Warning: contains a graphic image
No doubt, the astounding success of the Civil Rights movement in the last half of the twentieth century at ameliorating the situation of African Americans and of the model it offered other oppressed groups fighting for their rights in American society has lured the citizenry into believing that when it comes to the task of moving the country towards a “more perfect union”, law remains the best tool to enact fundamental social change. This partly explains the general obsession by groups across the political spectrum with judicial appointments, especially to the Supreme Court, the locus of the exercise of judicial power enshrined in the Constitution. In the following discussion, I challenge this preoccupation and the faith it embodies.
When it comes to the original sin of the United States that continues to obstruct its path to being the kind of civilization envisaged in its founding utopia, chattel slavery and the anti-black racism developed to justify it, recent rollbacks of the gains made under the inspiration of the civil rights movement, especially when it comes to the fate of African Americans in the country, are clear, even if sad, reminders of the limits of judicial power.
I argue instead that what the country needs is what has availed other countries that have had in recent times to acknowledge wronging and harming certain segments of their population and coming to the realization that to make their countries whole again, they must make whole the victims of the hurt inflicted by the larger society: the Truth and Reconciliation mechanism.
Here is the central question I use to highlight the limits of judicial power: Does the United States need a Truth and Reconciliation Commission (TRC)? My answer is a resounding YES! But this is not the place to make the case for it. The task here is to get us to see the need to re-examine our exaggerated belief in the legal system as an avenue to lasting social and political change.
What need would a TRC fulfil for the United States? Even in an era dominated by a not-too-disguised socio-philosophical nihilism – whatever fine epithets it goes by – in which it is almost a crime to have, hold, and seek to realize the picture of a better world, the fact is that the United States was founded to be a polity of a new kind such as the world had never seen. It matters less that they subverted their own capacious formulations by embracing chattel slavery. When slavery ended, successor regimes, seized of a view of black people as less than human – a view that had been crafted to justify the wrong of slavery – have been ever unwilling to do the needful work to move the country closer to its founding ideal by redeeming the promise of citizenship for its black members. Rather, they have persisted in lying to themselves and to successive immigrant cohorts that the only reason blacks do not do well in America’s space, especially at present, is because of inherent defects in black people and their culture. We continue to pay lip service to this ideal, its desirability, and its attainability. If this is true, how might the country be moved closer to this ideal? Certainly, those who think the original ideal is a lie or that it is no longer relevant to our time are unlikely to be persuaded. But for those who are exercised by the continuing chasm between what the country claims or aspires to be and what it has been, and what this has meant for the securing of the best life for common humanity within its borders, we submit that the TRC mechanism is tailor-made for such situations.
The TRC mechanism is required not merely to reduce the chasm between the country’s founding utopia and its history of repeatedly falling short of its realization. It is also the path to reopening the question of the centrality of the black experience to the very constitution of the political and constitutional lore of the country: the ultimate measure of how well or ill the republic does is how or if it ever redeems the promise of full citizenship for its black inhabitants. The problem is that this element has been obscured in the much-vaunted exceptionalism of the country and the mistaken, even if widespread, belief that that issue has been definitively resolved by the success of the Civil Rights movements of the last century. Additionally, given the popular interpretation of the TRC mechanism as an instrument for what is now called “transitional justice” with its near exclusive focus on contemporary happenings, it is no surprise that many would think that the United States is not the kind of country to whose history and circumstances a TRC is relevant. I challenge these assumptions. The TRC mechanism is not a strictly legal instrument and it is not designed to procure “transitional justice” for those who have been wronged. Although the mechanism is usually constituted by law, it is, at best, a quasi-legal mechanism. What is distinctive about its adoption is that it usually marks a recognition of the limits of law. The countries that have chosen it find themselves having to come to terms with incidents in their collective lives in which particular segments of their populations have been subjected to violence, predations, up to and including genocide in the extreme case, and needing to do three things: acknowledge, for the record, what has taken place; establish who did what, when, and to whom; establish protocols for ensuring that things never come to such a pass again in their collective future. The ultimate goal is the reconciliation of their peoples and restoration to wholeness of everyone concerned and the geopolity that they call home in which their lives unfold, collectively.
The twentieth century gave us Nuremberg as well as the International War Crimes Tribunal that sat in Paris in 1972 to examine United States’ involvement in Vietnam and that saw the active involvement of Bertrand Russell as chairman. Then, in the aftermath of the war in Bosnia-Herzegovina and the genocide in Rwanda, other war crimes tribunals were empanelled in The Hague and Arusha, respectively, and their charge was to “mete out justice” and punish those found guilty. In all such cases, the perpetrators involved had either lost in war to those who tried them, as in Nuremberg or Rwanda, or had lost in the bar of public opinion and morality, as did the United States in Vietnam and, in the main, Serbia and Croatia in Bosnia-Herzegovina. In such countries, the triers and the tried do not have to live together or work out any modus vivendi for future interaction within the context or, perhaps one should say, within the confines of a single geopolitical entity and unitary citizenship.
The TRC model is opposed to the preceding that I call the Nuremberg model which is the model of legal resolution, par excellence. The TRC differs from the Nuremberg model precisely because it sets its sights beyond the justice promised by law and it is less motivated by desert than it is by creating a more salubrious future for the society concerned. I argue that the recourse to the TRC mechanism is a repudiation of law as an appropriate or effective instrument for the achievement of the understanding, unity, reparation, healing, forgiveness, and transcending of the conflicts of the past that the relevant society needs to move forward as one in the aftermath of the depredations that necessitated the TRC in the first place. From East Timor to South Africa, it is an admission that the Nuremberg model with its recourse to law was inappropriate for the more fundamental goals of a new society. Such an admission may have been prompted by the general recognition in the South African case that law was a principal instrument of the apartheid state and was, for that reason, a suspect tool to repair the damage done by apartheid while it lasted. I argue presently that this is equally true of the United States.
I cannot lay out all the divergences between the legal model and the TRC model here. But here is one for purposes of illustration. The motivating force of the law, especially of municipal legal systems, is that of desert, its principal form of resolution is that of punishment or retribution. A basic aim of the polity that adopts the Truth Commission model is to promote national unity and reconciliation. Suppose, in line with the Nuremberg model, South Africa had chosen, in the name of serving the cause of justice, to lock up F. W. de Klerk, the last President of apartheid South Africa, for crimes committed under his direction. How would this have helped a South Africa that not only acknowledges a common citizenship for all its inhabitants but is, at the same time, desirous of creating a civic culture out of this broad cloth?
The extreme focus of law on specific perpetrators and accessories to the litigated act is bound to fall short of the accounting that a society needs where the wrongs committed against a segment of it form part of its collective morality and many of those acts that might come up for litigation were, when they happened, communal events in the enactment of which significant proportions of the community participated. Let us, for a moment, ignore the daily aggravations of what is now tagged “living-while-black” in the United States. Under Jim Crow, for instance, lynchings were often community events complete with people wearing their Sunday best, packing picnic lunches, and having a good time against the backdrop of their fellow black citizens’ burning bodies on tree-turned-grills. We cannot charge people for that. But we must reckon with a mindset that was so denuded of the sympathies that typify citizenship that it made it okay to enjoy a meal and familial bonhomie in such settings. Yes, the United States is exceptional in many respects. But one aspect of that exceptionalism puts the country in the same category as other lands that have elected to embrace the TRC. I would like to argue that what ails the United States when it comes to its treatment especially of blacks and other minorities is not much different from what ails other societies where grievous harm has been done to groups within them and are desirous of making the victims of such harms whole and thereby emplace a good society.
Our attention turns on the society that is most like the US in this respect: South Africa. The citizenship of black people, native or immigrant, in the United States is perennially degraded; never full. All the presumptions – innocence till proved guilty beyond all reasonable doubt; common ownership of the American space; freedom of movement, etc. – that make the country a modern polity with a robust commitment to the dignity of its sovereign subjects have only been extended to blacks in the stingiest of fashions. Black citizenship is never routine; blacks can never take their citizenship for granted! The place of blacks in the American scheme was set by the place of slavery in the very foundation of the American polity. Although things did not start out that way, however it was done, slavery changed everything once it was encoded into the very constitutional order at its inception. In the American consciousness, there is no idea of a black person who is free in exactly those ways that modernity promises and who, as a consequence, is deserving of the sovereignty, dignity and respect for that dignity that is the common inheritance of all subjectivities. At no time has the nation, as a matter of political morality, and as a corporate entity, taken responsibility for the enslavement of black people. At no time has there been an admission that the very foundation of her stupendous wealth is traceable to the unpaid labour of millions of enslaved blacks. What is more, as a nation of immigrants, many who came later justly claim that they owe the descendants of black slaves nothing since neither they nor their forebears ever “harmed” or “deprived” any black person of their freedom, their property, or their inheritance. No one makes it a part of the civic education of adult immigrants or the education of generations of immigrant children the true history of the country and the centrality of black dehumanization, deprivation, and dispossession that are core building blocks of the edifice that they inherit. What Archbishop Desmond Tutu called “amnesia” in describing the challenges to finding an appropriate mechanism for dealing with the trauma of apartheid after the collapse of the system in South Africa is what has characterized the relationship of America to slavery. What is scandalous is how little attention is paid to the place of the black experience in the constitution of American identity and how much slavery has structured the place of blacks in the American consciousness or that slavery does not fully exhaust the multidimensionality of the black experience in America. The arguments for reparations which are becoming more prominent are not gaining traction because too many, I am inclined to say most, Americans have a very limited knowledge of what really went down for black people starting with the racialization of slavery all the way to the present. That for blacks, it is almost a miracle that they are here at all, much less thrive as they have. They have thrived in spite of, not because of, what America has offered them. To say that African Americans have ever had a break in the United States is to abridge the truth, if not an outright lie. That is, the truth about African Americans is not widely known. Were it better known, we might actually have decent people squirm at the vicious and ugly underbelly of American history. And this would, minimally, generate discussion. It does not mean that more people will have a more wholesome view of blacks but they will, at least, be forced to have a reason for hating; a responsibility that is elided at the moment. But, by the same token, it may move more people to engage the debate and acknowledge what the country, corporately, has done to its black people. It will take care of the bystander, “I didn’t know” that happened, alibi. If the evidence from South Africa is to be believed, this, knowledge, is a sine qua non for any talk of reconciliation. And, definitely, we cannot get to a good society without reconciliation.
African Americans have never been reconciled because America, led by white America, has never acknowledged the truth of what it did to black people. Apologies are not enough. In any case, they have never been broad; merely episodic. What is needed is a political plan designed to enable black people to realize full citizenship based on a commitment from whites to own up for the wrongs perpetrated against black people informed by full disclosure of the savagery and ugliness of slavery and its role as one of the significant yarns from which the fabric of American society as it is today was woven.
It is this need for truth, completely unburdened by legal equivocations and political double-talk, that made those societies do so that chose the TRC model to deal with the aftermath of crimes against humanity committed by some members against others as a condition for ensuring that all know how low their communities sank and pledge, again as a collectivity, to forgive but never forget, and forever ensure that their collective resources are mobilized for repairing those that have been damaged and, for the rest, make unacceptable any denial of responsibility on the part of the perpetrators and their descendants.
This is the problem that no amount of legislation, the legacy of the Civil Rights movement, especially given the clawback from the gains by the same doctrine of equal protection that engendered much of civil rights legislation, can solve. It is not a legal problem; it is one of political morality. A commitment on the part of the country, as a corporate entity, to redeem fully for African Americans the promise of citizenship becomes no more a legal matter but one of realizing that founding utopia at its inception. A willingness to commit the appropriate resources to ensure that we eradicate the racial underclass will no longer have to pass hair-splitting constitutional tests. In such a situation, the descendants of those who had inflicted pain in the past will acknowledge that wrong had been done to some segment of the population whose descendants deserve to be made whole in the present. Such remedies become necessary for the building of a future society in which there will be no need for them and where all of America’s peoples shall be reconciled. In such a society it will never be acceptable again to think, much less act, as if there is any part of America’s space where Americans of African descent may not make their place, if they can otherwise afford to do so. It would entail a makeover of the American imaginary in which it would no longer be considered okay to be racist as long as it does not violate the law. We would no longer have repeated litigation questioning the legitimacy of committing extra resources to ensure that less circumstanced members of our human family do not lead less than human lives.
That the justice promised by law for some white beneficiaries of extant race-derived privileges might be abridged must not be denied. But that society cannot be whole until it has made its historically disabled minority whole, too, will be the ultimate, even if legally inconvenient, justification for upholding such remedies. The issue is not whether it violates the law, but whether we can arrive at a good society without it. That is the ultimate justification for the question at the heart of this discussion.
Olúfẹ́mi Táíwò is professor of Africana Studies at Cornell University and the author of How Colonialism Preempted Modernity in Africa (2010). His work, which has been translated into German, Italian, French, and Chinese, aims to expand the African reach in philosophy and, simultaneously, to indigenize the discipline. He can be reached at firstname.lastname@example.org.
From The Philosopher, vol. 108, no. 2 ('Questioning Power').