1 Introduction
4.1 The Canvas for Transitional Truth-seeking
Existing theoretical accounts for the establishment and design of truth commissions can be characterized as functionalist. A functionalist perspective usually takes as a starting point that institutions can be explained based on their apparent purpose for existing.5 In other words, institutions exist in the form that they do in order to solve particular problems. On the surface, truth commissions fit this characterization easily. Truth commissions are established for a particular purpose, such as truth-seeking and redress. Ideally, they are designed by actors to meet that purpose.6 Because of their narrowly defined mandates— both in duties and scope—taking the truth commission as a rationally designed institution of redress, is in some ways, warranted.
However, as Pierson outlines, functionalist accounts do not adequately consider three potential issues that affect institutional development and design. First, those establishing institutions may not be acting in terms of efficacy or rationality necessarily. Second, short-term payoffs in institutional development may have unintended consequences for later institutional operation. Third, there is no guarantee that those
5 Paul Pierson, "The Limits of Design: Explaining Institutional Origins and Change," Governance: An
International Journal of Policy, Administration and Institutions 13, no. 4 (2000): 477.
6 Subotić notes that this instrumentalism has expanded beyond the pursuit of justice and into the realms of
peacebuilding and democratization. See, Jelena Subotić, "The Transformation of International Transitional Justice Advocacy," The International Journal of Transitional Justice 6, no. 1 (2012): 122.
establishing institutions get it right at the beginning.7 Similarly, in thinking about truth commission processes, a functionalist approach does not enable an accounting for truth commissions that are established without sufficient political will or as instrumental political maneuvers.8
The transitional setting also influences how truth-seeking and information gathering can be undertaken. Theoretically, members of an outgoing regime are likely to be interested in minimal accountability measures for past human rights violations, and as Skaar recognizes, want to “avoid being given public blame for the violations.”9 Significantly, in transitional settings, there is an element of flux or flexibility in political conditions, including the institutional configurations.10 O’Donnell and Schmitter identify that the rules shaping transitions are usually still those imposed by the previous regime, and that a transition is recognizable when these rules begin to be adjusted to extend rights guarantees.11 Critically, however, as Thelen observes, it is important to recognize that institutions persist in spite of transitions.12
7 Pierson, "The Limits of Design: Explaining Institutional Origins and Change," 483.
8 On instrumental dimensions of transitional justice more broadly see Jelena Subotić, "The Paradox of
International Justice Compliance," The International Journal of Transitional Justice 3, no. 3 (2009): 362- 383.
9 Skaar, "Truth commissions, trials - or nothing? Policy options in democratic transitions," 1111.
10 Guillermo O’Donnell and Philippe C. Schmitter, "Tentative Conclusions about Uncertain Democracies,"
in Transitions from Authoritarian Rule: Prospects for Democracy, ed. Guillermo O’Donnell, Philippe C Schmitter, and Laurence Whitehead (Baltimore and London: The Johns Hopkins University Press, 1986), 3.
11 O’Donnell and Schmitter, "Tentative Conclusions about Uncertain Democracies," 6, 15.
12 Thelen, How Institutions Evolve: The Political Economy of Skills in Germany, Britain, the United States,
and Japan, 7.
Also, Krasner makes this point suggesting that one of the things that makes institutions meaningful is that they do not always change with changes in environment. See Stephen D. Krasner, "Sovereignty: An Institutional Perspective," Comparative Political Studies 21, no. 1 (1988): 81.
The crucial element here is that the process of transition opens the possibility for change, although which institutions change and how they change is not universal.13 Thus, the setting matters in the impetus to pursue information because outgoing regimes or powerholders have an interest in not exposing past deeds. The commitment to a truth commission, or the political will to facilitate truth-seeking, is influenced, at least in part, by the actions and behaviour of the old regime.
The opening of a transitional space thus provides an opportunity for different ideas, conceptualizations of rules, and institutional praxis. These rules may represent popular demands, or may reflect a recognition of the need for reform from the “soft-liners” in a regime, in order to maintain regime durability.14 Many accounts of the South African transition focus on the role of elites in negotiating the transition, with both the National Party (NP) leadership and the African National Congress (ANC) leadership recognizing there were few other pathways forward without negotiation.15 Others do highlight different factors in precipitating the transition, but the transition itself is still identified as an elite- led process. Wood, for example, investigates South Africa as a case of ‘transition from
13 Geddes reminds us that the difficulties for “theoretical synthesis” in explanations for transitions to
democracy is that the types of autocratic regime from which transitions are occurring also differ. See Barbara Geddes, "What Do We Know About Democratization After Twenty Years?," Annual Review of Political Science 2 (1999): 121. This logic extends to the discussion here given that transitional justice measures are established in different types of transitions.
14 O’Donnell and Schmitter, "Tentative Conclusions about Uncertain Democracies," 15-16.
15 See, Hermann Giliomee, "Democratization in South Africa," Political Science Quarterly 110, no. 1
(1995): 83-104; Johannes Rantete and Hermann Giliomee, "Transition to Democracy through Transaction?: Bilateral Negotiations between the ANC and NP in South Africa," African Affairs 91, no. 365 (1992): 515- 542. For an overview of transitional arguments see: David R. Howarth, "Paradigms Gained? A Critique of Theories and Explanations of Democratic Transition in South Africa," in South Africa in Transition: New Theoretical Perspectives, ed. David R. Howarth and Aletta J. Norval (New York: St. Martin’s Press), 182- 214.
below,’ identifying the role of the masses in pressuring towards a transition.16 Price focuses on the economic structural conditions impelling the parties toward negotiation.17
This project focuses on institutional persistence and change during the transition period. Concentrating on successive negotiated agreements and their associated institutional deployment means that the transitional explanations that focus on the political elite and associated institutional structures is beneficial for framing the patterns under investigation. The theoretical framing begins with the recognition that South Africa’s transition was negotiated by elites and that the measures towards the eventual democratic election were negotiated arrangements, agreed to successively until consensus could be reached on transitional arrangements themselves. The case is treated as a pacted transition.18
In pacted transitions, the increased maneuverability of the elite actors theoretically enables greater bargaining potential and guarantees of participation.19 This is particularly relevant to the study here because of the origins of the Commission of Inquiry for the Prevention of Public Violence and Intimidation within a pact, the National Peace Accord. A pact is defined by O’Donnell and Schmitter as:
An explicit, but not always publicly explicated or justified, agreement among a select set of actors which seeks to define (or, better, to redefine) rules governing
16 On popular pressures, see, Elisabeth Jean Wood, "An Insurgent Path to Democracy: Popular
Mobilization, Economic Interests, and Regime Transition in South Africa and El Salvador," Comparative Political Studies 34, no. 8 (2001): 862-888.
17 Robert M. Price, The Apartheid State in Crisis: Political Transformation in South Africa 1975-1990
(Oxford: Oxford University Press, 1991).
18 See Timothy D. Sisk, "The Violence-Negotiation Nexus: South Africa in Transition and the Politics of
Uncertainty," Negotiation Journal 9, no. 1 (1993): 77-94.
19 Paige Arthur, "How “Transitions” Reshaped Human Rights: A Conceptual History of Transitional
the exercise of power on the basis of mutual guarantees for the ‘vital interests’ of those entering into it.20
Elite-driven models focus on the decision-making influence of those in positions of power. This perspective reflects the belief that “the origins of democracy are to be found in political choices rather than in structural conditions—and these choices are made by elites.”21 This is important because although transitional decisions are influenced by the structural and economic realities of the political realm at the time, the agency of elites in making agreements and compromises, in addition to the potential to renege, can change or alter the trajectory of political transitions.
Pertinent to this discussion is the manner in which the transitional space enables the prospect of reform. de Klerk, in his moves to liberalize and dismantle the Apartheid system, can be characterized in O’Donnell and Schmitter’s terminology as a “soft-liner”; working within the regime to make changes toward transition.22 The transitional environment characterized by ongoing negotiations contributed to an overlapping space of governance and negotiation that persisted from 1990 to the eventual election in 1994. Offering an analysis of the potential pathways for a transition to democracy in 1992, Van Zyl Slabbert suggests that “there [was] nothing inevitable, nor arbitrary, about the transition in South Africa – it came about by deliberate political choice.”23 Giliomee also identifies a purposeful characterization stating that the National Party, “deliberately
20 O’Donnell and Schmitter, "Tentative Conclusions about Uncertain Democracies," 37.
21 This is Arthur’s analysis of O’Donnell and Schmitter and the Transitions Project, see Arthur, "How
“Transitions” Reshaped Human Rights: A Conceptual History of Transitional Justice," 346.
22 Horwath discusses this in Howarth, "Paradigms Gained? A Critique of Theories and Explanations of
Democratic Transition in South Africa," 195.
23 Frederik Van Zyl Slabbert, The Quest for Democracy: South Africa in transition (London: Penguin
embarked on a process that would end white minority rule.”24 The process of negotiations that began in 1990 and culminated in the 1993 Interim Constitution, which helped to facilitate the democratic election of 1994, thus opened a period of domestic politics which saw the structures of governance being used to respond to emergent issues in the negotiation period—including state-initiated investigations. These were the conditions that facilitated the establishment of the Commission of Inquiry for the Prevention of Public Violence and Intimidation. The decision to implement this information-gathering institution, and the design of the process had impacts that continued through the transitional period and its aftermath.