blood ran down his face and he didn’t even lift a finger to wipe it off my glasses had come off when they got me and I had no idea where I was on the ground of that hut, and yes I sat on his back and pulled the sack over his head, the wet sack like I was drowning I could not breathe. He could not breathe, I pulled it off now you will tell me what I want to know because otherwise I could not breathe I told him everything it did not take long to get the names my friends who betrayed me the friends I did not know what I was saying what he was saying those were hard times and we had to be hard to live in them I just wanted the pain to stop but I have to live with who I am now who was I then it is too terrible to speak of it at all is to go mad.

Books

Tutu, Desmond. No Future Without Forgiveness. The Archbishop’s personal account of his experiences as head of the TRC, including his moral philosophy on reconciliation. Edelstein, Jillian. Truth and Lies, Jillian Edelstein, The New Press, 2001) Excellent introduction by author, and essay on “Memory and Trauma” by Pumla Gbodo-Madikizela, along with haunting photographs. Gbodo-Madikizela, Pumla. (2003). A Human Being Died That Night: A South African Story of Forgiveness. Boston, Mass.: Houghton Mifflin. Krog, Antjie. Country of My Skull. Personal account of being a journalist covering the TRC. Made into the film, “In My Country.” Slovo, Gillian. Red Dust. Novel about the TRC. Every Secret Thing: My Family, My Country (1997), memoir about her family, including her mother, Ruth First, who was murdered by South African police who subsequently were granted amnesty by the TRC.

Websites

http://www.csvr.org.za Center for Study of Violence and Reconciliation (South Africa-based NGO) website. A considerable range of online resources relating to peace-making and issues of transitional justice, including links to the Truth and Reconciliation Commission reports. http://www.csvr.org.za/papers/papstrg1.pdf A paper on the efforts to promote peace in Mozambique by connecting former fighters from different sides of the conflict. http://www.restorativejustice.org/ Most comprehensive website on the topic. Focus is largely on criminal justice issues.