Following a political stalemate in the 1980s and 1990s, which had seen growing unrest and ungovernability in South Africa, the National Party government, the African National Congress (ANC), the Inkatha Freedom Party and other political groups entered into negotiations to end apartheid and establish a democracy.
The unbanning of significant political movements by the government and their suspension of the armed struggle provided the prerequisites for the negotiations. The peace process, which included the National Peace Accord and the Convention for a Democratic South Africa (CODESA), led to the adoption of an interim constitution in 1993 and democratic elections in 1994. The interim constitution provided for amnesties for violations of the past and opened the door for other forms of accountability.
The Truth and Reconciliation Commission (TRC) of South Africa was established through the adoption of the Promotion of National Unity and Reconciliation Act (1995). Its mandate was to investigate the gross human rights violations that occurred under apartheid between March 1960 and May 1994, when Nelson Mandela was inaugurated as president. The TRC sought to provide a platform for victims/survivors to share their stories, document these abuses in its final report and provide recommendations for redress and measures to prevent future abuses. The TRC also provided amnesty for politically motivated violations, which required perpetrators to disclose the truth about their role in these abuses.
The TRC focused on what it termed “gross human rights violations,” which included torture, killing, severe ill-treatment and the “attempt, conspiracy, incitement, instigation, command or procurement to commit such acts.” Although sexual violence was not specifically named as a violation under this definition, forms of sexual violations such as rape and sexual assault were recognised as a subcategory under severe ill-treatment or as a method of torture (TRC, 1998a, p. 81).
During the TRC, the Human Rights Violations Committee collected more than 21,000 victim/survivor statements, which explicitly detailed over 37,672 human rights violations in the period being investigated (Borer, 2009, p. 1173). Of the collected statements, 446 contained details on forms of sexual abuse that affected both men and women. Of these cases, 140 explicitly mentioned rape (TRC 1998b, p.298).
According to Goldblatt and Meintjes (1998), the TRC’s engagement with conflict-related sexual violence (CRSV) and gender-based violence more broadly has been criticised due to the lack of explicit mention of sexual violence within the commission’s mandate and the lack of examination of other systemic apartheid violence that fed into the gendered nature of apartheid-era violence. This affected not only the investigations but also the statement taking, analysis of causes and the recommendations.
Conflict and Prevalence of Sexual Violence
The conflict in South Africa originated with the first colonial settlement in 1652 and involved exploitation, dispossession and disenfranchisement of the African population and other groups of colour by first the Dutch and later the British colonial regime. Resistance was met with harsh repression and systematic human rights abuses.
Racial discrimination took on another odious form after the National Party came into power in 1948. Under this government, apartheid laws and policies were enacted to further entrench racial separation and inequality, which further dispossessed people of colour. To counter this systemic repression, political violence ensued in the country – a violence that was asymmetrical due to the power and resources of government actors. The state security forces and apparatus, including the South Africa Defence Forces and the South African Police Service, were in active conflict with the liberation movements and their associated guerrilla forces, including the African National Congress, the Pan African Congress and the Inkatha Freedom Party. The violence would intensify until the democratic elections of 1994, with numerous gross violations committed by the different parties involved.
Sexual violence during this period was intertwined with the racial injustice of the apartheid regime. Rape was common. For women designated as African, Coloured and Indian by the regime, according to its racial classification system, gender-based violence was perceived as part of the everyday and situated within other forms of social, political and economic violence and marginalisation. According to Armstrong, “If a rape victim was black, it wasn’t really seen as quite as serious as if she had been a white woman” (1994, p. 35).
Sexual violence was not limited to the community level, with sites of exile and detention centres also seeing such violations. According to Manjoo, “This was the reality in South Africa where there was knowledge of the practice of rape by the security forces, by opposition political groups and also in the camps of the liberation movements, yet this did not fully emerge either prior to or during the TRC hearings” (2004, p. 4).
When victims/survivors were detained by the state, stripping and other violations of sexual and reproductive rights were used as a form of torture based on humiliation. One victim/survivor recalled, “Most commonly, women would be forced to stand, with or without pads, with blood running down their legs while being tortured” (TRC, 1998b, p. 300).
Men were also victims of sexual violence, although this is underreported within the literature and TRC final report. The commission found, for example, that members of the Bonteheuwel Military Wing were “sodomised with a barrel of a revolver and baton” and intentionally placed with hardened criminals that would rape these teenagers within prisons (p. 280).
Both the literature and witness accounts detailed by the TRC demonstrate the widespread nature of sexual violence under the apartheid regime. It was used to destabilise and silence liberation movements and their supporters, as well as the broader population. Although women were the primary targets of such violence, it affected men and others as well.
Contributing Factors around Sexual Violence
The prevalence of sexual violence during the apartheid era was rooted in existing gender roles in society, as well as the use of sexual violence as a silencing tool and a form of torture. Manjoo (2004) stresses that victims/survivors, particularly women, were defined by their reproductive and social roles, as they moved from being identified as an individual ‘wife/mother/daughter/chattel’ within a patriarchal society to representatives of a whole community subject to repression. In her testimony before the TRC, one of the victims/survivors “suggested that sexual violence is also used by those in power to destroy the identity of women who have rejected traditional roles, for example by engaging in ‘masculine’ roles in the struggle” (TRC, 1998b, p. 297).
The state’s use of torture involved the intense breakdown of femininity in places of detention. Between the 1986 and 1987 states of emergency, 12% of detainees were women, with reports detailing rape and other sexual and reproductive violations, including ones that led to miscarriages (Russell, 1989).
In addition, many women felt unable to discuss their experiences of sexual violence within the liberation movements, both before and during the TRC. In her testimony, Jessie Duarte said, “If women said they were raped, they were regarded as having sold out to the system in one way or another” (TRC, 1998b, p. 298). According to Goldblatt and Meintjes, “Firstly, on a personal level, they are not easily able to talk about rape. Secondly, on an organisational level, they do not wish to have their experiences used politically in the TRC where apartheid is equated morally with the ANC’s actions” (1998, p. 12).
In everyday life in marginalised communities, sexual violence was prolific. According to Armstrong, “Rape ‘was seen as being just part of life,’ particularly for poor black women, who have experienced the triple oppression of race, class and gender. Discriminated against economically, politically, and culturally, they have suffered abuse at the hands of both black and white men” (1994, p. 35). The system of apartheid played a role in enforcing and re-enforcing dominant masculinities over women, stripping them of their bodily autonomy.
Political violence between liberation movements exacerbated sexual violence in marginalised communities. Many women were targeted for rape and gang rape for engaging with political structures or if they were related to someone involved in a political movement. Sexual violence against women was used to suggest that men could not protect ‘their’ women and to demonstrate men’s weakness. The TRC final report states, for example, that “a woman described how she was gang raped by youths from an opposing political organisation. Her husband was forced to watch the entire attack. When she awoke in hospital, she was told that she needed a hysterectomy” (TRC, 1998b, p. 300).
In addition, victims/survivors could be kept waiting for days to be attended to by police, medical personnel and other structures meant to assist citizens. As women seen at police stations risked being accused within their communities of serving as informants, sexual violence was grossly underreported (Armstrong, 1994, p. 360). Structural violence and discrimination served to both exacerbate and invisibilise sexual and gender-based violence.
Transition and Establishment of the Truth Commission
CODESA, the multi-party peace talks, included the Women’s National Coalition (WNC), which was established in 1992 as an umbrella coalition for women to engage in the negotiations. Although criticised for not being reflective of racial demographics, the WNC ensured women’s participation in the drafting of the interim constitution, which stressed the need for national unity and reconciliation (Myeni, 2014, p. 69).
Prior to the establishment of the TRC, the ANC formed two commissions of inquiry to investigate allegations of violations committed by its own members. In 1992, the Skweyiya Commission investigated abuse and torture committed against ANC detainees in training camps in Angola, Zambia and Tanzania from 1979 to 1991. After criticism of the limited scope of the Skweyiya Commission, the ANC established the Motsuenyane Commission in 1993, which documented further cases of torture and other abuses in camps committed in the same period, naming some perpetrators (Copelyn & Manjili, 2021). It is unclear whether these commissions investigated or addressed sexual and gender-based violence.
The Promotion of National Unity and Reconciliation Act (1995) established the TRC, whose form was influenced by the negotiated transition. According to Archbishop Desmond Tutu, apart from the state not having the time and money to conduct Nuremburg-style trials, the political stalemate which gave rise to the negotiations did not allow for ‘victor’s justice.’ Insisting on retributive justice alone would have obstructed the path to democracy and could have led to civil war (TRC, 1998a).
The TRC was established with funds from the South African government and thereafter assistance from various international actors, such as the European Community, the Flemish government, the Norwegian Embassy and the United States Agency for International Development (USAID). This support differed, with USAID providing technical assistance for the proceedings of the commission and the Flemish government playing a significant role in establishing and supporting the statement-takers’ programme, for example (ibid).
Mandate and Scope in Respect of CRSV
According to the Promotion of National Unity and Reconciliation Act (1995), the mandate of the TRC was to investigate the nature, cause and extent of the gross violations of human rights that occurred between 1960 and 1994. The TRC was initially meant to cover 1960 to the date of the adoption of the interim constitution, in 1993. This was later amended to May 1994, which allowed the TRC to include abuses that occurred before and during the first democratic elections.
The gross human violations in the mandate were limited to the killing, abduction, torture or severe ill-treatment of any person or any attempt, conspiracy, incitement, instigation, command or procurement to commit such acts. The TRC could grant amnesty to those who acted with a political motive and who made full disclosure of their violations.
The TRC legislation and mandate made no mention of gender or explicit acknowledgement of sexual violence. How it would engage with these issues was thus left subject to interpretation by the commissioners.
Truth Commission Operations
The TRC was initially mandated to run for two years. Its work was extended to 2002, to allow for the completion of the amnesty process. The TRC consisted of 17 commissioners appointed by the president, including eight women. Gender was used as a criterion for recruitment to ensure a gender balance among staff.
The commission consisted of the Human Rights Violations Committee, the Amnesty Committee, the Reparations and Rehabilitation Committee, and an investigating unit. It did not establish a committee or unit that specifically dealt with gendered violations.
The TRC employed trained statement-takers and volunteers in each region of South Africa. The statement-takers, who were from different civil society and religious organisations, ensured that gross human rights violations were documented and gathered for the commission. They were also trained to offer remedial support to victims/survivors, acknowledging their suffering as they detailed their experiences of violence (TRC, 1998a, p. 140).
The commission initially did not establish gender-sensitive measures in its investigative processes or hearings. In response to submissions by organisations such as the Centre for Applied Legal Studies, which highlighted the TRC’s “lack of sensitivity to gender issues” (TRC, 1998b, p. 284), the commission organised special women’s hearings in Cape Town, Durban and Johannesburg. These hearings highlighted gender-based violations, including sexual violence as well as structural violence.
The commission found that although more women than men testified before it, they did so as indirect victims/survivors, usually speaking as “wives, mothers, sisters and daughters” of men who had been violated (p. 298). This contributed to a silence around the atrocities experienced by women under apartheid.
Truth Commission Final Report
The TRC did not provide a definition of sexual violence in its final report. This comes from the narrow scope of abuses outlined in its mandate. The final report was initially presented as five volumes to the president in 1998. Volumes 7 and 8 were presented in 2002 after the extended operating period of the Amnesty Committee. The commission listed victims of gross violations of human rights. It also listed perpetrators who were granted amnesty, although the specific violations they committed were not detailed.
The commission decided to include crimes of a sexual nature, such as rape and sexual assault, under the category of severe ill-treatment. The forms of sexual violation documented in the commission’s report include rape, gang rape, forced abductions and multiple rapes, forced pregnancies, forced miscarriages and sexual assault with foreign objects (p. 290).
While there are references to sexual violence throughout the report, specific documentation of sexual violence is included as a subcategory in the chapter “Special Hearing: Women,” which explores the gendered nature of apartheid-era violations. While sexual violence is explored here as a gendered experience that mostly affected women, other chapters surmise that men were also victims/survivors of sexual violence. According to the report, “Of the 446 statements that were coded as involving sexual abuse, 398 specified the sex of the victim. Of these 158, or 40 per cent, were women. Rape was explicitly mentioned in over 140 cases” (p. 298)
The final report draws a correlation between the prevalence of sexual violence during the period under investigation and its use as a form of torture and a mechanism for instilling fear and silencing. It includes testimonies of sexual violence from several women. It also names groups and structures responsible for such abuses, including both the state and liberation movements. The violations are listed as having occurred in places of detention, in exile and in victims/survivors’ own communities. This demonstrates the widespread and institutionalised nature of sexual violence in the apartheid era.
Truth Commission Recommendations
The TRC characterised its recommendations as a “commitment to reconciliation and unity.” Although the commission’s final report acknowledges the structural violence and gender-specific violations that women endured, its recommendations are gender-blind (TRC, 1998c, p. 256). The commission made no recommendations specific to gender or suggestions for institutional arrangements that would tackle imbalances between men and women. The same applies for victims/survivors of sexual violence. The commission did provide general recommendations in the form of reparations (compensation and rehabilitation) and guarantees of non-recurrence that would overlap in deterring future violations.
The commission recommended reparations in the form of monetary payments, symbolic reparations, institutional reforms and community rehabilitation programmes (p. 176). It recommended that all victims/survivors, including of sexual violence, receive annual payments of about R20 000 (USD 1 070) for six years. These were individual reparations for victims/survivors registered with the commission.
The commission recommended that nongovernmental organisations working with victims/survivors extend their services to victims/survivors acknowledged by the TRC. It also recommended that clinics and other appropriate services facilitate the rehabilitation of perpetrators (p. 310).
Looking at guarantees of non-recurrence, the commission recommended that all personnel in the justice system undergo intensive training on the values of the new South African constitution and international legal standards, including in relation to gender-based violations (p. 324). The TRC further recommended that prison staff receive training on human rights to enable the fair treatment of prisoners and understanding and management of prison systems. This would include training in prison law, their duties and responsibilities, and ethics and conflict resolution (p. 314).
An Independent Complaints Directorate, established in 1997 as an organ of accountability for any police misconduct (now the Independent Police Investigation Doctorate), was to be governed by new legislation, independent of general police legislation, allowing for decentralised operations and investigations (p. 330). The TRC also recommended that the attorney-general prosecute police and other state actors found to have assaulted, tortured or killed people or repeatedly accused of using force on suspects or people in custody (p. 332).
Implementation of the Truth Commission Recommendations
The government has only partly implemented the TRC’s recommendations, some of which are relevant to addressing sexual violence.
During its operations, the TRC granted urgent interim relief of up to R5 579 (USD 300) to certain victims/survivors (Makhalemele, 2004). In 2003, the government established a President’s Fund for the state reparations programme. It did not follow the commission’s recommendations regarding reparations, opting to provide once-off individual payments of R30 000 (USD 1 614) and only to victims/survivors who registered with the TRC. The state later provided financial support of up to R60 000 (USD 3 200) per year for higher education and training as well as basic education for victims/survivors registered with the TRC and their family members (Copelyn & Manjili, 2021).
According to Steyn (2022), as of March 2022, the President’s Fund was at almost R1.9 billion (USD 102 182 000), but victims/survivors are yet to receive adequate reparations. The South African Coalition for Transitional Justice continues to advocate for the provision of adequate reparations for victims/survivors, in line with the TRC’s recommendations, and for the eligible victims/survivors to extend beyond the TRC’s list. The coalition includes 14 civil society organisations and 13 individual members, including victims/survivors of and former TRC commissioners.
Prosecutions, meanwhile, have been met with political interference, which has resulted in missing dockets and other forms of misconduct from state officials, possibly because ANC officials may be implicated (Copelyn & Manjili, 2021). Many victims/survivors have reported feeling that the amnesty process was not consultative and created a loophole for perpetrators to avoid prosecutions (Makhalemele, 2004).
Armstrong, S. 1994. “Rape in South Africa: An Invisible Part of Apartheid’s Legacy.” Gender and Development, 2(2): 35-39.
Borer, T.A. 2009. “Gendered War and Gendered Peace: Truth Commissions and Post Conflict Gender Violence: Lessons from South Africa.” Violence against Women, 15(10): 1169-1193.
Copelyn, J., & ManjilI, F. 2021. “South Africa.” African Transitional Justice Hub. https://atjhub.csvr.org.za/south-africa-2/#Source
Makhalemele, O. 2004. Southern Africa Reconciliation Project: Khulumani Case Study. Centre for the Study of Violence and Reconciliation. https://www.csvr.org.za/docs/reconciliation/southernafricareconcilliation.pdf
Manjoo, R. 2004. The Truth and Reconciliation Commission of South Africa Report: A Model for Gender Justice. United Nations Research Institute for Social Development.
Myeni, S. 2014. “Representation without Participation: Dilemmas of Quotas for Women in Post-apartheid South Africa.” African Journal of Governance and Development 3(2): 56-78.
Promotion of National Unity and Reconciliation Act 34. 1995. http://atjhub.csvr.org.za/wp-content/uploads/2021/08/Promotion-of-National-Unity-and-Reconciliation-Act-34-of-1995.pdf
Russell, D.E. 1989. Lives of Courage: Women for a New South Africa. Basic Books.
Steyn, D. 2022. “Nearly R2 Billion for Apartheid Reparations is Unspent.” Ground Up. https://groundup.org.za/article/unspent-money-the-r19-billion-fund-meant-for-apartheid-reparations/
Truth and Reconciliation Commission of South Africa (TRC). 1998a. Truth and Reconciliation Commission of South Africa Report, Vol. 1. http://atjhub.csvr.org.za/wp-content/uploads/2021/08/SA-TRC-Final-Report-Vol-1.pdf
Truth and Reconciliation Commission of South Africa (TRC). 1998b. Truth and Reconciliation Commission of South Africa Report, Vol. 4. http://atjhub.csvr.org.za/wp-content/uploads/2021/08/SA-TRC-Final-Report-Volume-4.pdf
Truth and Reconciliation Commission of South Africa (TRC). 1998c. Truth and Reconciliation Commission of South Africa Report, Vol. 5. http://atjhub.csvr.org.za/wp-content/uploads/2021/08/SA-TRC-Final-Report-Volume-5.pdf