Opening the TRC Archive: a SAHA case study
Posted on August 7, 2014
'One of the key aspects of the Commission's work has been its commitment to transparency and public scrutiny. Its records ... are a national asset which must be both protected and made accessible.' TRC Final Report, Volume 5, Chapter 8
In December 1995, the South African Truth and Reconciliation Commission (TRC) came into operation to promote an examination of past conflicts as an investment in the country's transition to democracy. Committed to the principles of transparency and public participation, the aim of the TRC was to begin the long, difficult journey towards a post-apartheid reconciliation by exploring and acknowledging the harsh realities inherited from the past.
Though not without its critics, the South African TRC has been lauded internationally as an exemplary effort in striking the balance between acknowledging the past, pursuing justice and effecting reconciliation. Nearly 20 years on, however, the country seems in danger of forgetting the work of the TRC. Most South Africans have not seen the findings and recommendations of the Commission. Little has been done to build on the ideals that underpinned the TRC's initial establishment and a persistent lack of political will and resolve to follow up on recommendations made in the TRC Report prevails.
One of these recommendations was to protect and make readily accessible to all South Africans the 'national asset' that is the TRC archive. The TRC collected large amounts of valuable information about the violation of human rights and the workings of the apartheid security establishment under apartheid. Access to these records remains vital in order to address the unfinished business of the TRC: from the provision of reparations to victims of gross human rights violations, through the prosecution of perpetrators who ignored the TRC's amnesty process, to ongoing truth recovery efforts to understand more about hidden, unacknowledged aspects of our past.
The South African History Archive (SAHA), an independent human rights archive based at Constitution Hill in Johannesburg, has demonstrated a longstanding interest in the South African Truth and Reconciliation Commission (TRC). For over a decade, much of SAHA's educational, outreach and advocacy work has been focused on making the work and records of, and surrounding, the South African TRC more readily accessible, drawing on the recommendations made by the TRC itself to direct its work, particularly in relation to conducting ongoing truth recovery to uncover further evidence about unknown or unacknowledged aspects of South Africa's past, often in the face of little state engagement in continuing the reconciliation agenda begun by the TRC.
One example of the work SAHA has undertaken in making the TRC archive, in its broadest sense, more readily accessible was the development of the SAHA / SABC Truth Commission Special Report multimedia player and website, an interactive tool built around the 87-part Truth Commission Special Report television series. Originally broadcast weekly by the South African Broadcasting Corporation (SABC) from 1996 - 1998, during the public hearing stage of the TRC, these audiovisual records form a critical resource that provides a powerful window into the conflicts of the past and ongoing challenges for reconciliation.
However the series became largely unavailable after its initial broadcast and a number of the original masters went missing from the SABC archives over the years. In 2007, SAHA therefore began the slow process of locating, digitising, cataloguing, transcribing and indexing all 87 episodes of the series. The series was then linked to relevant sections of the official TRC Final Report, transcripts from TRC hearings, amnesty decisions, submissions made to the TRC and other related resources, to form a seamless, searchable multimedia player, launched in 2010, intended to support much needed ongoing transitional justice and reconciliation work in South Africa. Based on the success of this multimedia player, SAHA and the SABC then collaborated in 2011 and 2012 to put the entire product online in order to make the work of the TRC more widely accessible, and to introduce a new generation of South Africans to this vital period in the making of our democracy.
Other SAHA TRC initiatives have included the development of an exhibition, catalogue and ongoing educational workshop programme, 'The battle against forgetting: human rights and the unfinished business of the TRC' (2010 to date); and an earlier joint SAHA/ Wits University TRC Archives project, encompassing research, document and oral history collection processes, archival auditing, digitisation and web development in relation to both official and unofficial TRC records (2003 - 2006).
This archival activism has been underpinned and enhanced by using South Africa's Promotion of Access to Information Act, 2000 (PAIA) to test the extent to which the official TRC archive, in the custody of the Department of Justice, is actually accessible . In SAHA's experience of having submitted over 60 PAIA requests for access to TRC records since 2001, the state has repeatedly attempted to block access to the TRC archives, which, all too often, has resulted in unnecessarily lengthy, hostile and litigious engagements. SAHA has secured several favourable settlements, forcing government departments to hand over TRC records they had previously refused to disclose and, in some instances, had denied even existed. However, because of these last-minute out-of-court settlements, no legal precedents have been set around access to the TRC archive, enabling government departments to continue using such blocking tactics. Furthermore, going to court is expensive and time consuming, and should not be the primary mechanism to gain access to TRC records.
Possibly the most concerning pattern to emerge is the fact that it has been the Department of Justice and Constitutional Development (DOJCD) that has been particularly obstructive and non-compliant in response to SAHA's requests for access. As the government department tasked with overseeing the ongoing business of the TRC, the DOJ currently controls access to the bulk of the TRC records. The DOJ also has oversight responsibilities in terms of monitoring compliance with the PAIA and, as such, should be both familiar with the law and exemplary in their responses to request for access to information. It is therefore doubly damning that not only has the DOJCD failed to respond to SAHA within the legally prescribed timelines in the vast majority of requests submitted, but they have also refused access to more than half of the requests submitted, and denied many of the subsequent appeals.
Adding to these barriers to access, the bulk of the official TRC Archive, whilst under the control of the DOJCD, is confusingly located within the woefully under-resourced National Archives, and still remain largely unprocessed and therefore inaccessible (with the exception of audiovisual materials). This, despite recommendations of the Commission in 2003 that:
'the government locate adequate additional funding to the national archives to preserve and maintain the records of the commission' and 'to facilitate the creation of decentralised, nationwide 'centres of memory', at which members of the public who do not have personal access to computers can access details of the proceedings of the commission, including transcripts and sound and video clips of hearings'. TRC Final Report, Volume 5, Chapter 8
Over a decade later, in November 2013, in response to a PAIA request submitted by SAHA to investigate the extent to which there was likely to be any movement in this direction in the next few years, the National Archivist confirmed that there are still no specific plans or budgets for the ongoing maintenance and preservation of the TRC records or plans to develop a dedicated archival repository (let alone multiple 'centres of memory' envisaged by the TRC) to make the TRC archive more readily accessible. (2)
In considering some of the challenges in accessing TRC records, and exposing tactics of obstruction, it is worth focussing on one of SAHA's longstanding, still ongoing, efforts to access TRC records. (3)
The TRC Database: a cautionary tale
'The TRC database represents one of the most remarkable archival collections in the country and belongs to the nation.'
- TRC Report Volume 6, Chapter 3
In 2006, SAHA submitted an access to information request to the DOJCD to obtain an anonymised copy of the TRC Human Rights Violation database in order to make it more widely accessible for further statistical analysis of violations under apartheid, as reported to the TRC, to complement and build on the work of the TRC. In response to the 2006 request, the DOJ sent correspondence to 22,000 South Africans who submitted statements to the TRC, erroneously claiming that SAHA has requested all their personal data stored on the TRC database. The PAIA request was ultimately refused on grounds of privacy, demonstrating the DOJ's basic lack of understanding of the request process and the correct application of the exemptions within PAIA. Furthermore, by employing state resources in what some may argue to be malicious, intimidation tactics to misinform victims as to SAHA's intentions, the DOJ also created unnecessary work (in responding to multiple outraged recipients of letters from the DOJ), and potential reputational damage for a small civil society organisation, an NGO simply trying to contribute to following up on the unfinished business of the TRC, a task largely ignored by the state itself.
In 2009, SAHA re-submitted the request, once more stating clearly that SAHA did not want access to victims' names, addresses and other identifying data. This request was also refused, as was the subsequent internal appeal. In a promising turn of events in September 2009, the Minister of Justice overturned previous refusals to release the TRC database to SAHA but, over four years later, the DOJCD has yet to provide SAHA with the record set requested. Instead SAHA has been provided with reports with only a very small percentage of the data requested; this, despite SAHA's repeated efforts to facilitate technical support for the DOJCD in working with the TRC database from both national and international experts who had contributed to the design and development of the database.
This example alone provides damning insight into the current state of access to information in South Africa. On a basic level, the DOJ's apparent lack of understanding of the legislation is evident in the misapplication of exemptions, along with a number of incorrectly cited and arguably irrelevant grounds for refusal, as they attempted to apply a blanket exemption around confidentiality when a number of the records requested had previously been aired publicly, and the names of the victims appearing in the database were published in the official TRC report. This, despite the fact that PAIA specifically states that a record may not be refused using the confidentiality exemption insofar as it consists of information already publicly available.
By simply repeating the refusal to release records without addressing legitimate concerns raised by SAHA, repeatedly and comprehensively, as to how and why the records released do not constitute a full release of the relevant records in terms of PAIA, this case clearly demonstrates a kneejerk tendency to refuse access peremptorily, with inadequate attention or care, and with no apparent consideration of whether section 46 of PAIA, the public interest override, might apply.
Another worrying aspect of this request is the way in which it has highlighted the DOJ's inability to manage and maintain access to electronic records. This is symptomatic of a broader, endemic failure across state departments to meet their obligations both to create and manage print and electronic records effectively, as has been highlighted repeatedly by SAHA, most recently in SAHA's submission as amicus curiae in the much publicised court case in which the Mail & Guardian Centre for Investigative Journalism used PAIA to request records from the Department of Public Works relating to expenditure on the Nkandla Estate. (4)
Ultimately, the most concerning pattern revealed in SAHA's longstanding attempts to open up the official TRC archive using PAIA, as exemplified by the case of the TRC database request, is the apparent disregard of the DOJ for the right to the truth located at the heart of the TRC, as articulated in the Promotion of National Unity and Reconciliation Act, 1995 (better known as the TRC Act):
'...it is deemed necessary to establish the truth in relation to past events as well as the motives for and circumstances in which gross violations of human rights have occurred, and to make the findings known in order to prevent a repetition of such acts in future ...' (4)
In withholding access to the records of the TRC, is the state essentially undermining one of South Africa's greatest memory initiatives with a will to forget?
All TRC records released to SAHA are archived in SAHA Collection AL2878: The Freedom of Information Programme Collection. These, along with over 40 other SAHA TRC-related collections, can be consulted by interested members of the public at the SAHA offices at Constitution Hill in Johannesburg.
(1) See http://foip.saha.org.za/request_tracker/entry/sah-2013-nar-0003
(2) For more information on SAHA's work on using PAIA to access TRC records, please see Chapter 2 of the SAHA / Wits University Press 2009 publication 'Paper Wars: Access to Information in South Africa
(3) See http://mg.co.za/article/2014-04-29-nxesi-ordered-to-hand-over-nkandla-documents-to-amabhungane
(4) See http://www.justice.gov.za/legislation/acts/1995-034.pdf
Catherine Kennedy is the Director of the South African History Archive (SAHA)