Addressing Harms and Restoring Dignity: Reparative, Restorative and Reconciliatory Justice in the Southern Kalahari

Abstract

Using the frameworks of reparative, restorative and reconciliatory justice, this article explores the impact of the South African Truth and Reconciliation Commission and the Land Reform Programme on harms caused to the ≠ Khomani San of the Southern Kalahari. These harms included dehumanisation, fragmentation and genocide during the colonial and Apartheid periods. We show that, despite its objectives, the TRC failed to acknowledge the dignity and humanity of the San, reaffirming their erasure. Land restitution by restoring rights offered the community the means to address deep structural harms, restore human relationships and re-claim the narrative about themselves for a broader emancipation. The broader cultural space of reconciliation opened up by the TRC and the restoration of land rights to the ≠ Khomani San enable them to re-claim the truth about themselves and their contemporary belonging in South Africa’s landscape.

INTRODUCTION

In 1999, the ≠ Khomani San community in South Africa was awarded one of the largest land claims in the post-Apartheid period under the Restitution of Land Rights Act of 1994. This landmark decision entailed the initial transfer into collective ownership of six farms—Erin, Andriesvale, Scotty’s Fort, Miershooppan, Witdrai, and Uitkoms—and 25,000 hectares of the Kgalagadi Transfrontier Park, and two more farms—Sonderwater and Rolletjies—in a subsequent phase.

The Restitution of Land Rights was one part of many in South Africa’s historic transition, drawing together the twin approaches of restorative and reconciliatory justice to address the harms caused by Apartheid in a transformatory approach to building social cohesion and addressing structural violence in the new South Africa. This approach included a Truth and Reconciliation Commission, a land policy framework for restoration of land, redistribution of land and security of land tenure, and an extensive public works, housing, and education program.

In this essay, we explore the impact of the Truth Commission and the ≠ Khomani San land claim in restoring rights and reconciling communities in the Southern Kalahari. The essay is based on multiple periods of ethnographic fieldwork with the ≠Khomani San community in the Southern Kalahari, South Africa. We claim that, despite the successes of the truth and reconciliation process across South Africa, it did not erase the harms caused to the San. The land claim, in contrast, opened the possibility of reparative, restorative and reconciliatory justice for the San in the Southern Kalahari, and enabled the building of a new narrative to address harms and restore dignity.

REPAIRING HARM: REPARATIVE, RESTORATIVE, AND RECONCILIATORY JUSTICE

Reparative justice seeks to repair harms, by addressing the consequences of harms caused by atrocities such as genocide, war crimes, and crimes against humanity. It is both legal and psychological (Mani 2005, 522), as well as social and structural. It “acknowledges the real harm committed and suffered, and recognizes that this harm may never be fully restored or transformed” (Mani 2005, 524). In this essay, we conceptualize reparative justice as attempts to repair harm through the use of reparative measures to address and to compensate for deep structural harms.

Reparative justice is a parallel concept to restorative justice that is “concerned with restoring human relationships, both between victim and perpetrator as well as within a larger community or group. Its origins can be found in both indigenous justice and in faith traditions” (Boesenecker and Vinjamuri 2014, 39–40) and is frequently employed in Global South Indigenous postconflict processes. This is fundamentally important in states where their specific integration into the world capitalist system, and consequences of such, prevents broader structural and socioeconomic transformation. As such, we conceptualize restorative justice through its aims, specifically to restore rights, often of victims, perpetrators, and communities. In restoring rights, reaffirming humanity and dignity can enable communities to engage in meaningfully addressing harms.

A related concept to restorative justice is reconciliatory justice, which we conceptualize as attempts to reconcile communities through actions that acknowledge the past, in order to change the future, in a future-orientated approach. Frequently, this entails truth-seeking and bridge-building activities that can lead to increased trust, helping to restore societal reconciliation (Fiedler and Mross 2023). Truth commissions, comprising collective and public memory work, help to build a new national narrative and may contribute to increased social cohesion.

These three approaches often work together in parallel. Unlike other transitional justice processes—international courts and retributory justice processes—that have become common in postconflict peace processes, “actors pursuing reconciliation and restorative justice are more attentive to deeper structures of inequality, discrimination, and oppression that are often at the root of conflicts” (Boesenecker and Vinjamuri 2014, 40), enabling deeper social, economic, and collective harms to be addressed. In this essay, we draw on all three conceptual framings to explore the situation of the ≠ Khomani San in the Southern Kalahari.

SAN MARGINALIZATION: THROUGH COLONIALISM AND APARTHEID

The San are widely considered to be one of the most marginalized groups in Southern Africa. Traditionally comprising hunter-gatherer communities, the San were subjected to dehumanization, fragmentation, and genocide on a large scale. During the colonial period, they were considered vermin and hunted. Human skulls collected by colonial trophy hunters were collected and transferred to “scientific” establishments for further study (Stahn 2023, 238). Hunter-gatherers were positioned at the very bottom of the nineteenth-century racial “civilizational” hierarchy. Treated as exhibits, to please and to thrill the exoticist desires of Western colonial audiences, Khoisan people were displayed and paraded in nineteenth-century human zoos (Půtová 2018), dehumanizing San and further enabling colonial practices. Across Southern Africa, hunter-gatherers were forcibly displaced by British colonialism, alienated from access and usage of land that was stolen to make way for settler farms and game reserves, and relegated to the margins of colonial society and economy.

During the Segregationist and then Apartheid periods in South Africa, the continued othering, dehumanization, and displacement of San people continued through the racialized categories ascribed at birth to all South Africans under the 1950 Population Registration Act. San were designated as “coloured,” a negative racial identity, grouping together all people who did not clearly belong to all other categories (Brown and Deumert 2017, 574). This forced assimilation and acculturation, when compared to the fate of other South Africans—compared to “native” (racial term) and “Zulu” (ethnic term), the “coloured” category stripped Bushmen both of their “blackness” and their indigeneity. Further, “that being made ‘coloured’ is both culturally a fabrication and, materially, an alienation from one’s birth-right” (Burnett et al. 2022, 9).

Under segregation and Apartheid, the majority of San existed in servile relationships, some roaming from farm to farm in search of casual employment or living on the margins in the Kalahari Gemsbok National Park. Between the late 1930s and 1970s, extensive Apartheid-forced displacement across South Africa had forcibly removed the majority of the contemporary ≠ Khomani San to the Mier reserve designated for “coloured” South Africans. All of our participants in the Southern Kalahari recount these narratives of forced displacement of the community and the collective trauma of being frequently on the move.

By the 1990s, another prevailing discourse, that of the extinction of the San, served to re-erase the San again. This extinction discourse negates claims of the San being a distinctive community because of the view that they were comprehensively destroyed by colonialism and Apartheid (Verbuyst 2021, 68) and because of their assimilation and acculturation to dominant and Apartheid-era categories.

The harms created by this direct, structural, and cultural violence against the San are widespread. Atuahene (2014) refers to “dignity takings” in the context of the removal of property, from people considered to be of less worth to dehumanize and infantilize (Hickey and Killean 2021). Such harms for the San, at the point of the ending of Apartheid, included dehumanization, forced assimilation and acculturation, genocide, alienation from land and birthright, destruction of cultural heritage and language, acute socioeconomic marginalization and loss of livelihoods, infantilization, destruction of social structures, deprivation of community ties—both social and emotional, denial of dignity, and erasure.

In addition, one of the distinctive features of the harms caused to the San of the Southern Kahari is that much of the earlier trauma and harms exist as collective second-generation memories and impacts. The older generation within the community vividly remembers their direct experience of forced removals, dehumanization, and destruction of social and cultural structures under Apartheid. But, for many people, the knowledge of this collective harm and the colonial genocide is inherited as oral histories, experienced through the contemporary impact of those first-generation harms, in what Orjuela (2020) might refer to as “shadows” (378).

In 1994, when the new democratic South African government came to power, these harms continued to exist among the San and the new Truth Commission and Land Policy Framework ushered in became the tangible way in which harm to the community would be addressed.

TRUTH: RECONCILIATORY JUSTICE AND THE #KHOMANI SAN

In 1994, South Africa passed the Promotion of National Unity and Reconciliation Act, No. 34 of 1995, which created the Truth and Reconciliation Commission. Embarking on truth seeking as a route to acknowledgment, increased trust and reconciliation, the commission operated over a four-year period in hundreds of public hearings across the country, televised and broadcast on a daily basis to all South Africans. The commission provided public memory work, in which thousands of people told their stories and received acknowledgment. This contributed to building a new national narrative about South Africa’s past and set out measures to be implemented to acknowledge suffering, and to build social cohesion. According to Desmond Tutu (2000), “Our nation sought to rehabilitate and affirm the dignity and personhood of those who for so long had been silenced, had been turned into anonymous, marginalized ones. Now they would be able to tell their stories, they would remember, and in remembering would be acknowledged to be persons with an inalienable personhood” (30).

However, although the broader environment of South Africa’s longer history and Apartheid were acknowledged in the Final Report, the commission operated with the mandate to investigate crimes beyond the already wide latitude of what was legal under Apartheid. Despite the substantial achievements in terms of reconciliatory and restorative justice for the majority of South Africans, the process failed to reaffirm the humanity and dignity of the San.

The reason for this was the scope of the commission, in that it comprehensively failed to consider colonialism and the colonial period. For the San and other Indigenous groups (Khoi, Griqua, Korana, and Nama) this constituted a re-erasure and redispossession, as the initial and earlier dehumanization, fragmentation, and genocides occurred prior to this under British colonialism. Thus, the commission “relegated… [this] … to the mists of time, and thus beyond the reach of justice” (Burnett et al. 2022, 4). In setting up the commission, the extinction discourse prevailed. Erased in both the past and the future, the San were dehumanized again and realienated from their birthright as an Indigenous community. Further, because the commission’s brief was that which went beyond the legality of Apartheid, the San remained “coloured” nontitled farm laborers, a noncategory, nonpeople, deprived of community—social, cultural, and emotional.

LAND: REPARATIVE AND RESTORATIVE JUSTICE IN THE SOUTHERN KALAHARI

The first multiracial and democratic South African government ushered in a substantial series of policy measures from 1994 onward to address deep structural harms and restore rights across South Africa. One of the most significant was the new land policy framework that had three central components: redistribution, tenure, and restitution. Redistribution offered the possibility to farm to those who had been racially excluded, tenure provided security to those who lived and worked on farms they did not own, and restitution returned land to those from whom it had been removed. This worked with a cutoff date for land stolen from the 1913 Land Act onward, which removed 83% of land from native Africans.

The ≠ Khomani San initiated a land claim under this policy and were awarded one of the largest land claims in the post-Apartheid era. In 1999, this transferred the ownership of six farms—Erin, Andriesvale, Scotty’s Fort, Miershooppan, Witdrai, and Uitkoms—comprising a total of 38,000 hectares to the community. Subsequently, two additional farms, Sonderwater and Rolletjies, were allocated to the community alongside ownership of 25,000 hectares of land within the Kgalagadi Transfrontier Park, with conditions around use and access and restrictions on permanent residence (Chennels 2010). While most Indigenous people across the Kalahari had experienced dispossession prior to the 1913 cutoff date for land claims, during the colonial period, their claim rested on the forced removal of a small group of #Khomani San in the 1970s when the park expanded. This community of roughly 100 individuals initiated the claim, and the community grew to more than 1,500 people as the claim progressed through a process of biographical mapping.

The claim restored and guaranteed the collective property rights of the ≠ Khomani San, partially repairing the structural harm caused by decades of dispossession and ensured that these rights were, in perpetuity, beyond the power of the state. It guaranteed full ownership of land, beyond access and usage of land rights associated with nomadic peoples, with conditions around usage in the park. In granting the claim, the state acknowledged the existence of the community of the ≠ Khomani San, hitherto claimed to be extinct. In the awarding ceremony, Derek Hanekom, minister for agriculture and land affairs, stated, “We are here today celebrating more than just the settlement of a land claim: we are here celebrating the re-birth of the ≠ Khomani nation” (Brormann 1999, 43). Thus, the claim tied land to rights, and rights to people, making the dispossession of the #Khomani San and the structural impact of this fully visible. The return of land also provides the opportunity for further “transformative reparations … to bridge the gap between massive human rights violations and the structural marginalization of social groups.” (Peña-Huertas et al. 2021, 233), providing for other socioeconomic rights such as access to housing and electricity in the future under the broader transformational policy framework.

In compensating for deep structural harms, the awarding of land also enabled the community to engage in meaningfully addressing harms, restoring human relationships, and building a collective identity. The community allocated different farms to different activities, with Scotty’s Fort, Miershooppan, and Uitkoms dedicated to small-stock farming. Andriesvale emerged as a peri-urban settlement strategically located near major crossroads, shops, and amenities with the highest population density. Erin and Witdraai were designated for cultural practices. Notably, these two farms house several key development initiatives, such as a rustic bush camp, a tented camp, the Living Museum, and a medicinal plant project. They arrange walking tours across the farms, and opportunities to hunt and to access 4 × 4 routes and walking trails. The additional farms of Sonderwater and Rolletjies are used for cultural practices, such as gathering and hunting, and due to their proximity to the park, they offer potential for bush camps and ecotourism ventures. These two farms are more remote, so they attract less settlement and have an overall limited use. Within the Kgalagadi Transfrontier Park, the community has relative autonomy to engage in gathering and ecotourism activities. This includes walking tours, 4 × 4 routes, and the creation of Xaus Lodge, a luxury lodge co-owned with the Mier community, one of the historic “coloured” communities who shared recent dispossession, and is operated on their behalf by a private company, Transfrontier Park Destinations, with profits shared between the three partners in a public–private partnership and capacity-building scheme. In addition, the community arranges language training in N|u, the original language, at a preschool by elders who still know the language. Resources are owned and managed collectively.

Despite many of these socioeconomic initiatives as community-driven attempts to transform decades of socioeconomic harms, the most significant contribution of the land claim is in restorative and reconciliatory justice. The Kalahari is both literally and figuratively on the edge of the world economic system (Francis, Francis, and Akinola 2016), so the expectation that small-scale development projects will transform these harms without a bigger transformation of the region in its integration into the world economic system is, like other comparative regions, notional. The recognition of the San as a people, and the restoration of rights and birthright through land, has enabled the reversal of other harms. These include embedding acknowledgment and autonomy, reversing dehumanization and infantilization, allowing ≠ Khomani San to reclaim the narrative about themselves and their history and a broader emancipation. As a member of the community argued, “We have really been able to rip some benefits from our land and to be able to speak out about how we want things to run on our land has been truly freeing for our people” (Pienaar 2023). The medicinal plants project, for example, an initiative in partnership with the South African government, recognized that San people’s use of wild plants was based on medicinal and scientific knowledge. Language teaching of N|u acknowledges the importance of language preservation as connection to identity and belonging.

Restoring rights has enabled the community to rebuild itself out of intense fragmentation. This is particularly acute in the Southern Kalahari because many contemporary San lived directly through Apartheid, but not the colonial trauma that preceded it decades before. As such, they are the guardians of the past memories and traumas of previous generations of San, experiencing both the historical burdens and the impact of the harms of previous generations too. Rebuilding community through processes of managing the land, remaking cultural heritage, recovering stories about the past, and social remembering of historic collective ties rebuilds social and emotional community bonds, allowing the ≠ Khomani San to reclaim dignity and humanity. This broadens the national narrative created by the Truth and Reconciliation Commission, of which the San were not a part. The ≠ Khomani San are now a dignified people, with a collective past, who survived the worst forms of abuse, to reclaim the truth about themselves and contemporary belonging in the Southern Kalahari.

CONCLUSION

The ≠ Khomani San suffered genocide, dehumanization, and fragmentation during the periods of British colonialism, segregation, and Apartheid. Despite its many successes, the historic Truth and Reconciliation Commission in South Africa did not reaffirm the dignity and personhood of San peoples. Instead, the very specific mandate of the commission meant that the San (and other Indigenous groups) were excluded as a noncategory, nonpeople, bereft of social, cultural, and emotional community, in keeping with an extinction discourse and because of the failure to address colonialism. Through the commission, the San were cast aside in the realization of reconciliatory justice.

However, the land returned to the ≠ Khomani San—through processes of reparative and restorative justice—enabled the repair of harm, by providing the means by which the ≠ Khomani San were guaranteed collective rights, restoring collective identity and restoring human relationships. The land is both structurally and symbolically important. The land offers socioeconomic rights and tangible benefits to accrue to the ≠ Khomani San, connects them to a historic past, while signifying their status as a contemporary people of South Africa. It enables the remaking of cultural heritage in the present and the rebuilding of social and emotional ties that were the subject of destruction.

The land has enabled reversal of trauma that the Truth Commission could not. Reparative justice in the forms of socioeconomic reparations is insufficient alone to address harms in the context of an unequal world economic system. However, if a culture of reconciliation has already been created within a space, then restorative justice - restoring rights, and a process of reparation, can lead to more reconciliatory justice. For the ≠ Khomani San, the land claim brought the trauma of contemporary San into focus, allowing for a broadening of the national narrative that the Truth and Reconciliation Commission could not capture. The ≠ Khomani San land claim as an act of reparative justice has enabled restorative justice and broader reconciliatory justice of San within South African society.

DISCLOSURE STATEMENT

No potential conflict of interest was reported by the authors.

Additional information

Notes on contributors

Suzanne Francis

Suzanne Francis is an Associate Professor in Conflict Transformation and Peace Studies. Her research is fieldwork- and archival-based in conflict zones across Africa, and includes violence, conflict and peace, the colonial international order and decolonizing international relations; conflict transformation, restitution and reconciliation; African political economy; postcolonial theory; and marginalized peoples and indigeneity. E-mail: [email protected]

Michael Francis

Michael Francis is a Senior Lecturer at the University of Chester, teaching Global Affairs, Politics, and International Relations. His research explores Kalahari peoples, global political economy, Indigenous peoples, international development, inequalities, societal responses, and conflict dynamics, bridging academia with real-world impact. Beyond academia, he focuses on involuntary resettlement, Indigenous peoples planning, and impact assessments. E-mail: [email protected]