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:

bulletBegin to restore a sense of dignity to victims of gross human rights violations.
bulletRelate to the loss suffered by victims.
bulletRelate to the socio-economic context of victims.
bulletRelate to the cultural context of victims.
bulletRelate to the capacity of the government, attendant ministries and civil society to implement policy recommendations.

These measures demand:
bulletThe individualised (idiographic) details of each person found to be a victim.
bulletThe details should be a true reflection of a victim’s situation.
bulletThe 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

bullet
bulletcompensation,
bulletex gratia payment,
bulletrestitution,
bulletrehabilitation or
bulletrecognition.

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:
bullet
bulletThe seriousness of an individual victim’s suffering.
bulletThe need to shorten the time to implement service provision.

3. Victims

Victims include:

a) Persons who suffered harm in the form of...
bullet
bulletphysical injury
bulletmental injury
bulletemotional suffering
bulletpecuniary loss
bulletsubstantial 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
bulletemotional suffering and pain,
bulletmedical care and assistance,
bulletmaterial or financial need and limitations,
bulletaccess to and continuation of education and
bulletthe 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

bulletEmotional 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.
bulletThose 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.]
bulletThose victims who have been orphaned as a direct result of the violation and have inadequate material support to meet their immediate emotional needs.
bulletOnce 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.
bulletThe 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.
bulletA network audit of existing credible support services will be forwarded to the UIR Desk by the RRCC.
bulletThe 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.
bulletRelevant 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.
bulletProvision 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.]

MATERIAL INTERVENTIONS

Measures

Criteria

Provision

bulletThe 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.
bulletThose victims, both young and old, who are terminally ill and/or frail and will not survive beyond the life of the TRC.
bulletThose victims who have been orphaned as a result of the violation and have inadequate material support.
bulletOnce 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.
bulletProvision 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.
bulletThose 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.
bulletThe RRC Committee will recommend to the UIR Desk that the structure of payments be standardised.
bulletThe UIR desk will take appropriate action to re-establish lost or diminished pension rights.
bulletThe 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.
bulletThose 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.
bulletThe facilitation of emergency shelter
bulletThose victims, and their dependants, who as a result of the violation have no fixed home or shelter.
bulletThose victims who have been orphaned as a result of the violation and are in particularly dire living conditions.
bulletOnce 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.
bulletThose 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.

MEDICAL INTERVENTIONS

Measures

Criteria

Provision

bulletMedical 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.
bulletMedical interventions will be provided for debilitating conditions and provision of medical equipment.
bulletThose victims, both young and old, who are terminally ill and/or frail and will not survive beyond the live of the TRC.
bulletThose victims, who are physically disabled as a result of the violation
bulletThose 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.
bulletThose victims who have been orphaned as a result of a violation and have inadequate material support to meet their immediate needs.
bulletOnce 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.
bulletProvision 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.
bulletA network of medical services will be established through the UIR Desk.
bulletThe 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.
bulletMedical 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.
bulletProvision 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.]
bulletLimited 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.

SYMBOLIC INTERVENTIONS

Measures

Criteria

Provision

bulletMeasures 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.]
bulletExhumations and reburials. (individual/collective)
bulletTombstones and shrines. (individual/collective)
bulletFacilitation of feedback on cases under investigation.
bulletFacilitation of public acknowledgements and apologies.
bulletVictim-offender mediation
bulletThose victims, both young and old, who are terminally ill and/or frail and will not survive beyond the life of the TRC.
bulletOnce 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.
bulletThe 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.
bulletThe 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.
bulletPublic acknowledgements and apologies will be facilitated through the RRC Committees in consultation with the HRV Committees.
bulletVictim-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.

EDUCATIONAL INTERVENTIONS

Measures

Criteria

Provision

bulletEducational support to be facilitated through the granting of financial assistance or bursaries for the completion of studies at senior secondary or tertiary level.
bulletFacilitation to access and utilise free primary and secondary education.
bulletFacilitate access to special education, particularly for those disabled either physically mentally as a result of the violation.
bulletThose 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.
bulletChildren 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.
bulletThose 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.
bulletThose victims who have been physically or mentally disabled as a result of the violation and require specialised education.
bulletOnce 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.
bulletThe 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.
bulletThe 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.
bulletFor 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.
bulletFacilitate 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

bulletThe 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?
bulletRecommendations 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.
bulletImplementation can include an individual assessment interview (see measures)

Who will be considered?
bulletA 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?
bulletA 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.
bulletIn the case of Amnesty referrals (where finding has already been made) an RRC form will be used.
bulletAll people to be considered for UIR measures will fill out a UIR Information form for a second assessment.

How will recommendations be made?
bulletRegional 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?
bulletThe 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?
bulletRRC 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.

bullet
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

The precedent that the UIR policy framework will set with regards to the final RR policy framework should be considered and discussed. Because of the basic philosophy underlying all reparations the final policy framework cannot fundamentally differ from the UIR framework. Hence the UIR framework discussed in this document should serve as the basis on which the final policy will be formulated.

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UIR Policy Framework
14 Sept 1996