POLICY FRAMEWORK FOR URGENT INTERIM REPARATION MEASURES
A. Preamble
B. Context: UIR and the Act
C. Policy Framework
D. Principles
E. Operational Issues
F. Outstanding issues for TRC discussion
A. PREAMBLE
The Reparation and Rehabilitation Policy guidelines promotes a development centred
approach. It is firmly grounded on the quest for reparations which will be sustainable.
The proposal is for reparations which will benefit not only individual survivors of human
rights violations as defined by the National Reconciliation Act of 1995 but all the
communities whose dignity was destroyed through a systematic machinery of human rights
violations and state neglect.
Recalling the Interim Constitution and specifically where it refers to the need
for understanding and not vengeance, the need for reparation and not retaliation and the
need for ubuntu and not victimisation,
Understanding the negotiated settlement and context which led to the Interim
Constitution stating that, in order to advance reconciliation and reconstruction, amnesty
will be granted in respect of acts, omissions and offences associated with political
objectives committed in the course of the conflicts of the past,
Acknowledging the pain, anguish and loss suffered by victims of human rights
violations in the past,
Maintaining that an important element of justice is restoration, restitution and
reparation, whether there is punishment or not and that victims of human rights violations
have an inalienable right to fair and adequate reparation and rehabilitation, especially
in a context where provision is made for amnesty,
Realising the distinct need for urgent interim reparation in cases where the
victims are unable to wait for the final outcome and recommendation of the TRC.
Confirming that the measures of urgent interim nature as recommended and
subsequently implemented, will not exclude victims to be considered as part of the final
reparation recommendations made to the President at the end of the TRC, and similarly will
consideration under one category of UIR policy does not preclude a victim from being
considered under other categories,
Believing that the need to grant reparation to victims is one of urgency and
that it will contribute to the building of a new and just moral order,
The Reparation and Rehabilitation Committee propose that the measures,
principles as outlined in the UIR Policy framework form the first steps to making adequate
and fair reparation and rehabilitation to those victims as described by the Act and
towards furthering reconciliation and national unity.
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B. CONTEXT - THE ACT AND URGENT INTERIM REPARATION
The Promotion of National Unity and Reconciliation Act (no. 34 of 1995) allows the TRC
to make recommendations to the President in so far as measures of Urgent Interim
Reparation (UIR) are concerned. These should be recommendations as to appropriate measures
of reparations to victims of gross human rights violations. The recommendations can only
be made for people who have been referred to the Reparation and Rehabilitation Committee
(RRC), by the Committees for Human Rights Violation and Amnesty. Ultimately the President
will consider these recommendations with Parliament and decide in which way to implement
them.
The policy recommendations, as outlined in this framework, will provide the guidelines
according to which recommendations for specific victims will be considered.
Key considerations in the Act
1. Appropriate measures
"the Committee may make recommendations (to the State President)
which may include urgent interim measures ..., as to appropriate measures of
reparation to victims;" Section 25(b)(1)
The following measures should:
- Begin to restore a sense of dignity to victims of gross human rights violations.
- Relate to the loss suffered by victims.
- Relate to the socio-economic context of victims.
- Relate to the cultural context of victims.
- Relate to the capacity of the government, attendant ministries and civil society to
implement policy recommendations.
These measures demand:
- The individualised (idiographic) details of each person found to be a victim.
- The details should be a true reflection of a victim’s situation.
- The joint committee’s approval and support of the said measures (see point 3, page
5).
2. Access to UIR
"Applications for Reparation. Any person referred to the
(RRC) Committee in terms of section 25(a)(I) may apply to the Committee for reparation
..." Section 26 (1)
Only those victims referred by the Human Rights Violations Committee and/or the Amnesty
Committee have access to UIR. Direct applications or referrals from other sources may not
be considered.
The Commission will make decisions and recommendations as to which victims qualify for
UIR, based on a standardised assessment.
3. Consideration and implementation
"Parliament to consider (policy) recommendations with regard
to reparation of victims. The joint committee may also advise the President in respect
of measures that should be taken to grant urgent interim reparation to victims."
Section 27 (4) Section 4( f)(ii)
Policy recommendations will be considered by a joint committee appointed by parliament
for the purposes of considering matters referred to it in terms of the Act. Decisions made
will then have to be approved by Parliament, before being implemented by the President.
Definition of terms
1. Reparation
According to the Act reparations can include any form of
- compensation,
- ex gratia payment,
- restitution,
- rehabilitation or
- recognition.
2. Urgency
In terms of the mechanisms of the Commission and its mandate to investigate individual
cases of gross human rights violations, establishing the identities of victims of gross
human rights violations [victim findings, referring victims to the RRC Committee, making
recommendations and implementation] it is unrealistic to imagine that provisions of
reparation will materialise and be implemented in less than two years.
The legislation has taken cognisance of the fact that in the interim some victims
might, as a result of the violation, remain to live in a severe state of suffering. This
two(2) year period could be fatal, or irreversibly damaging to individual victims. UIR
concerns these type of victims who have accessed the Commission.
The seriousness of the suffering is therefore the only justifiable criterion for which
to grant UIR. Thus Urgent Interim for the Commission, denotes:
- The seriousness of an individual victim’s suffering.
- The need to shorten the time to implement service provision.
3. Victims
Victims include:
a) Persons who suffered harm in the form of...
- physical injury
- mental injury
- emotional suffering
- pecuniary loss
- substantial impairment of human rights
...as a result of a gross violation of human rights; or as a result of an act
associated with a political objective for which amnesty has been granted; or as a result
of such person intervening to assist persons contemplated (above) who were in distress, or
to prevent victimisation of such person.
b) Such relatives or dependants of victims as may be prescribed.
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C. POLICY FRAMEWORK
The proposed policy framework focuses on five (5) categories of measures according to
which UIR should be granted to victims as defined in the Promotion of National Unity and
Reconciliation Act (No. 34 of 1995).
The 5 categories deal with very seriously affected victim's rights to urgent
interventions with regard to
- emotional suffering and pain,
- medical care and assistance,
- material or financial need and limitations,
- access to and continuation of education and
- the duty and obligation to remember (symbolic measures and interventions)
The policy framework provides the measures that should be regulated in order to deal
effectively with each category of urgent interventions. In each category the criteria for
victims who will be considered for the measures, as well as the envisaged methods of
provision, need to be considered.
All the envisaged methods of provision or implementation assumes the establishment of
UIR Desk at a national level devolving to provincial and local levels. A recommendation as
far as the administration / implementation body is concerned, follow after the discussion
of the different categories of UIR measures. [see E. Operational Issues]
EMOTIONAL INTERVENTIONS
|
Measures |
Criteria |
Provision |
- Emotional support to be facilitated through a support structure which is consistent with
the victims preference and is considered by the RRC Committee to be an appropriate,
accountable, accessible and good quality service.
|
- Those victims whose emotional quality of life has been and continues to be, severely
affected as a result of the violation.
[Severity is understood as a state of debilitation of emotional and social functioning
such that the individuals quality of life has been affected by the violation, and
realistically will remain unchanged in the future, unless some form of emotional
intervention is undertaken.]
- Those victims who have been orphaned as a direct result of the violation and have
inadequate material support to meet their immediate emotional needs.
|
- Once the individual has been confirmed to be a victim according to the parameters of the
Act, an initial assessment follows through the use of the UIR Form.
- The UIR Desk will be responsible for the implementation and arrangement of full
assessments of the individual’s present emotional state by mental health workers.
Based on the recommendations of the assessment, referral to services which are considered
appropriate, accessible and of high quality will follow.
- A network audit of existing credible support services will be forwarded to the UIR Desk
by the RRCC.
- The competence of those supplying services will be assessed by the RRC Committee,
bearing in mind that if a need is considered to be urgent the best quality services is
needed. If a need is urgent it also implies that the traditional support structures (eg
family, etc.) available to the individual have not prevented the need from becoming
critical, thus an alternative, additional, specialised form of emotional intervention is
necessary. Nevertheless, at all times, these formal services will be complemented by the
informal support structures (e.g. family, caregivers and community support services like
priests) available to the individual at the time.
- Relevant support services include both the services provided by individuals and
organisations on a voluntary basis, as well as formal and existing private and state
provided services.
- Provision should also be made for providing the transport costs of volunteers to be paid
when providing services to those needing urgent intervention. [The first services to be
utilised will be services offered by individuals and organisations who are willing to
provide their services free of charge to the victims.]
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MATERIAL INTERVENTIONS
|
Measures |
Criteria |
Provision |
- The granting of financial aid in the form of a lump-sum or pension payment and/or
ensuring that the lost or diminished pension rights are re-established and/or payment or
facilitation to ensure the clearing of outstanding debts linked to the violation.
|
- Those victims, both young and old, who are terminally ill and/or frail and will not
survive beyond the life of the TRC.
- Those victims who have been orphaned as a result of the violation and have inadequate
material support.
|
- Once the individual has been confirmed to be a victim according to the parameters of the
Act, an initial assessment follows through the use of the UIR Form.
- Provision will be made through the UIR Desk for the victim to be assessed by two
independent medical practitioners, or by a medical practitioner designated by state who
will either certify that the individual is terminally ill or will probably not survive the
duration of the TRC.
- Those who qualify for the granting of financial aid will be eligible for a pension or a
lump-sum payment. The regional UIR Desks facilitate such payments after assessing the
requests.
- The RRC Committee will recommend to the UIR Desk that the structure of payments be
standardised.
- The UIR desk will take appropriate action to re-establish lost or diminished pension
rights.
- The UIR Desk will consider the payment of debts or clearing of outstanding payments
where appropriate. Cases where the individual had sought justice in the past and the
present costs have significant impact on the material life of the individual and their
dependants, will be prioritised.
- Those who are categorised as orphans due to violation and qualify for financial aid will
receive special maintenance grants. A standardised structure for payments will be
developed in conjunction with relevant ministries. The programme will particularly serve
those orphans under the age of 18 but could be extended up to the age of 21 for those
still studying.
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- The facilitation of emergency shelter
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- Those victims, and their dependants, who as a result of the violation have no fixed home
or shelter.
- Those victims who have been orphaned as a result of the violation and are in
particularly dire living conditions.
|
- Once the individual has been confirmed to be a victim according to the parameters of the
Act, an initial assessment follows through the use of the UIR Form.
- Those who are in need of emergency shelter will be placed in short term shelter, or
renovations can be facilitated in the homes if the needs are urgent. Another option would
be to facilitate placing of individuals as urgent priority on the various government
housing programmes. The programme will be administered by the UIR Desk.
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MEDICAL INTERVENTIONS
|
Measures |
Criteria |
Provision |
- Medical support to be facilitated through a medical support structure which is
consistent with the victim’s preference and is considered by the RRC Committee to be
an appropriate, accountable, accessible and good quality service.
- Medical interventions will be provided for debilitating conditions and provision of
medical equipment.
|
- Those victims, both young and old, who are terminally ill and/or frail and will not
survive beyond the live of the TRC.
- Those victims, who are physically disabled as a result of the violation
- Those victims suffering from a debilitating physical condition such that the independent
social functioning is markedly impaired and/or victims who cannot function independently
and/victims who are a significant burden on caregivers and their quality of life has been
severely affected by the violation. This situation and/or condition will realistically
remain unchanged in the future unless some form of medical intervention is undertaken.
- Those victims who have been orphaned as a result of a violation and have inadequate
material support to meet their immediate needs.
|
- Once the individual has been confirmed to be a victim according to the parameters of the
Act, an initial assessment follows through the use of the UIR Form.
- Provision will be made through the UIR Desk for the victim to be assessed by two
independent medical practitioners or by a designated state medical practitioner who will
certify that the individual is terminally ill, disabled, suffering from a debilitating
condition or will probably not survive the duration of the TRC. The practitioners will
make recommendations for medical interventions and any other measures to be undertaken.
- A network of medical services will be established through the UIR Desk.
- The competence of those supplying services will be assessed by the RRC Committee,
bearing in mind that if a need is considered to be urgent the best quality services is
needed. Medical support will be appropriate, accessible and of good quality.
- Medical services include both the services provided by individuals and organisations on
a voluntary basis, as well as formal and existing private and state provided services.
- Provision will also be made for the reimbursement of transport costs of volunteers
incurred providing services to those needing urgent intervention. [The first services
to be utilised will be services offered by individuals and organisations who are willing
to provide their services free of charge to the victims.]
- Limited payment according to a standardised structure will be made for medical
interventions which will improve or cure debilitating conditions, for prosthetic
procedures and instruments which will improve the life of the victim significantly.
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SYMBOLIC INTERVENTIONS
|
Measures |
Criteria |
Provision |
- Measures to expedite existing matters of urgency.
[For example, the issuing of death certificates, clearing of victims names
especially those with criminal records or considered to be informants, visiting the
places where violations took place or sites of burial, writing letters to
government departments and lawyers and taking appropriate action to expedite cases and
payments, declare a person dead and settle legal procedures and problems.]
- Exhumations and reburials. (individual/collective)
- Tombstones and shrines. (individual/collective)
- Facilitation of feedback on cases under investigation.
- Facilitation of public acknowledgements and apologies.
- Victim-offender mediation
|
- Those victims, both young and old, who are terminally ill and/or frail and will not
survive beyond the life of the TRC.
|
- Once the individual has been confirmed to be a victim according to the parameters of the
Act, an initial assessment follows through the use of the UIR Form.
- The victim will have to be assessed by either two independent medical practitioners or
by a designated state medical practitioner, who will certify that the individual is
terminally ill or will probably not survive the duration of the TRC.
- The UIR Desk will arrange for exhumations, reburials and the purchase of tombstones as
recommended by the RRC Committee. Prescribed payment will be made available for such
procedures and actions.
- Public acknowledgements and apologies will be facilitated through the RRC Committees in
consultation with the HRV Committees.
- Victim-offender mediation will be co-ordinated at a regional level through an audit of
relevant credible support services as provided by the regional RRC Committee.
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EDUCATIONAL INTERVENTIONS
|
Measures |
Criteria |
Provision |
- Educational support to be facilitated through the granting of financial assistance or
bursaries for the completion of studies at senior secondary or tertiary level.
- Facilitation to access and utilise free primary and secondary education.
- Facilitate access to special education, particularly for those disabled either
physically mentally as a result of the violation.
|
- Those victims, and dependants of victims, whose senior-secondary or tertiary studies
have been interrupted as a result of the violation and for whom future prospects for
education will be jeopardised unless urgent intervention, (financial or otherwise), is
undertaken to ensure they continue studying.
- Children who are victims or dependants of victims, who qualify for free (primary and
secondary) education but are not aware or failing to take advantage of such education.
- Those victims who have been orphaned as a result of the violation and have inadequate
material support or social structure to ensure that they are receiving adequate education.
- Those victims who have been physically or mentally disabled as a result of the violation
and require specialised education.
|
- Once the individual has been confirmed to be a victim according to the parameters of the
Act, an initial assessment follows through the use of the UIR Form.
- The UIR Desk will facilitate educational assistance through the writing of letters and
liaison with educational institutions (e.g. arrange for a child to receive specific
education through a government school or welfare grant) to ensure appropriate referral
occurs for those who qualify for such education. In most instances that free or funded
educational support should be obtainable.
- The UIR Desk will facilitate access to existing bursary and financial aid schemes for
those victims qualifying for senior secondary or tertiary education as specified in the
first measure. If this fails, payment for studies in the form of bridging funds will be
considered according to a standardised and limited rate. Payment will be dependant on the
student’s performance.
- For orphans requiring assistance, the UIR Desk will ensure that the individual receives
education through available bursaries, state-aid or supplement studies through the
granting of funds for studying according to a limited and standardised rate.
- Facilitate urgent access to special schools.
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D. PRINCIPLES
Policy makers shall prepare a programme of reparations, taking into account the
following principles:
i) Redress, which is the right to fair and adequate compensation.
ii) Restitution, which is the right to the re-establishment, as far as possible,
of the situation that existed for the beneficiary prior to the violation.
iii) Rehabilitation, which is the right to the provision of medical and
psychological care and the fulfilment of significant personal and community needs.
iv) Restoration of dignity, which could include symbolic forms of reparation;
and
v) Reassurance of non-repetition, which is the creation of legislative
and administrative measures, which contribute to the maintenance of a stable society and
the prevention of the re-occurence of human rights violations.
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E. OPERATIONAL ISSUES
Basic premises
UIR Policy Framework
- The UIR policy framework constitutes the different options to be considered when making
recommendations to the UIR Desk. The framework will be regulated through normal legal and
parliamentary processes, after a public information and consultative process.
Who will implement the individual recommendations?
- Recommendations for specific measures of UIR will be implemented by the UIR Desk
(constituted outside existing TRC structures). The suggestion is for this to be
constituted in office of the President.
- Implementation can include an individual assessment interview (see measures)
Who will be considered?
- A person will only be considered for UIR once the person has been formally found to be a
victim of gross human rights violation as defined by the Promotion of National Unity and
Reconciliation Act and referred to the RRC committee by either Amnesty or HRV
committee.
How will they be identified?
- A possible UIR candidate will be identified through the Section 4 Hook Questions of the
Human Rights Violation Committee Protocol. The information department and HRV Committee
will be asked to expedite the finding process by the RRC.
- In the case of Amnesty referrals (where finding has already been made) an RRC form will
be used.
- All people to be considered for UIR measures will fill out a UIR Information form for a
second assessment.
How will recommendations be made?
- Regional RRC’s will make preliminary recommendations which will be ratified by the
national RR committee and then forwarded to the TRC for referral to the administration
body/ UIR Desk.
Monitoring the implementation process?
- The TRC will monitor the implementation of the UIR measures through its representatives
in the administration body. This structure can form the basis of a long term monitoring
body of the final recommendations as submitted to the President at the end of the life of
the Commission.
How will pre-September '96 statements be dealt with?
- RRC staff will work through all statements submitted to the TRC in order to identify the
deponents to receive UIR Information forms.
The answers to the "expectation" question in the first protocol and the
"outcome" and "expectation" questions in the second protocol, as well
as the witness audits drafted after a public HRV hearings, will be used to make a decision
as to who will receive a UIR Information form.
This information is to be drawn from the database and considered on a regional level by
the RRC co-ordinators as well as the RRC commissioners and committee members. The
Information Systems Manager is in the process of constructing an RRC information page
which will collate all the RRC related information from the different versions of the
protocol. The names of those to receive an UIR information form will be forwarded to the
RRC administrator and added to the national UIR victim list. The normal UIR form
forwarding procedures can be followed. Working through the backlog should be completed by
the end of 1996.
RRC Information Instruments (UIR)
Information gathered on the HRV/TRC protocol as entered on the TRC database will be
used as the basis for information for all victims referred to the RRC Committee. This will
standardise and centralise all information gathered by TRC for each victim and will
facilitate the preparation of the final report. The RRC committee will use the following
two information instruments to gather the necessary information from a victim, in order to
make an informed recommendation based on the UIR policy framework.
Hook questions in the HRV/TRC protocol (Section 4)
The aim of these questions are merely to identify deponents, if they are found to be
victims, who will be considered for reparation recommendations in terms of the Urgent
Interim Relief measures.
UIR Form
This form will confirm whether a victim qualifies for UIR. It will also assess and
establish the specific needs of the victim in this regard. The form has been developed in
accordance with the assessment questions for the different categories of UIR measures. The
form must be oathed by victim before returning to the TRC.
Envisaged RRC (UIR) Information Flow
1. The HRV/TRC protocols will be registered and will follow the normal processing of
the current information. The data processors will enter the answer to section 4 question
free flow on the data base.
2. The RRC administrator will on a weekly basis call up all the new processed statements
from the database, assess and identify the deponents that qualify to receive a UIR
Information form.
3. The names of all these deponents and their case numbers will be forwarded to the
Regional Information Managers who will prioritise the processing and verifying of these
statements.
4. If a positive victim finding in step 7 (Regional pre findings meeting) is made the
Information manager will forward the name and contact details of the deponent to the RRC
Administrator.
5. The RRC Administrator will add the name to the victim(UIR) list.
6. The RRC Administrator will then forward a UIR Information form to the victim.
7. The regional RRC committee should create capacity within the committee to deal with the
UIR forms and subsequent recommendations manually. This will entail staff reading through
each form and in terms of the promulgated UIR regulations making a recommendation.
[culminating in a Regional RRC UIR meeting making recommendations to be forwarded to the
national RRC meeting for ratification.]
The recommendation, with a copy of the UIR form will then be forwarded to the TRC for
acceptance and transferred the UIR Administration Body.
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F. OUTSTANDING ISSUES FOR TRC DISCUSSION
Severe ill treatment and Political objective
In order to make adequate and comprehensive recommendations for both UIR and long-term
measures of reparation and rehabilitation, the violations suffered and the outcomes of
those violations must be taken into consideration. In this regard the RRC committee is
dependant on a consistent interpretation of the concepts of severe ill treatment and the
political objective provision from the HRC and Amnesty Committees. The RRC policy
formulation and recommendation processes will be served if these definitions can be
finalised as soon as possible.
Redress and Fair compensation
The RRC committee made a principle decision to include the possibility of pension
and/or lump-sum payments to victims of gross human right violations as a measure of
reparation. This decision is based on the internationally accepted principle of a victim's
right to compensation and reparation. This debate needs to be facilitated at TRC level and
brought to conclusion. It would be naïve to include this as a possible measure, when
pursuing processes of public consultation, if there is not an acceptance that this will
form part of final policy frameworks as recommended by the TRC. (cf attached example of
graphical representation of compensation figures).
Victim definition
The description according to the Act includes relatives and dependants (Section 1 (xix)
c). The current TRC/HRV protocol does not solicit adequate information in this regard.
Thus the people who are found to be victims may differ from those who directly suffered
violations and deponents who testified as witnesses. A common understanding on who will be
considered victims, and relatives or dependants is urgent. As all victims have to be
referred to the RRC committee via the Amnesty committee or the HRV committee, this
definition should already impact on the decisions taken there in terms of findings.
Exiting the TRC
The processes that deal with people found to be victims of gross human rights
violations according to the Act, and qualify for UIR are being established. However,
attention should be given to those people who exit the processes of the TRC not having
been found victims. This in itself if not sensitively handled can constitute another
traumatic experience.
This issue needs to be considered and formalised at TRCl level. A referral system to
organisations or agencies who can provide alternative relevant services needs to be
established.
UIR and long term RR policy
UIR Policy Framework
14 Sept 1996