ABSTRACT
The current vogue towards reconciliatory politics has enabled the subversion and
suppression of the role of the law as a key contributing factor to the transitional
period. As reconciliation is the ‘sine qua non for democracy’ (Ratner, 1999, p. 734),
law becomes relevant only in so far as it provides a mechanism through which to
enable the realisation of reconciliation, rather than a substantive theme in need of
redress and transformation itself. The defunct or biased state of the legal system,
a lack of resources and the fragility and power-politics inherent in the transitional
period all justify the avoidance of the law beyond securing amnesties or establishing
quasi-judicial bodies, such as commissions of inquiry and truth commissions. Thus,
a stronger or more comprehensive role must wait until the unidentifiable, reconciled
future. Such avoidance would be acceptable had law played a non-divisive role in
perpetuating conflict. Yet, the treatment of law as a mechanical tool of reconciliation
misses the crucial role law itself plays in enabling or denying reconciliation, precisely
because law routinely creates the structural conditions necessary to sustain conflict.
