Milan Kundera, in the Book of Laughter and Forgetting argues that “the struggle of man against oppression is the struggle of memory against forgetting.” December 13, 2004 marks the triumph of memory in a tremendous sequence of events that sees the end of a nightmare for many, and for an increasing few, heralds the rekindling of their worst fears. On this day, Judge Guzman of the Supreme Court in Chile declared the eighty-nine year old General Augusto Pinochet fit to stand trial for his role in kidnappings and murder committed during his tenure as Head of State of Chile from 1973 to 1990, a decision subsequently upheld on appeal on January 4th 2005. This decision caps one of the longest struggles for restitution and sets a towering precedent in international human rights law. In this victory, there is a pivotal lesson for despots in Africa and elsewhere-both for those in office and those who have relinquished power-many whose legacies unlike Pinochet’s, bear little hope for any approbation. The lesson is that there is no statute of limitations on the past, no distortion of history, and no appropriation of memory. On this day, freedom took a significant step forward. The nightmare is over, and not only in Chile.
The brutality of Pinochet’s regime has been widely chronicled. More than 3,000 people reportedly died and thousands more were victims of extra-judicial abuses including torture. The drama that culminated in this arrest has been long, staged at home and abroad. It has shifted pendulously from a grant of immunity to Pinochet, to extradition battles, to pardons on health grounds. After relinquishing power, Pinochet became a senator for life, a position which granted him immunity from prosecution. In 1998 while on a trip in the UK, Pinochet was arrested on torture charges on a Spanish warrant and subsequently embroiled in a legal tussle that lasted fifteen months. The House of Lords overruled a High Court decision that had found General Pinochet’s arrest unlawful on the basis that he was entitled to immunity as a former Head of State. In a decision with significant resonance in international human rights law, they ruled that General Pinochet was liable for crimes against humanity as such crimes were inconsistent with the official actions of a head of state and therefore not entitled to immunity. It took a reprieve from the Home Office which deemed Pinochet unfit to stand trial for health reasons for him to be allowed to return home where charges preferred against him were once again dropped in 2002 on health grounds before Judge Guzman’s latest ruling.
One reason why restitution has taken so long is that Pinochet’s legacy is a complicated one. His standing in the armed forces, a key constituency in a fragile polity, is one factor. His supporters, of whom they are many, argue that despite the human rights abuses perpetrated during his watch, he restored and endowed significant economic reforms. Though Chile’s economic record in this period is mixed with higher income inequality, supporters point to significant improvements such as a privatized social security system that is the envy of many globally, an investment grade rating and the lowest country risk premium in Latin America. Chile’s social indicators such as educational attainment are also among the highest in Latin America. These reforms many of which predate 1990 arguably played a role in anchoring a relatively stable democracy in Chile today. This has in turn helped to sustain the clamor for a reevaluation of Pinochet’s legacy in its entirety despite concerted efforts by his supporters to burnish less illustrious parts of the historical record.
The failure of these attempts serves as an important lesson for successor governments such as the three democratic governments that succeeded Pinochet. Wole Soyinka, the Nigerian Nobel Laureate, writing in the New York Times Magazine in 1999, argued that freedom was the enduring idea of the 20th century. The past is an unremitting yoke not easily shaken off and there can be no reconciliation without restitution. Ultimately, justice delayed is justice denied. Today, freedom rings and wins, and justice delayed is a ghost that can be laid to rest. The nightmare is over, and not only in Chile.
