In the previous post, I mentioned that Sitze (2013) argues that the TRC had its jurisprudential origins (or precedents) in “colonial sovereignty and governmentality”. I discussed how Sitze argues that the indemnity convention originated in the theory of parliamentary (political) sovereignty of Dicey’s English constitutional law. I then discussed how the indemnity convention, as an institution of sovereignty, was abused in the British colonies and, specifically, in colonial and apartheid South Africa, to the point that indemnity could no longer fulfil the function of reconciling legal and political sovereignty when they conflicted. This was the function that Dicey had originally assigned to it. Instead, indemnity became a “normal”, as opposed to an “exceptional”, part of South African constitutional law and legislation – the colonial and apartheid governments had recourse to it so frequently that the very distinction between legal and political sovereignty entered into what Italian philosopher, Giorgio Agamben, calls a “real zone of indistinction”. I then argued that the collapse of the distinction between legal and political sovereignty had the knock-on effect of practically collapsing the distinction between colonial sovereignty and governmentality.

When discussing governmentality and biopolitics in his later work, Michel Foucault asked himself how a state that functions in the biopower mode can justify to itself the need to kill people, to kill populations, and to kill civilizations. More pertinently, how can a state not only wage war on its adversaries but also expose “its own citizens” “to war, and let them be killed by the millions”? His answer is, of course, by “activating the theme of racism”. Racism, then, justifies “the death-function in the economy of biopower”. As Mbembe (2013) has added: “The function of racism is to regulate the distribution of death and to make possible the murderous functions of the state.” And, as such, it is bounded up with the “workings of a state that is obliged to use race, the elimination of races and the purification of the race, to exercise its sovereign power”. This means that biopower “functions through” “the old sovereign power of life and death”. It is at the moment of state racism, then, that biopower becomes necropower and biopolitics turns into necropolitics. If “indemnity” was intricately bounded up with the proliferation of biopolitics and the race war in colonial and apartheid South Africa then “indemnity” is, in fact, the juridical banner under which apartheid biopower “functioned through” sovereignty. “Indemnity” allowed the order to rubberstamp and so legalise the unleashing of its death-function on the black population of South Africa – in the name, of course, of the biopolitical imperative – the salus publica (“safety”) of the white minority population.

In the previous post I also indicated why it can be said that the TRC repeated, without adequate differentiation, the indemnity jurisprudence of the apartheid era. Sitze shows that another characteristic device of governmentality, the commission of inquiry, played as significant a role in the conceptualisation of the TRC.

Unfortunately, this quasi-juridical form also played a major role in the waging of race war on the black population of South Africa. The specific form of the commission of inquiry to which Sitze refers are those commissions that the colonial and apartheid governments appointed in the aftermath of a violent uprising or riot in the population with a view to enquiring into (as if it didn’t know) the “causes” of the particular rebellion and to determine how what it called “race relations” (read racist oppression) could be improved in order to prevent further incidents. Sitze calls this form of commission of inquiry the “Tumult Commission”.

He contests as ahistorical the conventional wisdom of transitional justice (as well as of the first post-apartheid government) that no prior commission had placed “ordinary people so fully and completely at its centre as did the TRC”. Instead, he argues that “long before the emergence of the TRC […] there was another, more prosaic name for the administrative organ tasked with listening to, evaluating, and archiving the voices of the victims of abuses of illegal state activity: the Commission of Inquiry”.

As with indemnity, Sitze is at pains to emphasise that the point of recalling that the TRC “deploys an administrative apparatus that was central to the very system it rightly declares evil”, is not to argue that the TRC was in advance or inevitably “contaminated” by or simply repeated colonial ways of doing. Rather, it is to try to understand “the TRC’s relation to its precedents in the apartheid state”.

That being as it may, Sitze presents a compelling case that the commission of inquiry, at least in apartheid South Africa, was not a neutral or empty husk, but rather that it was a “technique of governmentality that was deployed as a means to the end of securing and normalising colonial conquest”. Whereas the Tumult Commission was predominantly an institution of colonial governmentality this does not mean that it did not avail itself of sovereign power when this was expedient. Sitze writes: “[T]he fundamental horizon within which the Commission of Inquiry posed the question of governance for itself was both ‘sovereign’ [because the Commission was a product of sovereign command] […] and ‘biopolitical’ (because of the substance of the inquiries themselves).”

I believe that the above was the case because the Tumult Commission represented the device through which sovereign power “functioned through” biopower / governmentality. Whereas indemnity in the colonies, for reasons that were provided previously, could be said to have been the mode in which biopower functioned through sovereignty, the Tumult Commission can be said to have represented the other side of the equation: it was the mode in which sovereignty functioned through biopower, not least because the overarching point of the Tumult Commission and its biopolitical inquiries in relation to the population was always, as Sitze argues, a “means to the end of ‘keeping the peace’ “, where “peace” means the restoration of trust / public confidence in the sovereign. The Tumult Commission thus functioned as an institution of governmentality that had as its ultimate aim the restoration and / or maintenance of sovereign power.

Sitze asks in “what respect” the TRC operated as a “Tumult Commission of a Special Type”, a governmental apparatus that, despite the best intentions of its architects and participants, “ended up performing little more than an unusually extensive whitewashing of an unusually extensive and violent period of martial law”. Moreover, he adds that the extensive solicitation of the voices of the victims of the apartheid state’s violence does not on its own or by itself adequately disjoin the TRC from its Tumult Commission antecedent. As Sitze continues to show, the Tumult Commission, at least since the time of the Jamaica Royal Commission, routinely solicited the voices of the victims of state violence. Indeed, victim testimony was a crucial component of the Tumult Commission’s biopolitical mandate to enquire into how and why the state’s efforts peacefully to manage the population, failed.

And to the objection that the TRC “obviously” listened differently to these voices and “obviously” judged them differently, Sitze points to the numerous studies of the TRC that have repeatedly been all too quick to point out that “the TRC was plagued by an excess of unverifiable and ambiguous testimony and that many stories offered by victims were incomprehensible and unreliable”. Further, with reference to the way in which the Tumult Commission routinely called on experts of all sorts to testify for the “native” victims who “obviously” could not testify for themselves, Sitze asks whether the equivalent of this expert discourse operative in the TRC was not precisely represented by the trope of “trauma studies’ which was all too quickly enlisted to render “intelligible” victims’ testimonies. “Isn’t it here, then, still the case that the victim of state violence is assumed to be unable to independently represent her suffering and so must depend on a trained expert to be represented?”, he asks. And perhaps the final blow here comes when Sitze points to the excessive even-handedness of the TRC in terms of judging the actions on the different sides of the conflict. (This “even-handedness” also played a significant role in the way in which the TRC approached questions of race and racism). Sitze concludes that this approach smacked of the “concomitant cause” paradigm of the Tumult Commission, according to which violence on the part of the victims of and resistance to apartheid were repeatedly judged – in the key of “tragedy” – as on par with and contributory to the state’s excessive use of force.

And the problem with “tragedy”, as any English major will tell you, is that it tells the story in such a way that no one is to blame, because everyone is to blame. No wonder that George Bizos (who was intricately involved in representing victims before the TRC) entitled his book on the transition by way of a rhetorical question: No one to blame? (1998).


  • Jaco Barnard-Naudé is Professor of Jurisprudence and Co-director of the Centre for Rhetoric Studies in the Department of Private Law at the University of Cape Town. In the United Kingdom, he is the British Academy's Newton Advanced Fellow in the School of Law at Westminster University and Honorary Research Fellow at the Birkbeck Institute for the Humanities, University of London. He is a board member of the Institute for Justice and Reconciliation (IJR) and of the Triangle Project, Cape Town.


Jaco Barnard-Naude

Jaco Barnard-Naudé is Professor of Jurisprudence and Co-director of the Centre for Rhetoric Studies in the Department of Private Law at the University of Cape Town. In the United Kingdom, he is the British...

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