INTRODUCTION

On 23 July 1974 in a meeting between the head of the state at the time, General Phaedon Gizikis, and the country's military leadership (Grigorios Bonanos, Chief of the National Defence General Staff, Andreas Galatsanos, chief of the Army General Staff, Petros Arapakis, chief of the Navy General Staff and Alexandros Papanikolaou, chief of Greek Airforce), it was decided to transfer power to the country's political leadership. The dictator, Dimitrios Ioannidis, was invited to the meeting and was forced to accept the decisions taken by the other members of the meeting. The decision marked the end of the seven year and three month dictatorship in Greece (21 April 1967 – 23/24 July 1974) and the country's transition to the period of democratisation.

An hour later Phaedon Gizikis invited Panagiotis Kanellopoulos, Georgios Mavros, Evangelos Averof, Georgios Mavros, Evangelos Averof, Georgios Novas, Stefanos Stefanopoulos, Spyros Markezinis, Panagiotis Garoufalias and Xenofontas Zolotas, all prominent right-wing and centrist politicians of the pre-dictatorship period, in a meeting to discuss the procedure for the transition. They decided to proceed with the formation of a government of “National Unity” under the leadership of the ex-Prime Minister Konstantinos Karamanlis, who after his disagreement over constitutional reforms with King Paul in 1963, leading to his resignation as Prime Minister, left the country and was living in Paris. The decision was made known to Karamanlis who accepted the offer and returned to Athens in the early hours of 24 July by an airplane which the President of the France, Valéry Giscard d'Estaing, used for state visits. A government of “National Unity” was sworn into office in the early hours of 24 July 1974 under the premiership of Konstantinos Karamanlis with the mandate to prepare the country for a smooth transition to a democratic regime, organise general elections and take the necessary diplomatic steps for managing the crisis in Cyprus after the Turkish invasion of the island on 20 July 1974.

The invasion, which resulted after the junta regime's interference with Cypriot politics, was the main reason for the regime's collapse. The national army regarded itself as the guardian of the country's sovereignty, a view which had oft en prompted its engagement in Greek politics.

INTRODUCTION: THE “THREE PHASES” IN THE HUNGARIAN CONTEXT

In the case of post-Communist regimes, such as Hungary, the “three phases approach” as envisioned by this book might be somewhat more challenging to conceptualise than for those Western European democracies which did not undergo a regime change after WWII. Therefore, before commencing a detailed analysis, a caveat is necessary.

Hungary began its democratic existence in 1989. At the time, it had two repressive, authoritarian periods to account for (the so-called actual repression phase, phase 1): the older one which was responsible for Hungary's part in the holocaust during WWII, and a more recent one, the communist regime which in addition to being a deeply authoritarian regime was also responsible for at least two major waves of grave injustice: one following the stabilisation of the communist regime after its settling in, and another wave of repression aiming to suppress the 1956 revolution. The period of transitional justice falling between 1989 and 2000 is a dense and intense stretch of two decades wherein the qualities of the central phase (phase 2) and the long-term effects (phase 3) as understood by the project concept often merge. This overlap between the central phase and the long-term effects is far from being over. The incompleteness of the transition project is partly due to the fact that transitional justice measures (including retroactive criminal justice measures, amnesties and rehabilitations) came in waves after 1989, as a result of an intense dialogue between the political branches of the state and the Constitutional Court. Nonetheless, despite the adoption of a wide range of legal instruments, as the politics following the 2010 elections demonstrate, the quest to achieve justice for the past continues.

In order to demonstrate that reconciliation over authoritarian regimes and grave injustices perpetrated by them is far from complete in Hungary, suffice it to mention that the conservative-Christian coalition which won a constitution making majority in 2010, in the fi ft h regular democratic election since 1989, declared that the elections amount to a “revolution in the voting booth” which will finally bring so-called “true transition” to Hungary.

HOW TO APPROACH TRANSITIONAL JUSTICE AND MEMORY?

Henry Rousso marks the post-Nuremberg period as the era of the “judicialisation” of the past, in which the legal domain became one of the dominant “vectors of memory”. I agree, but the essential question remains how the judicial vector of memory interacted with the other vectors. This conclusive chapter considers the impact of transitional justice (TJ) policies on longer term memory development. These are oft en perceived to be separate. It is assumed that states in transition first entered a TJ phase to “turn the page” and aft erwards developed a politics of memory to consolidate the status-quo their TJ policies had created. I would like to connect TJ policies and longer term memory development by assuming that TJ policies have had a profound impact on the way societies dealt with the legacy of the dictatorial/war past on the longer intergenerational term. The nature of TJ measures – their broadness/inclusiveness, their timing, the specific nature of the measures, their long-lived effects, their political use (instrumentalisation, etc.) – had a lasting impact on subsequent memorial regimes. The historic European TJ policies are in this sense part of a larger societal settlement that continues to shape collective memories today.

I will use the national chapters in order to detect, analyse and explain certain longer term patterns. This is not an easy feat for several reasons. First, because of the heterogeneity and specificity of our historic cases. There are three groups of case studies (post 1945, the 1970s and post-1989), each with different temporal contexts and lengths. Several authors stress the “uniqueness” of their case. Indeed and by definition, national specificities predominate in these national case studies. A second problem simply lies in the fact that international pattern-analysis spanning several decades involves a staggering amount of potentially relevant variables and tropes, such as the politics of memory, public history, private and public memorialisation, the role of the media and the influence of scholarly research, the role of civil society and self-organising mnemonic communities, developments in judicial contexts and changing public norms. These (and other) aspects all operate within autonomous (and therefore sometimes contradicting) dynamics. Yet they are all relevant to some degree.

INTERNATIONAL LAW AND 20TH CENTURY GERMANY

THE “LONGUE DUREE” OF THE GERMAN “STRUGGLE TO COME TO TERMS”

One of the most extraordinary criminal trials in recent German judicial history ended in Munich in May 2011. There is much reason to believe that this will be the last trial of its kind in the Federal Republic. After fourteen months and more than 90 days of proceedings a court jury delivered a verdict against John (Ivan) Demjanjuk. In July 2009, the former Trawniki guard had been extradited to Germany from the United States, and shortly aft erwards the Central office for prosecuting Nazi crimes, located in the state of Baden-Württemberg, had cited him in the course of its investigations into the extermination camp at Sobibór. The Bavarian state attorney's office brought charges against him, not for genocide but for participation in 28,000 simple counts of “murder”. On the basis of a legal rationale that is surely unique in the history of German criminal justice for Nazi cases, the court sentenced the 91-year-old defendant to five years imprisonment as an accessory to murder, with the term suspended due to the man's advanced age.

Like in a magnifying glass, the Demjanjuk trial allows us to focus on issues that continue to connect the Second World War with the post-war era down to this day. Covered by the neologism of “transitional justice”, these issues now belong to the basic inventory of an enlightened and self-reflective treatment of a dictatorial and violent history. Can a liberal constitutional state take up the mission of atoning for the state-sanctioned injustices of a defunct predecessor regime by punishing the perpetrators and rehabilitating their victims? By what means can the state assure that the rule of law is not derailed, that the fragile balance is kept between the victims’ expectations of justice and the principles of a legitimate legal system? Can the interests of a democracy in consolidation be protected when the institutions of the state itself provide the primary means for pursuing the difficult mission of overcoming the former dictatorship's consequences?

This comparative analysis of policies of dealing with the past is based on ten cases of transition to democracy: Belgium, France, (West-)Germany, and the Netherlands after WWII; Greece, Portugal, and Spain in the 1970s; and Germany, Hungary, and Poland in the post-1989 era (Hungary and Poland after WWII experienced the rise of a dictatorial regime which puts these cases outside the current transitional justice paradigm. They are for the greater part left out of the comparison).

This chapter first compares policies through the description of a number of recurring turning-points in transitional justice decision-making. All countries that are part of the book have gone through episodes where crucial decisions had to be taken in extremely intricate matters. The challenges were common, but did the answers vary? Five such crossroad issues and the multiplicity of responses they generated are discussed. The second section then presents four contextual factors that have shaped both homogeneity and heterogeneity in policy making and implementation. The third section argues that similarities in content and form of policies are more prominent than has oft en been thought.

SAME CHALLENGES, BUT DIFFERENT ANSWERS?

Since the 1990s, practice and scholarship have led to the conclusion that almost all cases of justice after transition are unique. This section tests the alleged diversity through the discussion of a number of recurring turning-points in European transitional justice decision-making. The primary choice bears upon the question of accountability: to punish or close the books. If a policy of prosecutions is developed, new options arrive. Dealing with the perpetrators of state crimes, of collaboration with an occupying army, or with the repressive order requires a choice between two logics: the first leads to their exclusion, the other to inclusion and/or reintegration. That is the second issue. Criminal justice after transition differs from ordinary justice because it addresses simultaneously a political and a legal agenda. Blending the two is a third challenge. Then, there is the question of who should receive privileged attention in tackling the pain of the past: those who are responsible for the sorrow, or the victims. Finally, finding an acceptable balance between forgetting and remembering is a fifth critical challenge.

Within comparative political sciences, the Spanish transition has been oft en praised as a model to follow. Spain's democratisation process has been presented as one of the most peaceful and successful democratic transitions in the recent decades. The traumatic memory of the population after a cruel civil war and a long-lasting dictatorship was not easy to overcome. However, for many authors, the democratisation process facilitated ‘national reconciliation’ among Spaniards. According to the same thesis, the basis for the peaceful and successful stabilisation of democracy in Spain was precisely the decision to leave behind the thorniest aspects of the past.

In the last years, however, different voices have been increasingly claiming that the Spanish transition was not as exemplary as it has been portrayed, mainly because it failed to provide justice and truth to the victims of Francoism. Moreover, and contrary to the most accepted version, it was not a peaceful process either; indeed, political violence was among the features of the democratisation period. Beyond mere description, many of those who defend this new reading of the Spanish transition also claim that it is still necessary today to correct the deficiencies inherited from that period in terms of accountability, truth, and reparations.

In this chapter, we examine in detail the origins and later evolution of transitional justice (hereafter, TJ) in Spain, with the aim of contributing to this discussion by looking into how such TJ framework has been progressively evolving in the Spanish case. In the first section we will present the most relevant historical and legal antecedents of TJ policies in Spain before Francoism. In the second section, we will discuss the irruption of TJ policies during the Spanish democratic regime established from Franco's death in 1975 until the creation of the Association for the Recovery of Historical Memory (Asociacion para la Recuperacion de la Memoria Historica, ARMH) in 2000. In the third section, we will deal with what have been called the post-TJ period, which started in 2000, reaching a peak in 2007 with the approval of the so-called “Historical Memory Law” and remains open until today. In the fourth section, we will offer an overview of the state of Spanish political culture regarding the past. Finally, we will end the chapter with a conclusive summary section.

PHASE I (BEFORE 10 MAY 1940): PRE-WAR LEGAL FRAMEWORK

A policy of neutrality, adopted in 1839, helped keep the Netherlands out of the First World War. In 1918, there was a general sense of relief that the fear of warfare on Dutch territory had not come true. In the second half of the thirties, that fear returned as a result of German rearmament and Adolf Hitler's confrontational politics. As before and during the First World War, the Dutch government had to prepare for possible war and occupation. Especially in regard to economic war preparations, it reverted to the experiences and the emergency measures of 1914–1918. Deliberations on the character of a possible German occupation were influenced heavily by memories of the particularly stringent German occupation regime in neighboring Belgium during the First World War. The Dutch government saw no alternative to looking into the settlements of international law regarding the mutual rights and duties in the relation between an occupying power and the interior administration of an occupied country (the Laws and Customs of War on Land, as formulated at the Hague Convention of 1907).

As the general legal framework for the penalisation of civilian collaboration with occupying forces, article 102 of the Dutch penal code forbade “assisting the enemy”. The article included as “assistance” services to the enemy like espionage and acting as a guide. There was a similar article regarding collaboration in the military penal code. The position of civil servants under a possible occupation was not legally regulated, but directives regarding this problem were issued. In May 1937, the government formulated a set of “Instructions” (Aanwijzingen), which contained rules concerning the correct attitude of governing bodies and civil servants in the case of an enemy attack. The Instructions were similar in meaning to a 1915 memorandum on the same matter. The basic principle was that governmental services should keep on functioning as well as possible in the interest of the general population. The civil servants were instructed to decide for themselves in good conscience if a certain measure served the occupier more than the population. At the municipal level in particular, civil servants were explicitly instructed to refuse cooperation to measures that could directly benefit the enemy's war effort.

TRANSITIONAL JUSTICE IN POLAND DURING AND AFTER WORLD WAR II

INTRODUCTION

For various reasons it is difficult to compare Polish experiences with Transitional Justice to those of other countries. First of all, Transitional Justice is usually used as a notion for mechanisms and processes which societies experience on their way from a dictatorship to a democracy. If the notion of Transitional Justice is to be used in a non-normative way, it should also be applied to forms of extraordinary justice which occur when a country goes through a transition from a democracy to a dictatorship. This is the case of Poland between 1944 and 1948. Poland emerged from the war as a very fragile multiparty democracy, occupied by the Soviet Army.

Due to pressure of the USSR and Poland's Western allies, the multiparty interim government which was ultimately formed comprised members of the (anti- Soviet) Socialists and of the Polish Peasants’ Party, whose members were subsequently coerced out of the public administration, the security sector, the local administration and finally also out of government. The most prominent representative of the non-communist anti-German resistance, Prime Minister Stanisław Mikołajczyk, decided to flee to Britain and form (once again) a government in exile, while his supporters in the country were being murdered, abducted or jailed by Polish and Soviet security organs. During the second part of the forties, the country was embroiled in a kind of internationalised civil war, during which the Soviet Union strongly supported the weaker communist movement, whereas Poland's Western allies only reluctantly gave assistance and support to the stronger part, the pro-Western non-communist parties.

Unlike the situation in most Western European countries, which had been liberated by US and British forces, power in Poland was strongly contested and the question of the country's geopolitical orientation and its future political system remained unsolved until 1948, when the pro-Soviet communist movement took power and launched the Stalinisation of all spheres of public and (to a large extent) private life.

The second reason why post-war transitional justice in Poland is difficult to compare to other countries is linked to Poland's geopolitical shift to the west, which was accompanied by massive forced migration and exchanges of population between Poland and its Eastern Soviet neighbors, the Lithuanian, Byelorussian and Ukrainian Soviet Republics.

INTRODUCTION

During the immediate post-apartheid period, much legal discourse in South Africa focused on the promise, set out in the country's new democratic constitution, of a better life for all South Africans. In light of South Africa's dark history under colonialism and apartheid, it is perhaps not surprising that much legal and scholarly discourse was, and still is, imbued with a sense of optimism that the constitutional project on which the country has embarked will eventually secure true dignity and substantive equality for the majority of South Africans. It is difficult to dispute the great strides that have been made in many areas of social life in the country, from the delivery of housing, water and electricity to hundreds of thousands of poor households, to the promotion and protection of the dignity of minority groups, through groundbreaking measures such as the recognition of gay marriages. In no small part, many of the important advances brought about in pursuance of substantive equality and true dignity for all South Africans have been due to the enlightened and impressive jurisprudence developed by the South African Constitutional Court since 1995.

Despite all the achievements of the post-apartheid period, however, it is the contention of this chapter that dissonant notes are increasingly being sounded within the legal and scholarly discourse referred to above. An alternative legal discourse has begun to emerge which is far more critical of South Africa's constitutional project and its prospects for success. In some cases, this alternative legal discourse seems to draw inspiration from the broad traditions of the critical left and appears, to us, to resonate with the broad approach adopted by the Critical Legal Studies (CLS) Movement which was popular during the 1970s and 1980s. It is the purpose of this chapter to trace various elements of the emerging critical discourse, making use of a CLS-inspired approach. Among the broad questions posed by this chapter is whether or not post-apartheid South Africa, in particular its legal system and new constitutional order, has lived up to the expectations of those who struggled for so long to end the apartheid system.

INTRODUCTION

‘Commonwealth’ has been inserted into the title of this chapter for two reasons: firstly, my own work over the years has concentrated on the Anglophone countries of sub-Saharan Africa; secondly, the Commonwealth has established fundamental principles of governance against which the performance of member states may be assessed. What can the experience of other African countries teach students of South Africa's often painful constitutional journey? What general lessons, if any, emerge from the experience of African countries for those undergoing a process of transition?

A comparative perspective also calls for an historical perspective. In the history of the political and constitutional evolution of African countries in the second half of the twentieth century and the turn of the twenty-first, a number of overlapping eras of transition may be discerned. Firstly, the era of decolonisation, characterised by the ‘Wind of Change’ which began to blow in sub-Saharan Africa with the independence of Ghana in 1957. By 1975, the whole of sub-Saharan Africa was decolonised except for Southern Rhodesia (where the white minority regime of Ian Smith had made an illegal declaration of independence in 1965), South West Africa (occupied by South Africa) and, of course, South Africa itself as far as the majority of the population was concerned. Sadly, the 1970s and 1980s proved the lost decades of good governance, characterised at best by the establishment of ‘one-party states’ and at worst by the replacement of constitutional government by military regimes ruling by decree.

In the 1990s, a new era of transition – a second wind of change – brought about fundamental constitutional changes throughout sub-Saharan Africa. In Anglophone, Francophone and indeed Lusophone Africa, one-party and military regimes were replaced by constitutional orders designed to promote plural democracy. Generally, however, the new constitutional dispensations reflected presidential models owing more to Washington and Paris than to Westminster. It is in this context of change across the continent that the remarkable transition in South Africa from 1990–1994 should be seen.

In this collection of essays, we bring together the reflections of some of South Africa's leading scholars on a number of aspects of South Africa's transition to democracy and the country's efforts at ‘nation-building’ since 1994, and set them in comparative and historical perspective with the addition of some international contributions.

Last week, South Africans mourned the passing of former President Nelson Mandela and celebrated his long and remarkable lifetime of struggle, commitment and service. In April 2014, South Africa will mark the elapse of twenty years since its first democratic elections. These significant events in the life of the country and its people are generating both internal and international deliberation on the current state of the nation.

The range of topics included in this volume is deliberately broader than one might conventionally expect to find in a book published in a series on transitional justice. We take the view (as Catherine Jenkins argues in Chapter 1) that the narrower definitions of transitional justice to which we have become accustomed, which focus heavily on accountability for past crimes, are accidents of history, based largely on the origins of the battle against impunity in the relatively wealthy and developed countries of Latin America. In our view, these definitions of transitional justice are inadequate and inappropriate for most African states, in which deep and widespread poverty is a major concern and democratic institutions and processes may never have been firmly rooted. For these countries, the concept of justice in transition must, we suggest, be wider, reflecting the demand for both bread and freedom and the need for extensive reform and institution-building. In the case of South Africa, the constant references in political discourse since 1994 to the need for ‘nation-building’ and ‘transformation’ reflect both the enormity of the legacy of apartheid and the daunting scale of the socio-economic undertaking facing post-apartheid South Africa. In the light of South Africa's commitment to a new constitutional dispensation and to legal regulation, we have chosen to give a particular focus to the ways in which law and lawyers have played a role in social and political change since the early 1990s, though the contributions in the volume are not exclusively from scholars with a disciplinary background in law.

INTRODUCTION

Now, many years after the South African Constitutional Assembly adopted the Constitution, it is difficult to recall just how difficult the settlement on the language of instruction in education was. Today, language issues are overshadowed by the problems of establishing democratic ways of acting and mitigating inequality. But, at the time of negotiating the 1996 Constitution, the demand of Afrikaners for the protection of Afrikaans commanded attention because the support of the Afrikaner-based outgoing National Party (NP) government was necessary for both formal reasons – the African National Congress (ANC) did not have the two-thirds majority required for the adoption of a new Constitution – and substantive ones – if Afrikaners were not brought on board, a real danger existed that they would actively seek to destabilize the new democracy.

Of course, in a multilingual country like South Africa, a claim for the protection of a language need not be controversial – conceding some languageclaims can strengthen, rather than undermine, the political order. But the use and state protection of Afrikaans had been highly politicized in South Africa for decades. Agreement that Dutch should have the same status as English as an official language was central to the achievement of Union in 1910, when the two former Dutch or Afrikaans-speaking Boer Republics were united with the two British colonies to create a single country. By the time the National Party won power in 1948, Afrikaner nationalists had articulated an exclusive vision of Afrikaner identity of which single-medium schools were a pillar. Through the apartheid years and against the expectations of many observers, Afrikaans consolidated its position as a public language, but it remained widely perceived as the language of apartheid ideology. As Giliomee comments, ‘Afrikaans, the Afrikaner policy of apartheid and the Afrikaner-controlled state had become locked in a tight and suffocating embrace. Afrikaans had become the language of the oppressor – the medium used when white policemen arrested black pass offenders or when white civil servants ordered blacks or colored people out of their houses in racially mixed slum areas.’ In the 1970s, apparently once again concerned about the survival of Afrikaans, the apartheid government instituted a requirement that black students be taught in both English and Afrikaans.

INTRODUCTION

I will introduce my discussion of the transformation of land law with a disclaimer, followed by a number of broad assumptions that I rely on but will not argue. Having stated these assumptions I will first set out a context and then proceed to dwell on the specific point about transformation that I want to discuss in this chapter.

First, the disclaimer. In the post-1994 South African context, it was always clear that land reform had to be an important part of social and economic transformation and hence people understandably associate land law with land reform; many readers, especially from outside South Africa, might therefore expect an introductory overview of the land reform process. However, as I want to discuss a specific aspect of land reform in this chapter I will not give a broad overview of the land reform process or the system of legal and other measures involved in it; nor will I analyze or assess the failures and shortcomings of the land reform programme or review possible solutions or remedies for them.

In the absence of a general discussion of land reform it is necessary to start with a number of general assumptions that I take for granted, without explaining or arguing them. I will therefore just state these assumptions as a point of departure. Firstly, I assume that it is now widely accepted that apartheid land law was not and could not have been dismantled purely through the abolition of the apartheid laws of the former minority regime. Secondly, I assume that the lasting legacy of apartheid land law (evident in remaining problems with access to land and housing, continuing evictions and the like) was not and could not have been rectified automatically by the promulgation of the land reform laws.

Thirdly, I assume that, apart from the abolition of apartheid laws and the promulgation of land reform laws, a complex range of further legislative, administrative and judicial interventions are required if the land reform process is to succeed on a significant scale.

INTRODUCTION

Can a transition to constitutional democracy benefit women? If so, in what ways? What do entrenched rights to equality, dignity, freedom from violence and reproductive choice mean in a society that is one of the most unequal in the world, with a high level of gender-based violence and patriarchal social attitudes? This chapter engages questions of constitutional democracy and human rights, not just in terms of the formal and quantitative measures so often used to advertise South Africa as a ‘women-friendly state’, but also in a more qualitative engagement with some of the struggles and compromises that shaped the formal victories, the boundaries that have been forged by rightsclaiming in the public sphere, and the manner in which women in civil society and the state have been able to engage the normative framework of rights to shape their public and private meanings and (possibly) to bring about changes in their own lives.

The chapter begins with a brief account of women and women's struggles in the apartheid state, followed by a discussion of the transition in the early 1990s and the political conditions and struggles that shaped the constitutional text. It suggests that the development of a constitution based on human rights and the primacy of (gender) equality was a profound advance for women, whose struggles were also able to establish gender equality as a significant indicator of democratic progress after 1994, and then to harness the language of equality and rights to push for a series of formal advances. The balance of this section briefly describes these legal and constitutional gains in Parliament and the courts and some of the limitations of these formal advances for women.

Two case studies are then presented to tease out the nature and scope of rightsbased transformation for women, to illustrate the extent to which women have been able to use rights to secure progressive ends, what has been achieved by this and to show how these rights remain subject to competing interests and social norms. The first, longer, case study looks at developments in culture and customary law, while the second considers reproductive choice.

INTRODUCTION

In the 1990s, the first democratic elections in South Africa and the early postapartheid era under the presidency of Nelson Mandela commanded widespread international interest and, indeed, much admiration. The language of the South African ‘miracle’, referred to above by Justice Cameron of the Constitutional Court of South Africa, achieved common currency. Archbishop Desmond Tutu suggested in 2004 that South Africa's success was particularly important because the country was ‘so utterly improbably a beacon of hope for the rest of the world’. Some aspects of the South African experience have been an inspiration to other societies emerging from conflict or repression: South Africa's process of constitution-making has received considerable international attention for this reason, as has the work of the South African Truth and Reconciliation Commission (‘TRC’). A striking feature of the transitional justice movement has been its interest in comparative perspectives. Just as South Africans attempted to learn from the experiences of transition in Latin America and Eastern Europe, so South Africans have received invitations to speak and consult internationally on how to deal with a legacy of gross human rights violations. In the 1990s, South Africa became the poster-child for the concept of ‘reconciliation’ in transitional societies, and President Mandela was personally widely admired as the great reconciler. As former US President Bill Clinton put it: ‘One lesson we all have to learn from Mr. Mandela is how to build a community across divisions of race, religion and tribe.’

In recent times, however, the fault-lines in South African society have increasingly come into focus. Reports of poverty, inequality and crime, of protests at lack of service delivery, of xenophobia, of police violence, and of increasing racial tensions and the polarisation of political discourse, have appeared in the world's press.

INTRODUCTION: THE STRUGGLE FOR WHAT?

On the V&A Waterfront tourist area in Cape Town stand slightly larger than life-size bronze sculptures, next to each other, of the four South African Nobel Peace Prize winners: Albert Luthuli, Desmond Tutu, Nelson Mandela and FW de Klerk. Awarding such medals to four figures from a single country could be seen as reflecting recognition of and high regard for three periods in the process of change in the country towards a democratic order: the long struggle against a racist and unjust society; the resolution of that struggle through a negotiated settlement; and a subsequent process of revelation, reconciliation and transition to a new notion of being South African. There would be one understandable misperception – Tutu did not receive his award for the post-1994 contribution through serving as chairperson of the Truth and Reconciliation Commission (TRC). In each case, both in the award and in the statements from the recipients, the recognition was for a people's struggle against exclusion from democracy.

Albert Luthuli, then president of the already banned African National Congress (ANC), received his Nobel prize in December 1961 in Oslo at a dramatic turning point in the struggle, shortly after the Sharpeville massacre, a change from peaceful appeals for inclusion in a single polity to armed struggle against an intransigent and racist apartheid government. In his acceptance speech Luthuli referred to a ‘threefold significance’ to the award: first, as a ‘tribute to my humble contribution to efforts by democrats on both sides of thecolour line to find a peaceful solution to the race problem’; second, to recognise that the award ‘is a democratic declaration of solidarity with those who fight to widen the area of liberty in my part of the world. As such, it is the sort of gesture which gives me and millions who think as I do, tremendous encouragement’; and, third, ‘it is a welcome recognition of the role played by the African people during the last fifty years to establish, peacefully, a society in which merit and not race, would fix the position of the individual in the life of the nation’.