Gradual Institutional Change
Turning to historical institutional theories of incremental change offers a compelling lens to explain how an earlier investigative institution was deployed with a similar institutional framework to previous commissions of inquiry but contributed to the strength of the South African TRC, rather than repeating status-quo operations. Gradual or incremental change approaches to institutional change identify how and why institutional arrangements can be adjusted, in spite of the persistence of institutions. Thelen argues that path dependence still informs incremental change explanations, but “embed[s] these elements in an analysis of ongoing political contestation over institutional outcomes.”32 In doing so, incremental change frameworks highlight the processes through which institutional arrangements persist, yet are renegotiated periodically in ways that alter their form and functions, or continued use.
32 Kathleen Thelen, "How Institutions Evolve: Insights From Comparative Historical Analysis," ed. James
This incremental change approach explains change in more gradual patterns, and offers insight into the smaller adjustments that are made to institutions that allow them to adapt or alter their function or purpose. Thelen, and, Mahoney and Thelen offer four models or variations to explain incremental change in institutions: “displacement,” “drift,” “layering,” and “conversion.”33 As is articulated below, the mechanics of conversion help to explain institutional persistence and redeployment of information-gathering institutions in South Africa.
Displacement is conceptualized by Mahoney and Thelen as “the removal of existing rules and the introduction of new ones.”34 During the transitional period in South Africa, many of the institutional rules for information gathering stayed formally the same. As the coming chapters illustrate, although other Apartheid legislation was repealed, the effects on information gathering cannot be characterized as displacement because these remained intact. In processes of layering, existing institutional features continue to operate and structure relationships and decisions, but additional rules and features are added to these structures.35 Layering “occurs when new rules are attached to existing ones, thereby changing the ways in which the original rules structure behavior.”36 Analysts point to the addition of private pension rules in addition to public pension systems as an example of layering.37 In this example, although a public system often remains in place, the addition
33 Mahoney and Thelen, "A Theory of Gradual Institutional Change," 1-37; Thelen, "How Institutions
Evolve: Insights From Comparative Historical Analysis," 213.
34 Mahoney and Thelen, "A Theory of Gradual Institutional Change," 15.
35 Thelen, How Institutions Evolve: The Political Economy of Skills in Germany, Britain, the United States,
and Japan, 35. See also, Mahoney and Thelen, "A Theory of Gradual Institutional Change," 16.
36 Mahoney and Thelen, "A Theory of Gradual Institutional Change," 16.
of a private system can change the behaviour of individuals and associated interest groups, which will ultimately introduce change to the institution itself.38 In the South African case under consideration, the tension is that the same institutions were deployed and redeployed, despite the transitional opening that may have facilitated the incorporation of new institutions that might illustrate other variations of change.
Drift and conversion neither remove old rules, nor do they see new rules implemented. Rather, these incremental change processes occur when the impact or enactment of the existing rules changes.39 Drift occurs when institutional configurations are not adjusted to reflect changes in the environment.40 Institutional arrangements have different impacts because of the changed context.41 Onoma argues that the development of land-buying companies in Kenya is an example of “drift.”42 The initial purpose of the land- buying companies was to enable Kenyans to purchase land that became available, yet remained unaffordable, as settlers left in 1960s and 1970s. However, as Onoma explains, in the years that followed, these companies were taken over by fraudsters who continued to engage in land transactions, which turned out to be false, channeling money into political campaigns and becoming tools to pressure shareholders for political support.43 In this example, the manipulation of the land title process was worsened by democratization given
38 Thelen, "How Institutions Evolve: Insights From Comparative Historical Analysis," 226-227. 39 Mahoney and Thelen, "A Theory of Gradual Institutional Change," 16-18.
40 Ibid., 17. 41 Ibid., 17.
42 Ato Kwamena Onoma, "The Contradictory Potential of Institutions: The Rise and Decline of Land
Documentation in Kenya," in Explaining Institutional Change: Ambiguity, Agency, and Power, ed. James Mahoney and Kathleen Thelen (Cambridge: Cambridge University Press 2010), 78.
the political value in fraudulent land holdings.44 The mechanics of ‘drift’ illustrate how institutions created for one purposes can end up serving entirely different ends.
Conversion is defined as a change in goals, where institutional rules themselves are not changed.45 In this variant of incremental institutional change the “rules remain formally the same but are interpreted and enacted in new ways.”46 Institutional ambiguities can be used by well-positioned actors to change how institutional elements are implemented. As Mahoney and Thelen argue, “lacking the capacity to destroy an institution, institutional challengers may be able to exploit its inherent ambiguities in ways that allow them to redirect it toward more favourable functions and effects.”47
In each of these variations, Mahoney and Thelen identify the role that actors have within particular institutional settings and the degree of ambiguity in the institution in order to explain the type of change that occurs. In settings where actors have the power and capability to change institutional configurations, layering and drift are possible. When actors are not positioned to make outright changes to institutions and rules, ambiguity in the design may enable actors to make adjustments in how institutions are deployed.48 Mahoney and Thelen argue that high or strong veto capabilities exist when actors have “access to institutional or extra-institutional means of blocking change.”49 When there are
44 Onoma, "The Contradictory Potential of Institutions: The Rise and Decline of Land Documentation in
Kenya," 88.
45 Mahoney and Thelen, "A Theory of Gradual Institutional Change," 17. 46 Ibid., 17.
47 Ibid., 18. 48 Ibid., 10-14. 49 Ibid., 19.
no such capabilities to prevent or block change, gradual institutional change is likely to take place through displacement and conversion. Whether institutional change takes the form of displacement or conversion depends on the degree of ambiguity in interpreting or enforcing the rules.50 Low levels of space for interpretation and low veto capabilities are associated with displacement. High levels of interpretation and low levels of ambiguity are associated with conversion.51
The four types of incremental institutional change are also differentiated based on their treatment of existing institutions and response to external environments.52 Two of these, displacement and layering, include the introduction of new rules or institutions.53 Displacement is considered to occur when new rules are introduced and old ones removed.54 Since displacement involves the replacement of an old institution by a new one, its explanatory utility is limited for this discussion. Each of the institutions under consideration in the project—the commission of inquiry, witness protection, and amnesty—were adjusted, but not replaced outright.
In the South African case under consideration, conversion offers a useful and relevant framework for assessing and explaining both the persistence of the commission of inquiry as an institution of information-gathering, and a process of gradual change, given the difficulty in changing the ‘locked-in’ institutional arrangements that structure state-led
50 Mahoney and Thelen, "A Theory of Gradual Institutional Change," 19. 51 Ibid., 19.
52 Ibid., 15. 53 Ibid., 16-17.
54 Mahoney and Thelen, "A Theory of Gradual Institutional Change," 16; Streeck and Thelen,
investigations. The context of institutional enactment, including the circumstances of decision makers, influenced both the opening for change or persistence and the type of incremental change that may be attempted. This is significant for understanding change in the institutionalization of information-gathering measures because of the balance of power of the negotiating parties. In the transitional space under examination, neither side had strong veto capabilities given the negotiating environment and the persistent potential to derail the process without agreement and concession. This is not to suggest that there were no attempts to push their own interests, but rather that the negotiation environment itself was constrained by the shared pursuit of a democratic dispensation, thereby making some degree of change more likely.
The value of the framing of conversion depends on the fact that the commission of inquiry was well-entrenched and “sticky” before and during South Africa’s transition. As will be explored in Chapters 6 and 7, the recurrent use of commissions of inquiry under Apartheid and the decision to adopt another commission to investigate violence during the transition demonstrate the persistence of the institution. In this case, the characteristics of conversion, the deployment of the same institutional rules but with sufficient ambiguity for actors to make adjustments, helps make sense of the emergence of a change-inducing commission of inquiry that remained housed in the existing institutional structures. Conversion helps to explain how the flexibility and opportunity in the opening of the transition were used to implement a familiar institution that was sufficiently malleable because of the changing environment. This opportunity was seized by Commission leadership in order to investigate ongoing violence. The effects of this gradual change are
evident in the Goldstone Commission’s mediating of the shortcomings of the commission of inquiry as an institutional practice.
In addition, once the Commission of Inquiry for the Prevention of Public Violence and Intimidation was deployed, the process of conversion continued to be identifiable in its operation. The Commission engaged other measures to change the way information gathering was carried out. As such, once established, the Commission underwent its own change variations; using the structures of the commission of inquiry to facilitate witness protection. Additionally, conversion is valuable in explaining how the institutions of indemnity and amnesty were used in different ways during the transitional period. As will be demonstrated in Chapter 9, the institution of amnesty itself did not change, but rather, was used by actors in different ways to achieve different ends. Thus, the persistence of indemnity/amnesty throughout the negotiations and through to the truth commission process presents, on the surface, as institutional continuity, but when unpacked, the justification for the use of this institutional modality suggests a gradual variation over time.