George MwaiA
2014-11-19, Issue 703
Transitional Justice seeks to enable societies to come to terms with
legacies of large-scale past abuse, in order to secure accountability, serve
justice and achieve reconciliation towards a future that is democratic and
free from violence, but its groundings and mechanisms are fraught with
multiple dilemmas.
It is not unusual to hear many activists, communities and the public in
general asking, what is this Transitional Justice? Where are we
transitioning from and to where? It might sound simple among advocates of
global justice but the questions demonstrate the ambiguity that this concept
has generated.
As a field of study and practice Transitional Justice is struggling to
gain feet politically and academically as multiple critics question its
glaring flaws and weaknesses to deal with past atrocities during repressive
regimes or civil conflicts.
Many countries such as Burundi, Rwanda, Kenya, Cote Divoire, Sudan, Central
Africa Republic, Mali, Libya and more recently South Sudan, to mention a
few, have faced many types of civil strife, wars and conflicts in the
post-colonial period. Many more conflicts are still ongoing in those
countries or have transformed to other types of conflicts.
As the global community has sought to intervene, various processes have been
suggested and fronted to realise justice for victims of individual and
collective violence, accountability for perpetrators of violence of human
rights violations, truth seeking, reparation for victims, reform of State
institutions and vetting of public officials to promote accountability.
These Transitional Justice processes have assumed that:
Realising an ideal of justice for those who are vulnerable and powerless
in society, transitional justice seeks to contribute to social coexistence
and democratic stability.
Breaking the cycle of impunity is necessary to prevent the recurrence of
similar widespread and systematic violations.
Dismantling or overhauling the structures that caused gross violations in
the first place is regarded as a prerequisite for judicial, security sector,
civil service and constitutional reforms.
Investigating, prosecuting and punishing perpetrators of mass atrocities
is a means of deterring similar minded individuals and groups.
Engaging in honest introspection about the past, through truth seeking, is
cathartic as it offers better prospects for the stability of a post-conflict
society than indifference and denial. It is also believed that societies
that confront their past are better off than those that do not.
The creation of well-functioning institutions through reforms and the rule
of law lead to a responsiveness by the State to the interests of the general
populace and the inclusion of the least powerful sections of society.
However, a critical evaluation of these assumptions and hypotheses has
proved otherwise. Various mechanisms such as truth seeking processes in
South Africa, Sierra Leone, Kenya, Mali and Cote DIvoire have demonstrated
their complexities in getting the truth as well as dealing with their other
diverse mandates such as reconciliation or justice.
In reference to criminal prosecutions for individuals with the greatest
responsibility in violence in Kenya, Democratic Republic of Congo, Sierra
Leone and Cote DIvoire, cases remain much politicised with few chances of
reconciling communities that were in conflict. Supporters of former
president Laurent Gbagbo in Cote Divoire have questioned why the other
parties to the conflict who were highly responsible for mass atrocities in
2010 have not been summoned also at the International Criminal Court.
Reparation for victims of atrocities in Kenya, South Africa and Cote
DIvoire have either been marred by corruption, mismanagement or empty
promises to individuals who struggle to rebuild their past. For example in
South Africa only a small number of those enlisted during the TRC process
have been compensated; nor have the survivors been fully consulted in the
Draft Regulations Relating to Community Reparations. Beyond publication in
the Government Gazette, the Government did not undertake any effort to
ensure that victims are made aware of and understand the regulations and
allowed less than three months for stakeholders to comment on the
regulations. Victims have remained victims forever with no urgency to
rebuild what they lost.
While Transitional Justice has sought to enable societies to come to terms
with legacies of large-scale past abuse, in order to secure accountability,
serve justice and achieve reconciliation towards a future that is democratic
and free from violence, many dilemmas have emerged along the way. One such
dilemma is the attempt to draw a demarcating line between victims and
perpetrators. The international humanitarian law has promoted the
crystallizing of the distinction between combatants and non-combatants,
between victims and perpetrators, between individual and collective
responsibilities, and between the architects of violations, the commanders
and rank-and-file executioners.
In many ways this process has failed to realise the complex dynamics of most
conflicts in Africa where combatants from conflicting communities have been
engaged in fighting and revenge attacks leading to mass loss of life and
property. In these scenarios it is quite difficult to define who is the
victim and who is the perpetrator. Transitioning in such contexts must
question whether only the law can assist such communities to move from
conflict to realizing sustainable peace. Additionally another question that
arises is, is prosecution of the perpetrators of crimes committed during the
conflict effective in fully creating cultures and structures that ensure
non-repetition of such conflicts? But more important in these conflict
spaces there are also spectators who sometimes take up positions to become
combatants or perpetrators.
If the truth seeking process is to be relied on in enabling communities make
progress in dealing with the atrocious past then serious rethinking of this
mechanism is needed. The South Africas Truth and Reconciliation Commission
(TRC) demonstrated one weakness during its operations. It assumed that
bringing together perpetrators to confess their crimes would lead to an
automatic reconciliation. This reconciliation has not been achieved to date,
reason being the commission failed to address core practices of apartheid
that created deep racial divisions in South African society for almost a
century, including the forced removal and displacement of millions of people
based on race and everyday policies and practices of apartheid. These, among
other challenges in the truth seeking processes, have not been useful in
informing countries such as Kenya, Mali and Cote DIvoire during their TRCs
conceptualization, clarification of mandate, investigation of what happened,
reporting and above all getting to the core of what caused violence and
conflicts.
The begging question now is, have all these commissions enabled these
African countries transition to the present and future their people would
like to live in? This is very doubtful. A classic example is in Kenya: the
Truth Justice and Reconciliation Commission elaborate report has not been
officially made public by the government as most of its top officials have
been adversely mentioned for numerous human rights violations. This means
that its recommendations, albeit weak, are yet to be implemented as several
court cases have been filed to stop the Attorney General from acting on the
recommendations.
Many analysts have roundly criticized the Cote DIvoire Commission on
Dialogue, Truth and Reconciliation (CDVR) as having done nothing to
reconcile warring sides in the conflict in the country. Its troubles started
with the legitimacy of its chairperson who has been highly accused by former
president Laurent Gbagbo as an ally of the current president, Allasanne
Ouattara. Moreover there has been a question around the period that was
being investigated as being very political. CDVR was mandated to document
abuses and causes of the decade-long crisis that followed the 1999 coup and
a 2002 army mutiny. This has failed to account for the many conflicts that
happened prior to that period which have shaped the current political
quagmire in Ivory Coast. Can transition really happen in such a scenario
where there is selective amnesia in the application of justice?
Interesting to observe in post-authoritarian transition, almost everyone
suffered from repression in many countries in Africa. But a dynamic that is
missing in the discussion about the past atrocities committed by
authoritarian leaders is their collaboration with the Northern and Eastern
governments in the training of State officials in torture or sale of
ammunitions or support to rebels groups of other countries. Proponents of
trial of despots in Africa have selectively failed to remember that they had
their allies abroad who dont deliberately feature in the accusations.
It is public knowledge that the massive atrocities committed by colonial
governments were egregious and gross violations of human rights. These
violations were systematic and deliberate. They were meant to suppress the
African people from dissenting against colonial rule. The effects have been
far reaching with the truth nowhere near documentation in many countries.
While there have been knee-jerk efforts to seek for the truths about the
crimes and atrocities when a conflict arises by African governments, they
have failed to think about the structural violence that has been created by
the historical injustices committed by the colonisers over five decades ago
and other early occupiers of Africa. Why is this past history deliberately
excluded from the radar of Transitional Justice?
One of the least popular mechanisms in Transitional Justice has been the
reform of State institutions from being repressive and corrupt to those
serving the citizenry and promoting integrity. These reforms have depended
on the political will and an active citizenry. In the case of Kenya while
there were deliberate recommendations on which institutions to reform such
as police, judiciary and the civil service, this has been proved an uphill
task. The ruling political elites have been adamant to spearhead radical
transformation of certain institutions that were responsible for gross human
rights violations. Some of the individuals who were involved in gross
violations during security operations are yet to be held accountable and
still remain in public office.
Civil Society groups and security analysts in Kenya have criticized the
police vetting process due to its repeated delays, lack of transparency and
failure to adequately engage the public. This process, which started in
November 2013 designed to check the professional background of every police
officer in Kenyas 78,000-strong force, has barely vetted 1,000 officers and
worries are that it may not be concluded by the set schedule of August
2015.The greatest puzzle in that is disturbing is how can there be reforms
of such institutions if the systems that give rise to corruption and abuse
of office are not dismantled? How can a transition occur if security
officers still live in deplorable situations that have dehumanised them?
Lastly, when the issue of conflict is mentioned in Africa there is always a
quick and narrow link with natural resource as a trigger. In part that could
be true but Transitional Justice discourse is mute on holding accountable
the multinational corporations that have financed the war economy with a lot
of interest in the outcome of the conflict. In the case of Congo these
opportunists have not been held accountable for their role leading to
violence against women, men and children. Do the victims of the decades of
conflicts have a chance to get justice through Transitional Justice in the
current dispensation?
The greatest worry is that countries that are going through conflict such as
South Sudan are leaning towards adopting the same Transitional Justice
models without much modification but where did Africas creativity and
ingenuity disappear?
In conclusion, I would argue that Transitional Justice processes if
implemented as given, would be clearly blind to the many dynamics and
contexts of African societies. While I would not like to be look like a
pessimist we need to consider a number of suggestions towards a
transformative Transitional Justice discourse and practice:
There need to move from over-prioritization of formal retributive justice
processes which have prolonged the recovery of post-conflict countries as it
sucks most resources and energy at the expense of other conflict
transformational strategies. It should not be assumed that prosecutions
fully serve as deterrent to commission of future crimes. Indeed societal
values that deter repetition of crimes are actually built on a proactive
education and education process rather than punishment.
It is important to appreciate that the current Transitional Justice
approaches are rooted on a neo-liberal hegemony that prioritises secularism.
This is far removed from the African worldview that harnesses faith and
communalism for people to recover. Transitional justice approaches should
refocus on the realities of most communities in Africa as well as their need
to recover.
Funding for Transitional Justice in Africa is heavily external. Africans
must transition from such bondage and fund its recovery from the past from
its natural and human resources endowed to them;
From a gender perspective there is need to question what exactly is a
transition and when does it occur as when violence stops in the public
domain it begins in the private spaces. Transitional Justice should
reconfigure gender relations by confronting hegemonic and violent
masculinity, which inform why violence occurs pre, during and after
conflicts. Mechanisms must be careful not to entrench pre-existing gender
hierarchies and discrimination;
Transitional Justice mechanisms must be careful not to re-victimise people
who have suffered from atrocities by failing to acknowledge their agency in
moving from their helpless situation to one that is forward despite their
adversities. Mechanisms should recognise the wide continuum of victims
needs before, during and after the conflict;
There cannot be a transitional from the past if we fail to question the
formation of African nations-states that has been one of the contributors of
structural violence that has been manifested in various ways in Africa and
Africa must be clear on the kind of relationships, structures and systems
we want to have in the current and in the future as we transition from our
past. This cannot be achieved in my view by the current or future
governments its the peoples movement for justice and transformation that
can shape this narrative and fight to have.
* George Mwai works with Fahamu Africa.
Thé Mulindwas Communication Group
"With Yoweri Museveni, Ssabassajja and Dr. Kiiza Besigye, Uganda is in
anarchy"
Kuungana Mulindwa Mawasiliano Kikundi
"Pamoja na Yoweri Museveni, Ssabassajja na Dk. Kiiza Besigye, Uganda ni
katika machafuko"
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