Main Bodies of Truth: Law, Memory, and Emancipation in Post-Apartheid South Africa
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Bodies of Truth Stanford Studies in Human Rights Bodies of Truth Law, Memory, and Emancipation in Post-Apartheid South Africa Rita Kesselring Stanford University Press Stanford, California Stanford University Press Stanford, California © 2017 by the Board of Trustees of the Leland Stanford Junior University. All rights reserved. No part of this book may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying and recording, or in any information storage or retrieval system without the prior written permission of Stanford University Press. Printed in the United States of America on acid-free, archival-quality paper Cataloging-in-Publication Data available upon request. ISBN 978-0-8047-9848-8 (cloth) ISBN 978-0-8047-9978-2 (paper) ISBN 978-0-8047-9983-6 (electronic) Cover image courtesy of author. Typeset by Newgen in 10/14 Minion Pro Contents Foreword vii Foreword from the Series Editor ix Acknowledgments xi List of Abbreviations xiii Introduction1 1 Apartheid Victimhood before the Courts 23 2 Reparation, Representation, and Class Actions 53 3 Embodied Memory and the Social 77 4 The Formation of the Political 117 5 Emancipation from Victimhood 133 6 Ethnographic Experience and Anthropological Knowledge 167 Conclusion: The Embodiment of Experiences of Violence as Seeds of New Forms of Sociality 187 Notes 209 Bibliography 229 Index 247 Foreword AT THE TRUTH and Reconciliation Commission, victims spoke about their losses, their hardships, and their horrendous experiences under apartheid rule. They made us—the commissioners, their fellow South Africans, and the global community—listen, cry, and feel with them. The Truth Commission was very important to mark the point where remorse, forgiveness, and reconciliation became finally possible, but we should not forget that victims’ suffering did not necessarily stop when the commission’s work ended. The lifetime of the commission was too short to list; en to everyone, even though each and every person who lived under apartheid has a singular story to tell. Many, during the commission’s lifespan, were not yet prepared to put their sufferings into words. Twenty years on, the publication of this book is, unfortunately, still timely. Unlike many books about apartheid, Rita Kesselring’s is not only about the past. It is about the persistence of the past into the present. It illuminates how the present society sometimes perpetuates the chasms of the past. In our urge to build a new South Africa, we have neglected thousands of victims and their plights. They have been patient. They have joined in building a new society. But memories do not simply go away. There are memories we all share, but which burden some of us more heavily than others. Victims formed groups, engaged with the Truth Commission, pointed out the shortcomings of the commission’s work, and offered their help in addressing those shortcomings. Victims went to court against those who refused to contribute, to show remorse, or to help repair. Meeting in court is not how we had hoped to build our society. The law can sometimes do more harm than good. But sometimes, the law wakes us up and reminds us of our duties to discuss as fellow human beings the questions the plaintiffs raise. viii Foreword I commend the courage of all those who stood up and spoke out, in the courts and elsewhere. This book brings us closer to those who do not seek the limelight. It offers us insight into the people who cannot or do not want to speak out. We must listen to them. Together, we must finish the work that the commission started. Rita Kesselring, a young Swiss anthropologist, enhances our understanding of the intricacies of victims’ lives in today’s South Africa. She listened to victims. She shared their frustration with a society that seems to have turned the ability to move on into a touchstone of good victimhood. Let her book be a reminder that a political transition does not automatically bring social equality. Today, twenty years after the commission, we no longer need to discuss whether retribution, amnesty, or reconciliation is the way forward. We need to deliver on the dream and the promise of a new South Africa. God bless you. Reverend Mpho Tutu November 2015 Foreword from the Series Editor RITA KESSELRING’S Bodies of Truth: Law, Memory, and Emancipation in PostApartheid South Africa interrogates the limits of law as a mechanism for translating “experiences of suffering, survival, and solidarity” into new forms of sociality that are capable of grounding political and social change. Her study invites the reader to move between a more analytical consideration of struggles in post-apartheid South Africa around modes of justice-making and reconciliation and the more elusive phenomenologies of embodied harm. This is a difficult task, in part because Kesselring’s theoretical framework demands as much introspection as application, since one of the major contributions of her book is to show how even the most expansive discourses of injustice cannot fully encompass experiences of suffering and the ultimately bounded fact of what she describes as “pain’s isolating nature.” Kesselring’s study is the result of almost two years of ethnographic research in South Africa between 2009 and 2013. Her project took her throughout the country, and her writing is infused with a strong sense of intersubjective connection and empathy as she grapples with the task of rendering analytically meaningful the personal journeys among her interlocutors, from what she calls “victimhood” to “victim subjectivity.” Even the photographs in the book reflect a keen sensitivity to the nuanced inflections of everyday life in the stillsegregated townships on the outskirts of Cape Town: the weary man pausing between bites of porridge; the street-side food merchant in the midst of serving lunch; two ladies playing with a pet tortoise. The images speak to one of Kesselring’s central arguments: that there is an immediacy to lived experiences that resists translation into the categories of identity that are recognized by the state, social psychiatry, and the law. At the same time, by following the trajectories of her interlocutors through political activism, legal argument, and social x Foreword from the Series Editor mobilization, Kesselring’s study moves away from trends in phenomenology and practice theory that tend to reduce experience to the embodied self. And there is also an urgency to Bodies of Truth well beyond its theoretical and ethnographic contributions. As Kesselring explains, it has been almost twenty years since the South African Truth and Reconciliation Commission (TRC) completed its work, and yet its enduring impact, its effectiveness in serving its broad goals, is still difficult to assess. This has important consequences, since the South African TRC established a global model for responding to fraught periods of transition after autocratic rule and racial violence, one in which “reconciliatory and restorative measures [were] combined with an investigation in past human rights violations.” But as her research demonstrates, it is perhaps not possible to evaluate the South African TRC simply in terms of its original objectives, since the meaning of the TRC and its relation to what she calls “embodied memories of violence” continue to evolve, shift, and defy categorization. Because of this, Kesselring’s study forces us to take seriously responses to suffering beyond legal, political, and psychological categories. As she puts it, “a person is not primarily a victim because the law [has] defined him or her as such.” Through her ethnography, we see how victims of apartheid come to form new associations, new forms of solidarity, by sharing with others what must remain, in the end, their own “sedimented perceptions of the world.” As Kesselring’s challenging volume suggests, it is to these small spaces of “nonpredicated” sociality—rather than to the grand gestures of law—that victims of injustice in South Africa will ultimately find emancipation from the body’s knowledge of harm. Mark Goodale Series Editor Stanford Studies in Human Rights Acknowledgments FOR THIS BOOK , I have to thank many people. I owe my largest debt to the victims, who bear the brunt of the legacy of apartheid. For reasons of privacy, I have changed some of their names, but most wanted to appear under their own names. Many people who have been equally important to my attempts to understand victimhood do not figure in the book. To all of them, I express my deepest gratitude for letting me into their lives and tacitly sharing with me what it means to live with memories of harm. I will never be able to give back what they have entrusted to me: their humanity, their time, and their insights. Some of them explicitly asked me to write about their lives twenty years after the formal ending of apartheid. I hope I have not let them down. The organization that became the entry point for and has remained important as a partner and facilitator of my research is the Khulumani Support Group, a South African apartheid-era victims’ advocacy and support group. Without Khulumani, many experiences of victimhood in South Africa would still not be in the public realm, and the majority of victims would not have found victimhood solidarity in a network of people who share similar experiences. And without Khulumani, this book would probably never have come into being. I want to thank some of the individuals who have always been open to sharing their views and letting me partake in their work within or with Khulumani: Marjorie Jobson, Shirley Gunn, Zukiswa Puwana, Tshepo Madlingozi, Charles Abrahams, Sindiswa Nunu, Brian Mphahlele, Rose Dlamini, Amanda Mabilisa, Nomarussia Bonase, and the late Maureen Mazibuko. Beyond Khulumani, many persons became close friends, and intellectual combatants, during the months and years I lived in South Africa, particularly, Jess Auerbach, Philippe Ferrer, Ghalib Galant, Premesh Lalu, Sean McLaughlin, Sonwabile Mnwana, Isolde de Villiers, and Lauraine Vivian. xii Acknowledgments I particularly want to thank Fiona Ross, Till Förster, and the late Patrick Harries for their unreserved support in reading, listening, and giving advice. Special thanks go to Richard Wilson, who welcomed me at the Human Rights Institute at the University of Connecticut for one year of writing. Susan Farbstein and Tyler Giannini from Harvard Law School kindly shared with me their experiences as legal counsels in cases filed under the US Alien Tort Statute. Many friends and colleagues provided helpful criticism and feedback on versions and chapters, and I want to acknowledge their invaluable contribution to this book: Alexandra Binnenkade, Phil Bonner, Gregor Dobler, Jan-Bart Gewald, Patti Henderson, Lucy Koechlin, Reinhart Kössler, Sarah Nouwen, Lukas Meier, Sheila Meintjes, Barbara Müller, Katharine Richards, Rita Schäfer, and Evelyne Schmid. Four persons in particular continuously pushed my thinking through their genuine interest in the realities of victimhood. Conversations with them always took me further, and I owe them much: Gregor Dobler, JanBart Gewald, Barbara Müller, and Siranus Sarak. The companionship of my fellow scholars at the Chair of Social Anthropology, the African History Chair, and the Centre for African Studies, University of Basel, is irreplaceable; the political interest of the members of the Swiss Apartheid Debt and Reparations Campaign kept me focused; and the scholarly support I received from the members of the Arbeitskreis Forschung zur Vergangenheitspolitik was also very helpful. I would also like to extend thanks to audiences and colleagues in Basel, Berlin, Bern, Burlington, Cape Town, Edinburgh, Freiburg, Johannesburg, Montreal, Stellenbosch, Storrs, Uppsala, and Tel Aviv. The research for this book was made possible by a grant from the bilateral Swiss South African Joint Research Programme; a grant from the Swiss National Science Foundation for a writing fellowship at the Human Rights Institute, University of Connecticut; a stipend from the Freiwillige Akademische Gesellschaft Basel; and by the Department of Social Anthropology at the University of Cape Town, which hosted me as a visiting researcher. Finally, I want to thank the anonymous reviewers for their valuable comments and suggestions, and the Stanford University Press editors, the series editor, and the editorial assistants for their unfettered support and commitment. Abbreviations ANC African National Congress ATS Alien Tort Statute, a statute in the U.S. Constitution (28 U.S.C. §1350) CODESA Convention for a Democratic South Africa COPE Congress of the People COSATU Congress of South African Trade Unions CSVR Centre for the Study of Violence and Reconciliation ICTJ International Centre for Transitional Justice NDPP National Directorate of Public Prosecutions PAC Pan Africanist Congress of Azania PTSD Post-traumatic stress disorder RDP Reconstruction and Development Programme SANGOCO South African National NGO Coalition TRC Truth and Reconciliation Commission UDF United Democratic Front Introduction WHEN SYSTEMIC VIOLENCE has become endemic in a society, its traces will continue to shape the political sphere long after the violence had ended and what we call “normality” has been restored. Experiences of violence do not simply go away; they continue to haunt people and to affect the possibilities of sociality. Transitional justice mechanisms, such as truth commissions, acknowledge that the past is “irreversible,” but they attempt to lay it to rest, to heal a nation and to make a new beginning possible; yet very often, the past stubbornly remains, not only irreversible, but “irrevocable” (Bevernage 2012). Experiences of violence linger in people’s lives and bodies and shape their being-in-the-world. This book explores how the past remains present in the South African society twenty years after the political transition to democracy. I focus on the legal, political, and social struggles of apartheid victims today and their attempts to move beyond their injured personhoods. I look at how apartheid victims engage with the past in their everyday lives and under what conditions they can find a new way of being in the world, if they can. I thus address questions that haunt every postconflict society. South Africa’s relatively successful transition from autocratic rule to democracy makes it a model case in trying to answer them. My book offers a sober account of what the South African Truth and Reconciliation Commission (TRC) has achieved and how far South African society has come on the way to social equality after two decades of democratic rule. The majority of apartheid’s victims were not involved in the TRC process. Even so, the commission has been enormously consequential for the majority 2 Introduction of victims. It produced a strong societal image of who a victim is; and it has contributed to the emergence of one dominant discourse, thus excluding many different experiences of victimhood. Victimhood is a bodily experience, and it remains so unless victims have a chance to transform it. There are many different means through which victims can try to assume a new status in society. One of them is the law, which has the potential to transform a person’s experiences in positive or negative ways. With the help of lawyers and support organizations, South African apartheid victims have brought their social concerns to South African and US courts with considerable frequency. I examine the legal avenues available for redress and review the transitional justice mechanisms that make it possible for people to acquire a new social status in society. Scholars of law and society have criticized taking recourse in the law for its nonemancipatory effects and potential to entrench victims in subject positions. Many have adopted a Foucauldian approach to globally increasing litigiousness by arguing that everyone who engages with the law is subjected to the legalization of his or her personhood. I suggest turning this argument on its head. Pursuing legal remedies does not produce subjection to a discourse; it is the consequence of people’s attempt to emancipate themselves from a discourse— under conditions in which the law is a more promising avenue than politics. In looking at the everyday lives of apartheid victims today and at the bodily dimension of their experience of victimhood, I relate their attempts to move beyond victimhood by way of the law, by adopting dominant discourses, by engaging broader society as a political collective, and by making new bodily and social experiences through tacit practices and shared sociality. The possibilities for radical social change in a post-transitional setting emerge in the everyday practices of the survivors themselves, but to be successful, they have to be taken up by the state and the broader society. In the lives of apartheid-era victims today, legal discourse and lived experience are enmeshed. If we try to understand what victimhood entails for survivors, we have to take both sides seriously and search for an interwoven analysis of the law and the body. Legal discourses only become effective in specific realities and forms of lived sociality (Bourdieu 1986). While discourses certainly shape experiences, embodied experiences of harm are not (and cannot be) completely absorbed by legal discourse. As I will show, embodied knowledge, to a certain extent, resists discourses precisely because legal logic does Introduction 3 not directly relate to lived experience. It is in this mismatch that the seeds of new forms of sociality can be found. After the Transition South Africa’s transition to democracy has fascinated scholars and practitioners alike. It marked a major turning point in global politics after a half century of national and international struggle against apartheid. Fifty years after the criminal and retributive Nuremberg trials, the South African TRC represented a new global trend in the way countries approached the transition from autocratic rule by embracing reconciliatory and restorative measures, combined with an investigation into the past human rights violations. The South African TRC gave unprecedented attention to the victims of those crimes, an approach that has been vastly influential and applied in many other postconflict situations. In the very month the majority of South Africans were casting their votes to elect the first post-apartheid government, the Rwandan genocide took place. Rwanda’s episodic tragedy stood in sharp contrast to South Africa’s experience of largely “routinized” (Connerton 2011) and structural violence, but scholars writing about Rwanda still often consider their work in a “transitional justice” frame that has been crucially shaped by the South African experience (Buckley-Zistel and Stanley 2011; Clark 2010). During its practical work in the second half of the 1990s, the TRC explicitly avoided dealing with past atrocities in a juridical way. It condemned the apartheid crimes as wrong, but granted amnesty to perpetrators who disclosed the truth about their misdeeds. Victims, in testifying before the TRC, accused the apartheid regime of wrongdoing but did not have the power to bring charges against individual perpetrators. The TRC gave “victim” status to roughly 21,000 persons who had, directly or indirectly, suffered politically motivated and “body-bound” (Ross 2002, 11) gross human rights violations. This left tens of thousands victims of similar crimes individually unacknowledged. Apartheid matters in South Africa did not end with the TRC, though. From early on, victims had expressed their discontent with the TRC process. The most important voice for victims’ concerns has been the Khulumani Support Group, a support and lobbying group. Its interventions in the 2000s made it clear that the TRC had not brought full satisfaction to everyone, and that liberation had not achieved all that people had hoped it would. The Khulumani group and other civil society groups have since addressed the role of apartheid 4 Introduction victims and perpetrators before courts of law, initiating civil actions around concerns of liability, indemnity, and pardon. The cases have been filed against the South African state in South African courts and in US courts against companies that had not testified to the TRC about their alleged complicity with the apartheid security forces. In other words, although South Africa is still widely known for choosing a reconciliatory path to deal with past atrocities, apartheid matters took a juridical turn post-TRC. Despite the TRC’s explicitly nonretributive approach, South African citizens have pursued questions of victimhood and truth through legal avenues. Many scholars, however, are suspicious of the law—even more so than of reconciliation and the TRC. Taking recourse in the law, they fear, may harden social relations, further entrench enmity between groups, and cement victims’ subject positions. The law cannot solve what has been done to victims and does not offer closure. Instead, it subjects victims to a judicial logic. Politically, legal avenues do not necessarily promise reconciliation. Economically, legal cases more often result in the ruin of plaintiffs and the enrichment of lawyers than in the lifting up of victims. And, socially, we generally have little faith in law’s power to change subjectivities for the better. Despite these reservations, globally the law seems to offer an ever more important alternative to the political path. Evidently, referring a cruel phase of history to the courts to judge offers an alternative to restorative measures. This book grapples with the tension between the juridical and the political paths to facilitating the transition to democracy, social equality, and the recognition of past wrong. I offer a new approach to examining the challenges involved in taking social issues to the courts and, thus, to the analysis of the law. In post-apartheid South Africa, experiences of victimhood have a clear legal dimension; they are importantly shaped by the victims’ subject positions as defined by state institutions and courts of law. But despite its legal and discursive dimension, lived victimhood remains anchored in bodily experiences of suffering, survival, and solidarity. One of the principle tenets of this book is that in today’s South Africa we can only understand how victims live their victimhood and how they attempt to render it politically effective if we combine two strands of analysis that are rarely looked at together: analysis of the law and of the body. I argue that the bodily dimension of being explains both the possibility of becoming emancipated from past experiences and the limits of social change. Following the practices of subject formation, the book traces global connections by linking research sites in South Africa and, by following Introduction 5 a lawsuit filed abroad, the United States. As an ethnography, it relies on an empirically intimate study of apartheid-era victimhood in today’s South Africa to understand larger processes of both legalization and the emergence of the political. The Force of the Law For a long time, legal anthropology was interested in “indigenous legal systems” and looked upon them as the expression of a given society’s prevalent (though contested) cultural norms (S. F. Moore 2001). A newer strand of literature, however, sees law itself as a dominating force affecting the possible forms of sociability within the society in which it is applied. Law is detached from local sociability and culture but influences them by shaping subjectivities. Law is therefore not merely codification of norms that exist outside of law, but also has constitutive power: it ascribes roles and subject positions within a social order whose existence it facilitates in the first place (Nader 2002). The law is a tool, but it is not a neutral one. When people make use of the law, they have to engage with its logic and are changed by this engagement in ways that are often unforeseeable to them. Legal anthropologists have examined the adoption of legal and transnational strategies in a pluralistic legal environment, on the one hand, and the applicability of strengthened human rights norms in non-Western contexts, on the other (Goodale 2006; Goodale and Merry 2007; Griffiths, Benda-Beckmann, and Benda-Beckmann 2005; Meckled-García and Çali 2005; Randeria 2003; Wilson and Mitchell 2003). Scholars have looked at people and groups who mobilize around human rights issues in various local settings, and have found discrepancies between the local applications and the codified human rights framework. The increased use of the courts by civil society actors and appeals to universal human rights standards are linked to the growing importance of professional structures for social action, the so-called NGO-ization. Against this background, scholars argue that it has become part of popular political culture to use rights discourses to legitimize claims. Jean Comaroff and John Comaroff (2007, 141) critically refer to a “fetishism of the law” and a “culture of legality” that “seems to be infusing everyday life” (142) and has become a common feature of the postcolony (Comaroff and Comaroff 2006, 27). The literature on South Africa expresses a general skepticism that the use of the law in post-apartheid South Africa would replace mobilization of a (political) collective, and legal representation dissolve the necessity of a collective 6 Introduction (cf. Robins 2009). The alleged shift “from politics to law” contributes to an “absence of action, thinking and revolt” (Van Marle 2008, 35). Furthermore, legal actions “maintain an injured status” and make redress “a problem of law and procedure rather than a problem of politics and justice” (Van Marle 2004, 370). Partly, this skepticism comes from the valid observation that it is difficult to translate experiences of violence into a legal language (Hastrup 2003; Merry 2008). It is difficult to translate subjective and unspeakable (Das 1996; Scarry 1985) experiences into the logic of legal evidence and knowledge (Fassin and D’Halluin 2005, 2007). More broadly, legal actions are unable to identify the “common good and may even impede certain visions of it which emphasize socio-economic redistribution” (Wilson 2001, 224). The narrow vocabulary of the language of human rights, as Wilson (2001) shows, is negative in the sense that it only tells us what we do not want for the future. Speaking for many, Wendy Brown forcefully argues that the law individualizes collective injury and that it depoliticizes social wrongs (cf. Colvin 2004b, 368–70; Comaroff and Comaroff 2003; Torpey 2003). According to her, everything that is conveyed to the law experiences a reduction that is ultimately traceable in the social realm. When social “hurt” is conveyed to the law for resolution, political ground is ceded to moral and juridical ground. Social injury . . . becomes that which is “unacceptable” and “individually culpable” rather than that which symptomizes deep political distress in a culture; injury is thereby rendered intentional and individual, politics is reduced to punishment, and justice is equated with such punishment on the one hand and with protection by the courts on the other. (Brown 1995, 27–28) For Jean Comaroff and John Comaroff (2003, 466) as well, one consequence of processes of legalization has been the breakup of the collective. As they write, various rights discourses, including human rights, advocate a language of individual rights and thereby promote an “idiom that individuates the citizen” (457). In short, changes in legal subjectivities—increased claims and increased representational claims—are assumed to effect changes in lived subjectivities. This causal link between forms of action and forms of sociality, however, needs to be critically examined. It has often been assumed theoretically, but rarely have scholars tried to prove empirically that taking recourse in law leads to a legalization of subjectivities and to depoliticization. Introduction 7 The Legal and the Social Anthropologists and sociologists have shown that every norm needs social backing in order to become effective in shaping sociability (Popitz 2006). Norms may produce their own certainties, but they do not have agency by themselves. To understand the effects of law, we have to look at the social realm, and at how the social realm potentially changes in relation to legal norms. It is not enough to analyze what kind of image of personhood the law projects without taking into consideration whether this image actually produces realities. If we miss the second step, we commit a legalistic fallacy ourselves, by granting more power to the law than it actually has and painting it as too hegemonic. My perspective on the law and its effects on sociability draws heavily on Bourdieu (1986), who addresses the relation between the law and lived experience. For him, the law holds symbolic power that lies in the fact that it creates what it names (Bourdieu 1986, 383). The law is a form of “active” discourse, “able by its own operation to produce its effects” (839). However, he crucially limits the efficacy of the law: there has to be some social reality in which it can become effective. Our thought categories contribute to the production of the world, but only within the limits of their correspondence with preexisting structures. Symbolic acts of naming achieve their power of creative utterance to the extent, and only to the extent, that they propose principles of vision and division objectively adapted to the preexisting divisions of which they are the products. (Bourdieu 1986, 839) While the law may trigger an alternative form for understanding one’s injury, of redress, and of sociality more generally, it does so only if there is (partially and tacitly) an injury and a discourse of redress, or a lived sociality among victims. A person is not primarily a victim because the law defined him or her as such. Hence, in order to understand the “force of the law” (Bourdieu 1986) on victims, we need to look at the lived reality of those people who refer their concerns to courts. It is in these lived realities, if anywhere, that we can track changes that result from their engagement with the law. The Body and Being in the World Victimhood is often anchored in bodily experiences and bodily being in the world. The anthropology of the body has brought us closer to an understanding 8 Introduction of what it means to be in an injured body, and how experiences of victimhood are shaped by bodily phenomena. The beginning of the anthropology of the body is typically identified with Marcel Mauss’s (1934) lecture “Les Techniques du Corps” (“The Techniques of the Body”).1 Mauss suggested that things we habitually do with our bodies, such as walk, swim, or eat, even sleep, are largely shaped and determined by sociocultural processes. In order to designate “techniques” of the body, Mauss introduced the Aristotelian term habitus, which Pierre Bourdieu elaborated on some thirty years later. For Mauss, habitus is the totality of what we have acquired by learning, consciously or not: bodily skills, habits, and the entirety of nondiscursive knowledge.2 He introduced the powerful notion that the way we use our body influences our identity. Even more, the body is an important instrument of social reproduction. We internalize the social structure by developing habitual techniques of the body, which, in turn, reproduce the social structure. The link between the social and bodily practice was, phenomenologically, established. A little later, phenomenological philosopher Maurice Merleau-Ponty (1962) showed us that we need to understand what it means to be in the world bodily if we want to describe human experience. MerleauPonty (2002, 159) takes issue with Descartes’s emphasis on consciousness as the primary source of knowledge (cogito), saying, “Consciousness is in the first place not a matter of ‘I think that’ but of ‘I can.’”3 The body is a primary means of establishing our perceptual contact with the world. Social sciences engaged with the body more resolutely and purposefully in the 1960s and 1970s, when the interest in symbols and their interpretation as a way to understand a particular culture also turned the body and its symbolic function in a culture into an object of examination (Douglas 1973; Geertz 1973; Turner 1974). Unlike the phenomenologists, symbolic anthropologists thus focused on meaning rather than practice. They drew on the ideas of the structuralist Claude Lévi-Strauss, who emphasized form over content and structure over meaning, and, later, on the poststructuralist thinking of Jacques Derrida, who thought about the body in representational terms. In their work they succeeded in deconstructing Western notions of the body. Derrida’s contemporaries, Michel Foucault and Pierre Bourdieu, advanced the structuralist endeavor, and both of their approaches to social theory had a singular if distinct influence on the anthropology of the body. Their writing marks, one could say, the definitive turn to power and the formation (and Introduction 9 deformation) of the body as objects of study. As different as Foucault and Bourdieu are, the body occupies a central role in the work of both. Pierre Bourdieu (1977) builds on Mauss to introduce a much more closely defined concept of habitus, to which he attributes a strong bodily component. The body is both product of history and source of practice and perceptions. This results in a constant process of production and reproduction of society. Society’s structures are incorporated and actualized in bodily behavior and the institutionalized practices linked to it, without necessarily being explicitly articulated. Bourdieu’s main interest lies in the dialectic between structure and individual agency. He shows how the agency of individuals plays a major role in the reproduction of social hierarchies and contributes to the continuity of social order through time. His understanding of practice as activated— learned—dispositions allows him to uncover the production and reproduction of social classes without employing a deterministic outlook. Bourdieu’s work emphasizes the social production of difference and stresses the role embodied knowledge plays in it (bodily hexis). Bodily knowledge, for him, is not merely an anchor for cultural symbols but also a practical ability. Many later scholars have drawn on this insight. For instance, Jean Comaroff ’s (1985) work on power and resistance, as well, is informed by this new focus on the “socially informed body” (Bourdieu 1977), albeit while retaining a strong interest in symbolism. More recently, Loïc Wacquant (2004), in Body and Soul: Notebooks of an Apprentice Boxer, reflects on the training he undertook to become a boxer. By experiencing the acquisition of knowledge and its progressive habituation, he reflects on himself as a subject of his own research. If Bourdieu gives us tools to systemically look at power in its social context, Foucault focuses our attention on its “ideological” dimension. In his seminal works on prison and on sexuality, he radically re-examines systems of power and of knowledge. For Foucault, the body is a largely passive recipient of structures of power. The body is experience-distant4 and holds little agency. Agency in general and the emancipatory possibility of resistance to domination were not major concerns of his until late in his life.5 Foucault therefore portrays the formation of subjectivities as a largely one-sided process: a subject is constituted by dominant discourses, and structures of social control are “inscribed” onto the body. In consequence of their shared interest in structures, both Bourdieu and Foucault have been criticized for not giving sufficient consideration to the possibility of resistance, individual agency, and social transformation.6 10 Introduction Foucauldian thinking brought increased attention to the body at the very time when theories of practice influenced by both Bourdieu and by the phenomenological thinking of such scholars as Alfred Schütz and Thomas Luckmann (2003) became more important in anthropological theory. In the 1990s, the notion of lived social experience finally entered the anthropology of the body. Unni Wikan’s (1991) “experience-near anthropology” and Joan and Arthur Kleinman’s (1991) “ethnography of experience,” for example, are a clear move away from a symbolic gaze on the body. However, phenomenology has informed only a few ethnographies, which mainly came out in the 1990s. These include Michael Jackson’s (1989, 1996, 2002) writings on the Kuranko in Sierra Leone before and after the civil war, and the works of Paul Stoller, Michael Lambek and others on spirit possession. Unlike older writings on possession, these new ethnographies (Boddy 1989; Lambek and Strathern 1998; Wafer 1991) did not see the body as a representational means alone, but as part and parcel of the experience of trance, transition, and possession. Paul Stoller (1995) among the Songhay in Niger and Mali and Michael Lambek (1993, 1998) in Mayotte considered “embodiment” to be a major dimension of being and performing. Thomas Csordas (1990, 1995) used and eventually coined the term “embodiment” to analyze the relation between experience and the body, the latter being the “existential ground of culture.” In other words, “embodiment” “refer[s] to the anchoring of certain social values and dispositions in and through the body” (Strathern and Stewart 1998, 237). Like Stoller and Lambek, Csordas works from the premise that the self and culture are grounded in the lived experience of being in a body. The theory of the embodied social is virtually omnipresent in anthropological practice today, but it is rarely a defining feature of ethnographies. In many of the more recent studies, the understanding that systems of power have inscriptive force, which is manifest as readable text, still prevails. Paul Connerton (1989, 100–101) places the more recent trend of focusing the textual and representational gaze on the body as being influenced by Foucault, in a tradition of a hermeneutics that privileges inscribing practices: “Inscribing practices have always formed the privileged story, incorporating practices the neglected story, in the history of hermeneutics.” Against this development, we need, in Elizabeth Grosz’s (2004, 3) words, to find “alternative modes to those inscriptive and constructivist discourses that currently dominate the humanities and social sciences . . . where the body is of interest only in its reflection through discourse, its constitution in Introduction 11 representation, or its mediation by images.” The embodiment paradigm is a good starting point from which to clarify the relation between discourse and lived experience, between the individual body and society, and between the researcher’s and others’ bodily experiences. I will come back to this new paradigm and address its shortcomings. The book contributes to an understanding of the body that does not individualize or trivialize, biologize or medicalize, or further a gaze that “others” the other’s body. Such an understanding has to take everyday bodily experience seriously as an object and as a tool of inquiry, and it has to include their habitual and nonpredicated dimension. Consequently, I base this book on four premises. First, knowledge is at least partly bodily and in that sense habitual and nonpredicated. Experiences become habitual through practice and reiteration. From this follows, second, that emancipation from sedimented bodily experiences can only happen through new social and bodily experiences. Third, it is the bodily dimension of being that presents the condition for the possibility of change. Any kind of agency is anchored in sedimented perceptions of the world. In consequence—the body is both the condition for and the limit to the formation of a social or political collective. Embodied experiences thus also hold the possibility of resistance to or emancipation from domination. Finally, dominant discourses shape social experiences, which, in turn, shape bodily experiences. This analytical order—social and bodily—is important because it points to the fact that discourses become effective through—and only because of—specific social realities and lived socialities. From these four premises, I tease out the conditions for the possibility of resisting discourses and of emancipating oneself from experiences one was (forcefully) subjected to. I inquire into these premises at the level of lived experience that emerges from everyday practices. Subjectivities and Subject Positions I do not suggest that phenomenological approaches to the body, such as Merleau-Ponty’s, focusing on the embodied being, and poststructuralist, postmodern Foucauldian approaches to the body as a discursive construction and product necessarily exclude one another. Both leave analytical space for the productive, and hence transformative, dimension of subjectivities. In times when trauma specialists and truth commissions continuously reinforce a narrow, body-bound, and individualized notion of victimhood, we need to be 12 Introduction attentive to what kind of critique of the state and state power is being expressed through the body (cf. Werbner 1998). Many have looked at the “visible” body, for instance, at how people present their bodies, to demonstrate “signs of injury” (cf. Brown 1995; Colvin 2004b). I want to shed light on other subtler, hidden, and tacit forms of trying to deal with and overcome experiences of harm. From different angles, the book tries to understand the ways in which people relate their lived experiences to social and political discourses. I argue that making victimhood socially effective necessitates a shift from nonpredicated to articulated victimhood. I am interested in the ways in which victims connect their selves to discourses and discursive practices, and how their experiences with these, in turn, shape them. This might involve strategic positioning, but in many instances, the very experiences of victimhood preclude any strategic use. I describe the path from nonpredicated to articulated victimhood in a threefold typology, using victimhood, victim subject positions, and victim subjectivity to differentiate the three forms that address the relation between experience and discourse. I speak of victimhood as a state that is self-ascribed and a genuinely intimate and personal experience. Victimhood is often not in the predicative realm. People often do not express it in a discursive form. In this book, I focus on apartheid-era victimhood and on persons who experienced some kind of human rights violation during the apartheid period. This focus might seem to imply that the origins of victimhood lie in the past and that victimhood is merely a relic in today’s society; and it might seem to ground victimhood in a rights model. I argue against both presuppositions. I show the persistence of victimhood beyond the time of political transformation and its reproduction in today’s society. By showing how a partly legal notion of victimhood has been produced in courts and in the working of the truth commission, I chiefly argue that victimhood is discursively formed in an environment that prioritizes a legal notion of victimhood. But the book does not stop at the discursive dimension of personhood. It seeks to understand the embodiment of experiences (which, as I will show, escapes the law and partly resists legal logic). To do so, it takes a strong interest in what is nonpredicated. (I prefer this term to Husserl’s more common “prepredicated” because I do not want to suggest a chronological order. Something predicated can always fade away into the nonpredicated realm, and vice versa.) Of course, victimhood as a state never exists outside a discursively shaped environment (the least from scholarly predication of victimhood). Despite this serious reservation, I adopt victimhood as a heuristic type of being. Introduction 13 In my heuristic typology, victimhood as such is not yet political, even though it is very often formed as a consequence of political circumstances. Injuries are always social. Acts of violence, or continuous and structural forms of violence, happen between two, or more, people even if the perpetrator cannot be identified. For the harmed, the act results in the experience of a shift in his or her social status. The act forces her or him to subsequently live in relation to the person or system that inflicted the act. How she or he views the injury may change, as suggested earlier, depending on the kinds of discursive explanation she or he is exposed to, which, in turn, facilitate new readings of him- or herself. Once a person takes his or her victimhood into the predicative realm and publicly articulates it, the role of victimhood in the person’s subjective experience changes. I call the resulting state victim subjectivity. One’s personhood is now in a relation to other articulated forms of victimhood. Those articulated forms of victimhood stand in relation to what I call victims’ subject positions. Victims’ subject positions are discourses—often dominant ones such as the law—which give ideas and ideals of what a victim is or is supposed to be. Hence, victim subjectivity is necessarily political, as any articulation of one’s subjectivity takes place in a context of discourses. A victim subjectivity thus demands a positioning, consciously or not, vis-à-vis prevailing (and often dominant) ideas of victimhood. Of course, these different positions are not empirically clear-cut. Aspects of victimhood may occupy different positions of this typology, and neither a subject position nor a subjectivity is necessarily stable. A person’s self is “the location of multiple and potentially contradictory subjectivities, each established within discourses and discursive practices” (Merry 2003, 349), and victimhood and victim subjectivities may be in conflicting relations to other ways of experiencing and expressing oneself. Heuristically, the typology may suggest that shifts from one social state to another are unidirectional formations of the subject. This would be a misunderstanding; people do not initially experience the world in a nonpredicated way. I thus do not suggest that the formation of predication is linear. What has entered the cognitive and political realm may again recede into the nonpredicated realm. Also, in South Africa, the category of a “victim” has a history that predates the period under scrutiny in this book. The TRC started its work in an environment with a political and legal notion of victimhood. Contrary to other countries or time periods in South Africa, this book examines a time and 14 Introduction situation where discourses of justice, restitution and victimhood are prevalent. The focus of analysis is thus primarily on the ways in which victims relate their experiences to existing discourses, and on the effects this has on both the discourses and the personhood of the injured subjects. In this typology of states of societal experience, the inclusion of the body is paramount to understanding the conditions for the possibilities of shifts in subjectivities. As Henrietta Moore (1994, 141) stresses, the body has a crucial role in negotiating different subjectivities: “What holds these multiple subjectivities together are the experience of identity, the physical grounding of the subject in a body, and the historical continuity of the subject” (my emphasis). This means that one’s realization that a victims’ subject position speaks to one’s experiences and status in society has a strong bodily and sensory dimension. In order to understand political victim subjectivities, we need to understand what role embodied memories of violence play in people’s everyday actions and how they influence their search for new forms of sociality. Doing Research and Writing about Violence and Victims Experiences of violence can continue in practice after the conflict officially ended (Cockburn 2004; Meintjes, Pillay, and Turshen 2001; Scheper-Hughes and Bourgois 2004). In her work on the Chilean dictatorship, Macarena Gómez-Barris (2009) calls this afterlife. Afterlife captures the “continuing and persistent symbolic and material effect of the original event of violence on people’s daily lives, their social and psychic identities and their ongoing wrestling with the past in the present” (6). In contrast, aftermath, according to her, refers to the economic and political legacy of political violence. This book grapples both with the afterlife and the aftermath of apartheid-era violence. Structural violence is not primarily personal in nature, but the harm and pain it creates is felt and experienced individually (Das 2006; Farmer 1997, 2004; Galtung 1969; Scheper-Hughes 1997). Any account of the effects of systematic violence has to take into consideration these two sides: the structural and the individual, anonymized forms of violence and their effects on individual persons (on embodied political violence, see Feldman 1991; Nordstrom 2004; Taussig 1992). By exploring violence and its effects on the lived experience of victimhood, my work relates to the most prominent discipline in the South African discourse on victims today—that is, to social psychiatry and its “body-bound” understanding of injury and lived victimhood, primarily expressed through the Introduction 15 term “trauma.” Trauma, traumatization, and the diagnosis of post-traumatic stress disorder (PTSD) are pervasive discourses in South Africa today (Kaminer and Eagle 2010). Although the characteristics of continuous traumatic stress under apartheid rule have never been fully investigated (Straker and Sanctuaries Counselling Team 1987),7 there is a fierce debate between scholars who have a psychiatric perspective on trauma and those who mainly argue on social grounds (Summerfield 1995, 1999, 2001; cf. Fassin 2009). A social scientific response to trauma studies can only focus on the social settings in which trauma reveals itself (Das et al. 2001; Reynolds 1995).8 As I do not directly want to contribute to psychiatric or psychological discussions, I will not use the terms “trauma” and “PTSD” here. I seek to find more empirically and social scientifically informed ways to describe how people experience loss and violence and cope with their embodied experiences of harm (cf. Daniel 1996). There is a lack of attention to women’s experiences under apartheid and their ways of articulating them (Gengenbach 2010; Meintjes, Pillay, and Turshen 2001; Merry 2003; Ross 2002; Wells 1983). Although the majority of the people I write about are women, and although writing about women is a political concern for me, the book does not make an explicit argument about gender. In many ways, claimed victimhood is a male-dominated subject position globally. Victimhood is given to women (Govier 2015), but men claim victimhood much more successfully. This is particularly the case with political victimhood,9 a narrow legal category that excludes many experiences of women who have been directly or indirectly affected by civil wars or by entrenched and systematic discrimination and deprivation. In my work I thus not only address particular forms of violence women have experienced under the apartheid regime and their ongoing effects. The book should also contribute to a better understanding of what it means for women to adopt a victims’ subject position in an environment that does not necessarily approve of their claims and in which they are not politically effective. Most of my informants defined themselves as victims. They are members of a victims’ support group, which in itself means they have had to put their selves in relation to that specific subject position. I relied on people’s self-definition and was not concerned with the actuality or factuality of such descriptions. It is not the goal of social science to pass judgment on an intimate self. It was more important for me to understand why people adopt a subject position and how this interacts with their multiple subjectivities; what it does to their social status in society and to their experiencing selves, how it influences their actions, 16 Introduction and how, in turn, this affects society’s understanding of and acting upon a particular grouping. The factuality of victimhood is something the law—and truth commissions, for that matter—has to deal with. It is also something a society grapples with. But for me, questions of factuality form an object for a study rather than the objective of my study. Most of the informants I have been working with have had some “recognizable” or “tangible” bodily experiences of violence. Such experiences may, but do not have to, result in long-lasting injuries (Reynolds 1995). But nonphysical violence may also alter an individual’s sense of self (Menjívar 2011, 9). Examples include verbal insults (Butler 1997), which can, but do not have to, result in long-lasting injury. In my work, I do not conceptually differentiate between physical and nonphysical experiences of harm. My focus on the effects of structural forms of violence suggests a particular understanding of victimhood, though, and generally departs from the legal understanding, which assigns “victim” status based on presentation of evidence of a specific event in which violence was inflicted, a “sign” of injury, and an agent of perpetration.10 In my four years of doing the research for this book (between 2009 and 2013), I lived in South Africa for nineteen months. My prime locales were the Cape Flats, on the outskirts of the City of Cape Town, primarily the townships of Philippi, Nyanga, Crossroads, New Crossroads, KTC, and Langa, and I also visited Khayelitsha, Gugulethu, Bellville, and Mfuleni. However, I traveled extensively in the rural parts of Western Cape province, and in the country. I visited Khulumani branches in the provinces of KwaZulu-Natal, Mpumalanga, Free State, Eastern Cape, and Gauteng and often stayed at people’s homes for a couple of weeks. Among the relationships I developed over the course of my research, I distinguish three groups. First, a good dozen people became my key informants. I had regular contact with them over the four years of my research, and saw most of them on a weekly or more frequent basis when I was in South Africa. I shared part of the ordinary lives of these key informants. I gained a good sense of their daily routines and observed each in different social situations. Second, there were about twenty people with whom I spent a day or more or had an intense conversation lasting a couple of hours. We shared experiences that were often immensely insightful, but I did not get to know them in their everyday lives. Circumstances often kept us from meeting more frequently, such as distance or their occupations. Finally, I met many, many more people in short encounters in groups, households, or at public events. I spoke to them briefly or Introduction 17 heard them talking in public or referred to in conversations. The knowledge I gained from these encounters contextualizes the lives of people in the first and second groups. They were often not Khulumani members themselves but family members, friends, or colleagues of Khulumani members, and thus part of my key informants’ lifeworlds or everyday lives. Also, I interviewed a number of lawyers and other professionals and conducted research in several archives (primarily of organizations). I sometimes declined when someone encouraged me to briefly interview a friend or an acquaintance of his or hers. Being in the area for a longer period, I had no interest in “quick data,” and I wanted to make sure that I would see the person again after I talked to him or her. There was a methodological dimension to this, but mainly, my reasons were ethical. Although I hardly ever directly asked people about their experiences of violence or painful memories, many nonetheless told me about them. Some would start to cry; others would become silent and withdrawn after they had finished. I am not a trained psychologist or a therapist of any sort. I often felt helpless and deeply drawn into the accounts of immense pain. The least I could do, I felt, was to be present over a longer period of time or to help in other ways, such as with writing social grant applications or by driving them to Khulumani meetings, or just being there to show my solidarity and commitment. I primarily worked in “black” communities; most of my informants were originally from the former Transkei and Ciskei homelands, in what today is Eastern Cape province, and spoke isiXhosa as their mother tongue. English was my informants’ second, third, or fourth language. Some, nonetheless, were very eloquent in English, which has been the language of activism and communication across different groups for many decades. I never learned more than basic greetings and some random words and phrases in isiXhosa or other African languages, and I never worked with a research assistant, but there was always someone who would volunteer to translate for me. What I often perceived as a handicap may actually have helped me to become more sensitized to practice, and to the bodily dimension of victimhood that became a major theme in my research. It was not easy sharing a living space with my informants in the City of Cape Town and its bigger municipal area. Most of my informants live their everyday lives in the townships on the outskirts of Cape Town proper, a city that is still very much segregated in practice. While segregation was a legal norm in South Africa, most cities of the world are economically and socially segregated. 18 Introduction We often do not live where our informants live or do not live among them for a very long time. We thus juggle multiple codes as part of our everyday life during research, and the possibilities of habitualization as part of and during our urban research are limited by the multitude of social spaces in which we move. Although the still-prevalent segregation of Cape Town, for instance, was a challenge on many levels (causing me to spend less time and share fewer direct experiences with my informants; cf. Gupta and Ferguson 1997), I did share with my informants and acquaintances the fact that there are nonpredicated or articulated social boundaries. What seems to be an obstacle to following informants across their different socialities is also the condition of the informants themselves: their lives are fragmented and they somehow have to bring different subjectivities into one experiencing personhood. In other words, what counts for the researcher also counts for city dwellers in general: we have to find creative ways to establish and maintain strong intersubjective bonds with people across different forms of sociality and places. Overview of the Book The historical and the ethnographic run throughout this book as two entwined threads. The book traces the Wirkungsgeschichte of the South African TRC and offers an ethnography of apartheid victims and their social recognition in today’s South Africa. The history of the impact of the TRC on the South African society has not yet been written, but almost two decades after the commission held its last hearing, it is time to understand the consequences of the path chosen to mark the transition. We can only fully understand these consequences if we take into account the everyday lives of the victims of apartheid, and ask whether the commission succeeded in facilitating their societal recognition.11 I use ethnographic vignettes and interpret them in relation to my theoretical aims. This approach runs the risk of seeming anecdotic. Although this method allows closeness, it does not allow easy control over the degree of representativeness. The vignettes are based on encounters I had with people; they are very much centered around individuals and their attempts to find a social world in which to live as victims. My interpretations of these encounters are, of course, based on a much broader base of experiences I’ve gained over the years of conducting research for this project; but in the text they remain centered around individuals. Hence, the gap between ethnographic encounters and analysis is more visible than in other ethnographies that conclude on the general more seamlessly. Introduction 19 Chapter 1, “Apartheid Victimhood before the Courts,” revisits twenty years of post-apartheid South Africa in relation to apartheid victims’ standing in society. The TRC, national and international politics, and legal cases filed in South African and US courts have all crucially shaped where victims find themselves today. Since the TRC completed its investigations, and contrary to its reconciliatory approach, the issue of apartheid victimhood has become more judicial. This institutional formation of a victims’ subject position is largely based on initiatives and interventions from civil society in South Africa and abroad. The Khulumani Support Group is probably the most important actor in victims’ advocacy. During the group’s gradual formation over the last twenty years, both its work and its reception have undergone major shifts. Under the Mbeki administration, when the state lost interest in the concerns of apartheid-era victims, the legal avenue proved more successful than political action. The domestic and US cases, in which the TRC, and specifically its shortcomings, is an important reference, have in turn helped to bring victimhood back to the attention of the state and the broader society. Each of the four subsequent chapters examines a dimension of victims’ attempts to move beyond victimhood using the law as a means of emancipation and explores the link between the bodily dimensions of victimhood and emancipation. I look at the potential of both legal procedure (chapter 2, “Reparation, Representation, and Class Actions”) and bodily memory (chapter 3, “Embodied Memory and the Social”) to work against the formation of a collective and political notion of victimhood. In chapter 4, “The Formation of the Political,” and chapter 5, “Emancipation from Victimhood,” I explore the potential of the law and bodily memory to serve as a foundation for a new collective of similarly situated human beings and to provide a basis for social change. Apartheid victimhood has a collective and an individual dimension. Victims share many experiences, but at the same time, they carry their own individual and irreducible victimhood. Legal practice, as scholars caution, overemphasizes the individual dimension of injuries. Consequently, submitting shared social concerns to the courts can jeopardize political solidarity. To examine this claim, chapter 2 highlights the actual workings of courts to show the tension between structural injuries and individual victimhood in class actions. These practices and procedures have consequences for plaintiffs’ subjectivities in their everyday lives. I show this by presenting two ethnographic cases. The first uses the testimony of a victim who singles herself out as an individual. Her account swings between the shared experience of suffering, on the one hand, 20 Introduction and her insistence of her own individual experience, on the other, which she tried to prove to me as if we were in a court of law. The second example shows how being singled out as test case for a class of plaintiffs in a class action suit filed in a High Court of South Africa affected an individual who was chosen to stand in for and represent many thousands of potential plaintiffs. These vignettes show that collective legal action may indeed legalize subjectivities, but that we can only understand its effects on subjectivities from the specific political and social conditions the cases have emerged from. The law derives its force from a societal postconflict situation in which being different makes one potentially suspicious to others who collectively share similar experiences. The subsequent chapters move closer to the everyday lives of victims. Chapter 3 looks again at the individualizing dimension of victimhood. It does so, not through the lens of law, but through the lens of the body. The chapter presents ethnographic data showing how people attempt to communicate their pain: a group of victims fighting memories provoked by a theatrical performance that confirmed their victimhood rather than transformed it; a women struggling with the pressure that exists in today’s South Africa to speak publicly about one’s pain; a woman’s capacity to take on and relieve others’ pain by way of casual chats out of her roadside stall; and a woman’s account of how experiences of political and criminal violence tend to merge whenever the former has not sufficiently been addressed. The vignettes suggest that there is real risk in speaking publicly about one’s experiences, and that silence is a viable option for many. The lack of social recognition victims often experience is partly due to unsuccessful attempts of communication. Society seeks closure and offers victims only a limited number of social roles. Since victims in turn search for recognition by their society, they try to take on the subject positions offered to them—but their experiences are not completely malleable and easily adapted to existing discourses. As a result of the difficulties of articulating one’s experienced victimhood in a socially effective discursive form, victims’ injured personhood often turns them into suspicious subjects in the eyes of the society. Chapters 4 and 5 examine the collective dimension of victimhood and the possibility of collective action based on shared victimhood. Chapter 4 looks at the TRC as a governing institution and analyzes how its governance in relation to victimhood has opened up the possibility of political action but has also constrained social actors trying to emancipate themselves. The chapter examines the conditions for the emergence of a political subjectivity—as a basis for social and collective action—in the context of a legalized and politicized Introduction 21 bureaucratic notion of apartheid-era victimhood. Whereas shared experiences of victimhood foster sociality among victims, victims need to relate to dominant victims’ subject position in order to be politically effective. This requires emancipation from the bodily dimension of victimhood. The chapter presents three different attempts to achieve emancipation: a man who finds solidarity among victims despite his criminal record; an internationally traveled woman who receives strength from her political opposition; and a lawyer who, thanks to his professional authority, momentarily takes his clients beyond their victimhood. The vignettes show that the law (and lawyers) plays a crucial role in making it possible to move beyond one’s immediate experiences. Under specific social and political conditions, the law not only individuates but also has the potential to help create a collective. In contrast to chapter 3, where I show how injuries and bodily memories separate people from each other, chapter 5 highlights the body’s potentiality for social change. To allow incorporated memories of harm to heal, the bodily dimension of injury needs to be addressed. Far outside the TRC or other official institutions, people develop responses to routinized forms of suffering. In many ways, this chapter forms the core of the book. It relates unspectacular practices that explore new forms of sociality based on lived experiences that are not directly related to the dominant discourses. I write about women tacitly sharing their pain by informally coming together for a chat or some tea, about two sisters running a crèche and looking after other people’s children, and about a commemorative meeting for victims, where they are safe to try out new ways of speaking about and seeing themselves. All these practices are fragile and easily disrupted, but the chapter shows that through new social and bodily experiences, people try to add new layers of habit memories to their subjective and social beings. The tentative forms of sociality that emerge may help them to assume a new social position. Many of these practices rely on the continuous performance of a new subject position, for which at least some minimal form of a public is necessary. Chapter 6 reflects on anthropological ways of knowledge production in relation to bodily and sensory experiences. The researcher necessarily undergoes processes of habituation in the course of his or her fieldwork. From this follows the question how we can attend to the experiences of other people once they have become part of our own lifeworld. There are ways through which we can recognize knowledge we have acquired bodily. These moments of dislocation help us to access knowledge cognitively what was previously in the realm of the 22 Introduction habitual or nonpredicated. By way of an intersubjective approach to research, we establish pieces of overlapping perception and thus a nonpredicated access to the experience of the other. A shared perception of the world gives us clues to what is relevant in our informants’ lifeworlds. The conclusion brings the four parallel strands of the individualizing and collectivizing dimensions of the law and of bodily memory together by weighing their respective force in a politicized and legalized environment. The juridification of transitional justice issues through victims’ initiatives has to be seen in a post-TRC context in which apartheid-era crimes have constantly been decriminalized. The apartheid litigations and other civil cases are reactions to the state’s unresponsiveness in matters of apartheid victimhood. This analysis goes against some of the main assumptions in legal anthropology—namely, that seeking recourse in the law does not result in subjection to a discourse; it is the attempt to emancipate from a discourse under conditions in which the law is more promising than the political avenue. The search for emancipation is rooted in the lived realities of victimhood. The conclusion makes the case that the social sciences need to take bodily memory seriously, to understand both the effects and the limits of discourses but also the possibility of their emergence. Bodily memory is the seed for new forms of sociality. Chapter 1 Apartheid Victimhood before the Courts THE SOUTH AFRICAN Truth and Reconciliation Commission (TRC) put the concerns of apartheid victims on the agenda of the state and society. It made victims visible in post-apartheid South Africa. Despite this, victims were not content with its work, as subsequent legal and political developments attest. Why is this so? What kind of politics around victimhood did the TRC trigger? What are the concerns of victims, their demands, and the problems associated with the legal and political routes to finding acknowledgment of their suffering and redress? The South African state has put in place a number of redress mechanisms for the structural inequalities produced by apartheid, from social grants to the Black Economic Empowerment policies, affirmative action, land reform, and land-redistribution programs. Most of these programs do not directly address the injuries people experienced under apartheid rule; rather, they are forward looking, economically oriented, and operate on a primarily individual basis. The majority of them also require that a potential recipient have a certain standing in society in order to successfully claim the benefits. The main institution to directly address the injuries of the past and to be empowered to recommend forms of redress to victims was, of course, the TRC. Much has been written about its successes, shortcomings, and failures.1 The TRC hearings were intended to signal a break with the past by uncovering and condemning the atrocities committed by the apartheid regime. A number of the hearings were broadcast daily on the radio, and South Africans learned much about what had until then been hidden and unknown. The commission called on individual perpetrators of human rights violations to come forward, 24 Chapter 1 but it also had a mandate to investigate companies’ roles in such violations. The commission’s driving forces were theological notions of reconciliation and forgiveness, and it concentrated on the cathartic performance of truth and reconciliation. It was an effort that was globally unparalleled at that time. But the commission was also empowered to grant amnesty to perpetrators who voluntarily came forward and testified about their wrongdoing. If these perpetrators gave full disclosure of their crimes and provided proof that they had been politically motivated, they could be freed from civil and criminal prosecution. The commission took testimony from about 21,000 victims, about a tenth of whom were invited to testify publicly. They testified about the gross human rights violations they or their relatives had experienced at the hands of the former regime. They spoke about experiences of torture, remembered loved ones who had disappeared, and told of family members who had been killed, of being put in detention without a trial, and of other forms of severe ill-treatment. However, many victims’ submissions were not accepted by the statement-takers because they did not fit the TRC’s narrow legalistic categories of gross human rights violations and political victimhood (cf. Cronin 1999, 6).2 Many other victims were not prepared to speak about their painful experiences (Ross 2002, 163; 2003, 172); others did not even know about the commission and its work. As a result, the majority of victims did not testify at all. The major and most prominent measure suggested by the TRC was to provide financial reparations to the victims of gross human rights violations and to the communities that were most deeply affected by the violence. Approximately 12,000 victims received a one-time payment ranging from R2,000 to R6,000, paid out between June 1998 and October 2000 (Crawford-Pinnerup 2000). To carry out its work, the commission attempted to develop a representative definition of victimhood, and in doing so, collectivized the suffering and pain of all survivors performatively (cf. C. M. Cole 2009). It did this, however, by singling out individual victims, who would then speak for all victims and survivors. This idea of a representative, one-size-fits-all victimhood was fictive from the start and bound to fail. Its failures were exacerbated by its individualist approach: by focusing on individual cases, the commission lost sight of structural violence (cf. Feldman 2003; Mamdani 2002). The representation of the majority by the few thus failed in a double sense: it relied on the fiction of healing by proxy, and it remained blind to collectively experienced structural victimhood. Hence, injury ultimately remained individualized, as an act and as a status and, Apartheid Victimhood before the Courts 25 still, for most victims today, as an experience. This has had important consequences in the years after the TRC. After the TRC In the eyes of the international community, South Africa had dealt with the past through the TRC; yet in South Africa, apartheid issues did not end when the commission finished its work. Even though the hearings had run for only fifteen months, in 1996 and 1997, it took the commission’s Amnesty Committee and the Reparation and Rehabilitation Committee an astonishing six years to table their findings and make their recommendations to the South Africa’s president. When the two final volumes of the TRC Final Report were handed over to the president, Thabo Mbeki, in 2003, it was he who decided which of the TRC recommendations to endorse and implement. To the 21,000 listed victims, his announcement came as a shock: instead of the recommended Individual Reparation Grant of R20,000 a year for a period of six years, he granted victims a one-time payment of R30,000 per victim or surviving relative. By September 2008, approximately 16,341 of the 21,000 victims had been assisted, either through payment of interim or final grants.3 By the time the Amnesty Committee completed its work, in mid-2001, it had granted amnesty to 1,160 of 7,094 applicants and rejected 5,392 applications (Du Bois-Pedain 2007, 35–39; Sooka 2003). The TRC itself always made clear that if amnesty was refused, or if perpetrators did not submit an application, criminal investigations should continue and suspected perpetrators should be brought to trial (Du Bois-Pedain 2007, 54). The TRC staff had compiled information about three hundred cases that they thought should be prosecuted. The files were turned over to the National Prosecution Authority (NPA) when the TRC closed down. There were rumors that the South African government was considering initiating what would have been a second amnesty process (Du Bois-Pedain 2007, 54–55; Klaaren and Varney 2000). But Mbeki denied this in a speech to Parliament in April 2003. Yet despite his assurances, the state made little attempt to pursue the cases. As Antje Du Bois-Pedain (2007, 55) noted, “[P]ost-TRC prosecutorial policy can be summed up in a laconic ‘much talk, little action.’” Apart from a few high-profile cases,4 only a small number of trials, against lower level officials, were conducted, most of which resulted in acquittals (Sarkin-Hughes 2004, 373–81). In consequence, “the amnesty intended to be individual turned into a group amnesty. For any perpetrator who was not so identified was a perpetrator who enjoyed impunity” (Mamdani 2002, 34).5 26 Chapter 1 In 2005, the NPA, in line with the TRC recommendations, created the Missing Persons Task Team, whose mandate is to search for the missing graves, including mass graves, of political prisoners. The NPA has since followed up on some disappearances and facilitated the reburial of the remains. By February 2012, it had identified seventy-two individuals, and returned the bones to their families for burial (Aronson 2011; Fabricius 2012). The head of the Task Team, Madeleine Fullard, estimates that there are still another 200 to 250 missing persons inside South Africa, and about two thousand activists who disappeared in exile in such countries as Zambia, Tanzania, and Angola. A strong quest to exhume bodies came out of the victims’ testimony before the TRC. Up until 2003, the commission itself had carried out some fifty exhumations.6 Many questions remain. For example, the TRC archive has not yet been opened to the public. The information it contains is not only important for researchers but also for surviving families seeking to find out what happened to their loved ones. (It would, of course, also provide grounds for civil lawsuits against individual perpetrators.) Issues of confidentiality would need to be carefully addressed; but the state has not yet communicated any clear intention. Furthermore, not until 2005 did the South African government establish the TRC Unit in the Department of Justice, which was supposed to consider the commission’s recommendation of the payment of community reparations. The TRC Unit was established, under rather vague terms, to develop and implement programs for communities particularly burdened by the legacy of apartheid-era violence. The unit’s precise mandate and organization remain unclear, but its programs will be financed from the President’s Fund. Another major pending TRC-related issue is the President’s Fund, which was created by the government under terms of section 42 of the Promotion of National Unity and Reconciliation Act (Act No. 34 of 1995) to fund “all amounts payable to victims by way of reparations in terms of regulations made by the President” (subsection 2) and “all amounts payable by way of reparations towards the rehabilitation of communities” (subsection 2A). Many states, including the Netherlands, Switzerland, and Germany, have contributed to it. The fund is administered by the Office of the Chief Financial Officer in the Department of Justice and Constitutional Development. Since its establishment in the mid-1990s, it has accumulated more than R1billion. The first explicit policy on how the money should be used was formulated only in May 2011. The Department of Justice gazetted draft regulations to govern the provision of basic and higher education and medical benefits for victims and their dependents, Apartheid Victimhood before the Courts 27 and invited responses. The regulations stipulated that only the victims identified and listed by the TRC were eligible. Civil society groups harshly criticized this “closed list” approach and demanded, in the courts, that the process be stopped until “meaningful consultations are carried out with victims and interested parties.”7 In regulations gazetted in November 2013, the Department of Justice and Constitutional Development announced its intention to use half of the fund’s money for infrastructure projects in 18 of the 128 communities the TRC had identified as particularly in need of reparations. For Khulumani, which was not involved in the drawing up of the regulations, it fails to address apartheid victims’ specific needs and represents an abuse of the department’s mandate to manage the fund. Even though the TRC had no executing powers (apart from its Amnesty Committee, which could grant or refuse amnesty), the state’s negligence simply confirmed victims’ ambivalent perceptions of the TRC’s work. These perceptions have been triggered by the state’s failure on two measures that were supposed to facilitate social justice and social equality: the prosecution of perpetrators and the payment of reparations to individual victims and severely affected communities. Measured against the expectations raised by the TRC process, the state has failed on all counts to properly deliver on them. Khulumani Support Group Although victimhood became a legal category for which only some qualified, the commission’s work did facilitate the emergence of a victim subjectivity that had effects beyond the TRC. Across South Africa, disappointed victims started to organize. The Khulumani Support Group was launched in 1995,8 and has grown into a national organization, with provincial, regional, and local branches, all operating under the Khulumani umbrella. It is the only membership-based group of apartheid-era victims in South Africa.9 To date, Khulumani comprises around 104,000 members.10 During my research period alone, between 2009 and 2013, about 20,000 people applied for membership—a number equivalent to the entire TRC list of victims. Members are persons who survived some form of violence inflicted by the apartheid security forces or its collaborators, including torture; detention without trial; sexual assault, abuse, or harassment; banning and banishment orders; deliberate withholding of medical attention, food, and water; the destruction of homes, and the mutilation of body parts.11 Members also include those whose family members were abducted, disappeared, or killed. Only about 10 percent 28 Chapter 1 of Khulumani’s members were officially recognized as victims by the Truth Commission and received reparations (Madlingozi 2007a, 120). Prospective new members usually contact an executive member at home or after a Khulumani outreach meeting, or apply in person at a provincial, regional, or local office. There, they tell their stories to a data collector, who fills in the Needs Assessment Form for them. The data collector is either an active member in a specific community or an office manager. Applicants have to provide proof of identity; sign an affidavit; bring newspaper clippings of the event their injury relates to if they have them; and, if their victim status is linked to a death in the family, a copy of the death certificate. Sporadically, the organization makes statistics about its membership public. They are based on Khulumani’s Apartheid Reparation Database, a project formally started in 2003 when Khulumani launched the Needs Assessment Form, which both serves as the membership application and captures the profile and the needs of the applicants. The latest available data are based on 44,931 entries dating back to October 2009.12 According to the organization, 69 percent of its members are female; 46 percent are single, 40 percent married, 11 percent widowed, and 3 percent divorced. Furthermore, 76 percent of the membership is unemployed; 12 percent are employed; 7 percent are pensioners; and 5 percent are self-employed. Only 4.9 percent of members have one dependent; 10 percent have two dependents; 52.5 percent have three to six dependents; and 32.6 percent have between seven and ten dependents.13 If one considers that 76 percent of members are unemployed and around 85 percent have three to ten dependents, one sees that the material situation of many members is precarious.14 The kinds of violations applicants reported give an idea of what a majority of the membership experienced in the past and still grapples with today. About a third of the applicants reported “extra-judicial killings” of people close to them.15 Forty percent reported “indiscriminate shootings,” which are defined on the form as “random shootings mostly during times of violence by the police, defence force, opposing political groups, and vigilante groups.” About 6 percent of the applicants said they went through “prolonged arbitrary detention,” a widespread practice, especially during a state of emergency. Furthermore, 22 percent of the applicants reported what falls under Khulumani’s category of “torture and inhumane treatment,” which includes torture, police brutality, violent assault with a political motive, and total destruction of Apartheid Victimhood before the Courts 29 property. Finally, 0.4 percent reported that they or their late family members experienced rape, which includes any reference to sexual assault.16 One of three members experienced a killing in his or her family or has a family member who disappeared. An even larger proportion of the membership experienced shootings, which often left them with disabilities or unable to work. Thousands of members were kept in prison without a trial, many in solitary confinement. A fifth of the membership experienced torture or other forms of police violence, including the destruction of property. Members assess their most important needs as follows: medical assistance (20.1 percent), housing (27.8 percent), education (24.3 percent) and employment (27.8 percent). In a breakdown of “urgent needs,” 7.3 percent indicated mental health support; 5.8 percent, support or treatment of disabilities; and 5.5 percent said they needed home care and suffered from chronic illnesses. Almost a quarter of applicants stated that they urgently needed new housing. Education—skills training, adult basic education, secondary and tertiary education alike—ranks highest as an urgent need (46 percent). With regard to age, there is no recent breakdown. The latest data go back to 2006 and are based on only 9,648 members. Of these, 25 percent of the roughly 10,000 members were aged over sixty years at that time, and 5 percent were under thirty. The majority, 70 percent, were between thirty and sixty years old—a broad category that includes members of different generations who experienced apartheid quite differently. The Making of a Victims’ Support Group Khulumani started out as a self-help group with a focus on providing psychosocial support to victims. However, it soon began to focus on politics and made more articulated demands for reparations. This shift was partly the result of internal developments within the organization, but broader political and social changes were much more important factors. One major factor was an increasing frustration with the TRC process. Five years after the TRC had completed its hearings, the victims had still not been paid individual reparations, and many of them felt it was time to take a more aggressive stance toward the government. Less tangibly, people started to realize in the early 2000s that economic change in their lives had yet to come (Robins 2005); and from about 2004, public protests throughout the country confronted the state on the nondelivery of services. This, too, contributed to an increasing politicization of 30 Chapter 1 Khulumani members and to what may be best described as a turn to the state in Khulumani’s work.17 The second shift within Khulumani can be called a move from “charismatic leadership” to professionalization.18 In Khulumani’s early years, a few founding members led the formulation and articulation of victims’ concerns.19 Khulumani’s origins are closely tied to the TRC, especially to victims’ testimony, and its early leaders, victims themselves, came to epitomize the victim who engages with the TRC and demands to be listened to. The victim subjectivity of these early leaders was closely linked to the national project of reconciliation and justice. They were critical voices, even though at the time real transformation still seemed possible. Many important Khulumani members had been fieldworkers who had assisted the TRC in its deeply complex work before becoming more fully involved with Khulumani and its programs. The political climate radically changed in 2003 following President Mbeki’s announcement that the state would act on the TRC’s recommendations in only a limited way. Also, the apartheid litigations were filed in 2002. It is in those years that Khulumani started to “professionalize”—that is, to undertake a partial shift from loose and voluntary to more stable, bureaucratic, and internationally oriented governing structures. Today, half of the staff at the national office still see themselves as victims, the other half do not. As is the common practice globally, private donors mostly provide most of Khulumani’s project funding.20 As a consequence, the national office frequently employs temporary and part-time international interns sent to it by partner organizations from abroad. Apart from the advocacy coordinator, who receives a salary, the information manager, the program leaders, and several fieldworkers work on a voluntary or sporadically paid basis. The person who has been central to the growth of the organization in the past few years is executive director and ex officio national board member Dr. Marjorie Jobson.21 The everyday governance of the organization is carried out by the board and the management.22 Khulumani’s main decision-making body is the National Steering Committee, composed of delegates from the provinces. To live up to its constitution and to democratic standards, Khulumani would need a well-functioning system of presentation and representation between all levels. Instead, the director, together with the board or the staff at the national office, takes many decisions without consulting the membership. This small circle of people in governing positions is the result of the emergence of a few key figures within the organization who have not only the skills and the Apartheid Victimhood before the Courts 31 educational background but also the stability in their lives to dedicate much of their time to the organization. South Africa presents a spectrum of forms of social organizing. On the end of the spectrum, one finds an increasing number of professionalized NGOs. Due to the exigencies of donor funding, a small professional leadership earns good wages while claiming to represent their constituencies. This model is increasingly negatively critiqued by scholars, who fear an NGO-ization of the civil society. At the other end of the spectrum, many forms of popular mobilization (e.g., the recent service delivery and student protests) rely on instant organization around a particular grievance or set of grievances (cf. Alexander 2010). Khulumani holds the middle ground between both types. It is a membership organization that ultimately depends on the initiatives of individual members in all the villages and towns of South Africa in which the organization has offices. Khulumani has no research mandate, no well-paid positions, and few resources, and, most importantly, the work it does is continuously evolving in line with the needs of its members. The mandate that the executive and the membership had set themselves is a highly complex one. Its internal dynamics are, therefore, also difficult to compare with those of other NGOs. The national leadership straddle two fields: they seek recognition from the international arena of human rights, but continuously have to reflect on their own capacity to recognize Khulumani’s membership not only as a constituency but as the only reason the organization remains alive and necessary. The provincial and regional leaders have gained considerable expertise in how to keep the organization going. They constantly reconstitute and reinvent what Khulumani is and what it stands for in very creative ways, with next to no financial resources. Even more difficult is the position of leaders of the local branches, many of which are always on the verge of collapse. The strain of the everyday life may easily erode a leader’s capacity to function effectively; if she or he gets sick or takes a full-time job, it jeopardizes the Khulumani activities in the area as well as that group’s links to other branches and to the national office. Local activities simultaneously depend on the capacities of individual leaders and on their recognition by the membership. Trust is essential. A leader can be trusted or mistrusted, sometimes because of his or her role in the past, but also because of his or her ability to balance the needs of the different communities or individual members in a fair, impartial way, and to reliably and effectively communicate information to the membership. 32 Chapter 1 Local Khulumani leaders and members relate to the organization through their lived experiences as victims. For some, membership is an opportunity to assume a leadership role in a community, but for most, the local group is a place where they can find solidarity with other victims. They, however, rely on the national leadership for guidance and acknowledgment, for keeping up the flow of information, and to do the lobbying and advocacy work. The national activities produce a more receptive public and actively shape the discourse around apartheid-era victimhood that, in turn, is important for the success of the local activities. The national leadership in turn depends on the membership and the provincial and local exponents. To speak as a membership organization, it needs a visible and active membership in the first place. It initiates programs that have to be rolled out in the communities. Beyond that, the administrative and governing leadership of Khulumani draw much of their inspiration from members themselves. Khulumani’s professionalization on the national level was partly driven by the necessity of articulating victims’ concerns vis-à-vis the state. Communicating with a government that, outside the TRC, has largely been deaf to those concerns seemed to demand a level of organizational sophistication and professionalism, including a series of documentation projects (one of them the database). The relation between the state and Khulumani has been erratic and changeable. Whereas Khulumani has employed both collaborative and oppositional forms of engagement, several ministries have shown inconsistent and unpredictable support and poor follow through on expressions of interest. Khulumani has repeatedly offered the government its advice and networks to help in planning projects and programs. State institutions generally show little interest, and only engage with Khulumani when they have a specific need for its expertise or constituency, or want access to its database (which Khulumani usually denies). Khulumani has not managed to establish a working relationship with a ministry that lasts longer than an elective term. The Mbeki administration in particular blocked the organization’s efforts to work with the state. At the same time, Khulumani has received a great deal of attention from the international media because of the apartheid litigations, the Zuma administration’s tentative withdrawal of the state’s opposition to the apartheid litigations in 2009, and some successful interventions in the state’s policies and practices around indemnity and pardons for apartheid-era perpetrators. Despite these successes, Apartheid Victimhood before the Courts 33 the state’s response to Khulumani’s demands and offers remains unpredictable and unsatisfying for Khulumani. The state has not made any advances toward the recognition of an apartheid-era victimhood that goes beyond the TRC list. Khulumani has forged partnerships with a number of civil society organizations and NGOs to sponsor programs or projects with and for apartheid-era victims. These groups are all more or less stable and close partners of Khulumani and its regional groups.23 There are sporadic battles of personalities and interests between Khulumani and its partners, but the partners do not pose a threat to Khulumani as an entity. Hence, Khulumani has managed to become the almost uncontested voice for apartheid-era victims; no rival group has a similar reach and standing. In its own work, Khulumani has a broad conception of victimhood. The organization adopted a multigenerational approach by trying to get youth involved in projects dealing with the legacy of the past. It makes no distinction between military veterans and other victims, even though Khulumani largely speaks for those who have not received military training and official recognition. The state, however, does distinguish “general” victims from military veterans, and actively works with the latter. Khulumani’s activities have recently also expanded to include other forms of victimization, such as the plight of foreign nationals who have been targeted in the so-called xenophobic attacks in South Africa. More recently, collaboration with Zimbabwean human rights groups has strengthened around questions of a possible truth commission and with regard to the Zimbabwean refugee population in South Africa. This new inclusivity is most apparent discursively on the national level and is not always realized in the daily workings of the regional branches. Khulumani has come to stand for apartheid-era victimhood, and it undertakes membership-based and professional activities that rely on this subject position. It is not yet clear how far members’ notions of victimhood can be extended in response to theoretical reflections, and how far their solidarity can expand to other groups. The answer will most likely depend on the experience of victimhood members make, and the kinds of victimhood they relate to in their perception of their lived experience. If apartheid-era victimhood increasingly recedes into the background because more structural and current forms of marginalization and exclusion are shaping the daily experiences of Khulumani members, their notion of victimhood is likely to change. Khulumani as an organization, as it operates today, is chiefly bound to members’ experiences of victimhood. The memory of experiences of violence 34 Chapter 1 is not only its raison d’être but also its driving force. It seeks both the recognition of victims in society and victims’ emancipation from their experiences of violence. For that, creating a responsive public that recognizes experienced victimhood and that allows for shifts of victim subjectivities is crucial. Victims in Courts An essential part of Khulumani’s fight for the recognition of apartheid-era victimhood has been fought in courts of law (see Kesselring 2012). For most Khulumani members and for the leadership, this was not a choice but a necessary reaction to political developments. The Truth Commission’s mandate was controversial from the beginning (Giannini et al. 2009, 17). A core provision of the TRC Act was challenged in South Africa’s highest court, the Constitutional Court. In Azanian People’s Organization (AZAPO) and Others v. The President of the Republic of South Africa and Others,24 victims alleged that the possibility that perpetrators would be granted amnesty deprived victims of particular rights as protected in the Interim Constitution of 1993. Victims were concerned that the granting of amnesty waived both civil and criminal liability. The Constitutional Court ruled that the granting of amnesty was constitutional. The decision made clear, however, that the amnesty process was a one-time event in a unique moment in South Africa’s history, and that perpetrators who failed to satisfy the amnesty requirements could face civil and criminal charges. It thus argued that victims had not been deprived of the right to seek prosecution. In justifying the possibility of amnesty by the extraordinary circumstances given in the TRC process alone, the court, as well as the commission’s practice, made sure that processes of granting amnesty to or pardoning perpetrators became fiercely contested in the 2000s. In fact, the Constitutional Court’s decision was successfully interpreted as granting victims the right to participate in such decisions. On December 1, 2005, the Ministry of Justice promulgated amendments to the prosecution policy concerning prosecutorial discretion. Victims understood the policy amendments as a clear indication that the Mbeki administration wanted to move away from concerns with the past. The amendments added an append