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Legal Truth and Discourses of Violence in Post-apartheid Commissions of Inquiry: The TRC and Marikana Commission

This thesis offers an analysis of the official discourse of two post-apartheid commissions of inquiry investigating state violence – the South African Truth and Reconciliation Commission (TRC) and Marikana Commission of Inquiry. I trace both continuities and shifts within the apartheid and post-apartheid period in the way questions of ‘truth’ and ‘justice’ have been approached in relation to past (political) violence. Moreover, I point to Marikana as exemplifying a continued problem in the post-apartheid dispensation, which has been to keep the major facets of economic organisation largely intact, reproducing structural violence and social inequity by workers in the South African mining sector. Following Adam Ashforth, my method involves an analysis of the official discourse produced in and by a commission of inquiry; however, I develop this approach to focus on the official discourse on violence in both the TRC and Marikana Commission of Inquiry. I assess various scholarly analyses and characterisations to discern their functions in terms of the following analytical schema: fact-finding, truth seeking, their discursive or narrative role and ideological function. Through an in depth analysis of what Adam Sitze calls ‘tumult commissions’, official commissions established throughout British colonialism to investigate excesses in violence by state security in quelling a major uprising in the mining sector, I trace how this institutional form has continued through the South African transition in the TRC, and into the democratic era. I argue that on a basic level these commissions of inquiry are concerned with the law; that they are instruments used in the attempt to bring society more in line with the law when other institutions like the courts or police have been stretched to capacity or when their legitimacy has been severely undermined. I proceed to focus on the TRC and Marikana Commission’s concern with the law and how the legal conceptualisations of ‘violence’ and ‘violation’ constrain the findings published in the final Report, and subsequently the possibility for restitution or justice for victims of state violence. This attests to the difficulties of both truth-telling and enacting justice in a society that remains characterised by past and continued structural violence. I find that post-apartheid commissions of inquiry have used increasingly legal approaches to address direct forms of violence, violation and injury but that they bump up against limits internal to international law itself when violence is structural and domination takes a more abstract form. As such, the production of past and present material inequalities could be glimpsed but not fully digested by the TRC and Marikana Commission’s legal orientation.
Nonetheless, an analysis of these Commissions’ mandated deliberative and inclusive process facilitates challenges to official discourse on violence from civil society groups to include focus on structural violations. I show how claims to truth and justice by the public have allowed post-apartheid commissions of inquiry to be moved in various directions of their own volition, which has allowed for structures of power and the discourses that sustain them to be challenged in meaningful ways. It still stands, however, that the

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Dr Claire Lester