On the 29th of June 2024 I will be at the National Arts Festival in Makhanda, part of a panel with retired Constitutional Court Judge Albie Sachs, legal reporter and editor Franny Rabkin, and arts organiser and practitioner Caroline Umulinga Karemera. The purpose of the panel is to discuss the links between art, law, and justice, and “what is to be done”. The panel is framed against the theme of “solidarity”, and is moderated by veteran journalist, Niren Tolsi.
Below I share part of my draft notes and preliminary thoughts for the panel, prepared for Albie, Franny, and Caroline:
Solidarity that ends oppression and injustice, and hunger, poverty and inequality - instead of just alleviating them - requires that we establish a framework for disentangling truth from facts, and law from justice, as well as messaging predicated on the understanding that truth and justice are indivisible and inevitable. This is a framework, I believe, that, today, has salience in Palestine, in Haiti, in the Congo, and elsewhere were harm, oppression, and injustice persist at scale. The TRC’s definition of truth, and its omission of justice, ought to be instructive.
Truth does not mean facts.
Facts are witnessable and establish a record. An example of a fact is that humans live and die (i.e., we all die sometime). Facts are witnessable and can be recorded via CCTV footage and birth and death certificates. That Chris Hani died is a fact. The law deals with facts, and so it names Clive John Derby-Lewis as the murderer of Chris Hani. For the law, as for the TRC, the crime scene is a fact-providing, fact-finding space about how it happened, by whose hand it happened, and from what motives. All one needs to escape the facts of law is a good alibi. It is a fact that a person cannot be in two places at once.
Truth, however, is different. It does not admit alibis. There is no amnesty from the truth. Fundamentally, truth degrades if it is litigated, witnessed, or recorded. So it does not matter if tens of millions of documents were shredded and incinerated by the apartheid regime. The truth stands by itself. It is its own document. Indeed, trying to document and prove truth degrades it into a mere fact. An example of truth is as follows: the fact that humans live and die (i.e., we all die sometime) does not mean that humans live to die. This is the powerful sense in which the fact that Chris Hani died is a great injustice. That is, facts themselves do not mean to be true. Facts are not extensions of the truth. Truth just is. Truth, rather than commissioned victim hearings, is what turns Hani’s death from a mass of facts to a great injustice. The TRC seems therefore to have been an FRC rather – a Facts and Reconciliation Commission.
You cannot commission the truth.
If a fact is that I am hungry, a truth is that hunger is harmful. Facts can be ignored. Indeed, life goes on precisely due to ignored facts. Life went on after Chris Hani was murdered. Life went on after the Lonmin massacres. The Rugby World Cup and the Cricket World Cup went on alongside the massacres in Palestine and in the DRC. There is a T20 cricket world cup going on as I write this. The South African election in 1994 went ahead as the genocide in Rwanda went on. Massacres continue in Rafah despite the ICJ and ICC rulings. There will never be a declaration of a national state of disaster to address inequality in South Africa, and so on. So, life goes on.
The point is that, facts, like laws, can be bypassed. This is the sense , as I have shown in my book, Apartheid Studies: A Manifesto, in which it is absurd to define apartheid as “legalised segregation”. Such legal positivism misses how life exceeds law. Life cannot bypass truth. They are indivisible. It was correct, for instance, that the TRC name itself after the truth. However, it often happens that truth is sacrificed at the altar of facts.
Ignoring the fact that I am hungry does not confer amnesty from hunger itself. That is, I can ignore that I am hungry but I cannot ignore that hunger is harmful. Injustice cannot be ignored. Facts about crimes against humanity can be swept under the carpet, but justice and truth operate differently. We need a framework that recognises this. Facts can wait. Justice and truth cannot. Justice and truth are indivisible and inevitable.
While life goes on due to ignored facts, ignoring truth causes a crisis. Ignoring justice is the source of national and international crises. So, to my mind, while facts are that which is the case, truth is that which is. Truth saves facts from irrelevance. Truth returns meaning to facts.
Solidarity must, therefore, be based on truth and unmissable justice.
Art has a critical role to play in this messaging.