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Pambazuka News 703: Transitional justice in Africa: Knowledge, narratives and practice

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Pambazuka News (English edition): ISSN 1753-6839

CONTENTS: 1. Features



Features

Africa’s dilemma: Transitioning from where to where?

George Mwai

2014-11-19

http://pambazuka.net/en/category/features/93437


cc NH
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 D’ivoire, 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 D’Ivoire 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 D’Ivoire, cases remain much politicised with few chances of reconciling communities that were in conflict. Supporters of former president Laurent Gbagbo in Cote D’ivoire 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 D’Ivoire 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 Africa’s 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 D’Ivoire during their TRC’s 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 D’Ivoire 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 don’t 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 Kenya’s 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 Africa’s 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 it’s the people’s movement for justice and transformation that can shape this narrative and fight to have.

* George Mwai works with Fahamu Africa.

* THE VIEWS OF THE ABOVE ARTICLE ARE THOSE OF THE AUTHOR/S AND DO NOT NECESSARILY REFLECT THE VIEWS OF THE PAMBAZUKA NEWS EDITORIAL TEAM

* BROUGHT TO YOU BY PAMBAZUKA NEWS

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* Please send comments to editor[at]pambazuka[dot]org or comment online at Pambazuka News.


Beyond the TJ Industry: Transitional justice and changing international order

Adam Branch

2014-11-21

http://pambazuka.net/en/category/features/93440


cc Elisa Finocchiaro
The flashy branding of the transitional justice process as ‘TJ’ does more to keep oppressive systems in place than to bring real progress where it is needed. Transitional justice must be used as a catalyst to foment real, case-by-case systemic changes instead of as a one-size-fits-all neoliberal template.

The present collection on transitional justice represents an important corrective to the dominant trend within the field. In this collection, questions of natural resources, gender, international relations and structural violence are included as part of the discussion of transitional justice. This is contrary to the increasingly narrow scope that has come to characterize most discussions of transitional justice, especially in the West. In this dominant Western framework, transitional justice has been transformed from the justice associated with major regime transitions, in particular at the end of socialist or authoritarian states, to a set of policy tools that can be picked and chosen from by international interveners to bring about their desired objectives anywhere in the world. It has become a form of technocratic international governance, and in the process what was ‘transitional justice’ has become ‘TJ’. This TJ, promoted by a TJ industry, has risen to prominence on the back of post-Cold War US interventionism and global neoliberalism.

By turning transitional justice into TJ, into a catchy two-letter abbreviation, the TJ industry has erased the many different meanings and possibilities that are present in the words ‘transitional’ and ‘justice’. Both of these words are inherently open to all sorts of political possibilities and interpretations. Instead, we are presented with an abbreviation, a buzzword, whose meaning is entirely under the control of the industry that invented it and promotes it.

By erasing other possible understandings of transitional justice, the TJ industry has created a policy toolbox—the International Criminal Court (ICC), hybrid tribunals, Truth and Reconciliation Commissions (TRCs), national trials and so on—that are deployed universally wherever certain conditions are met. This focus on the constant fine-tuning of TJ tools, of technical means that can be applied to any situation anywhere in the world, leads to a certain blindness as alternative or different meanings or possibilities of the words ‘transitional’ or ‘justice’ are silenced.

What is left out by reducing transitional justice to TJ and restricting it to a neoliberal governance model? What areas are declared off-limits by the TJ industry?

First, TJ restricts justice to the steps that can be taken to deal with a discrete episode of violence from the past; it is thus blind to the mounting and generalized injustice of political and economic order today. TJ leaves out the economy—there can be no transition away from neoliberal capitalism, the TJ industry declares. Redistribution of private property or other policies that might be necessary to promote social or economic justice are deemed unacceptable—in fact, they may be condemned as human rights violations themselves. TJ ignores the international forces that are at work in sustained periods of political violence, and leaves unasked questions of neocolonialism or imperialism. TJ excludes alternative visions of the political order that should be the endpoint of transitions.

To be reminded of how restricted this TJ is, we must only look to the very recent past to see the very different meanings that ‘transition’ and ‘justice’ have possessed. Only a few decades ago, transitional justice could be seen as revolutionary justice, as the justice that is to be ushered in with an entirely new order, the justice of making the last first, as Fanon described. Or transitional justice can be understood as the justice of transitions to self-determination, the justice of the eradication of colonial rule, of the abolishment of exploitation or imperialism, of the radical redistribution of land or resources. Or it can be tied to global justice, the justice of transnational solidarity and internationalism. It may even possibly entail transitions away from neoliberal capitalism and the modern state themselves!

However, these alternative visions of transitional justice are ignored because they may not conform to liberal norms or to the respect for property rights. They are ignored because they will definitely not conform to the absolute respect for existing international power structures or the international economic order.

We see these international political and economic structures built into TJ itself: indeed, TJ in Africa is not sustainable, is not even possible, without donor funding. The ‘need’ for donor support is implicit within the TJ model. In contrast, the idea that funding from Western states or donors is necessary to bring about transitional justice in Africa would have been absurd a few decades ago—it would have been seen as a reactionary, neo-colonialist position. The idea that donor funding is necessary for an anti-colonial struggle was unthinkable; in this sense, TJ may be impossible without donor funding, but transitional justice may be impossible with donor funding.

Today, however, we are presented with a unique opportunity to think more broadly about transitional justice—to think about transitional justice beyond TJ. We have the opportunity to think not just about what is wrong with TJ as it currently exists, but rather to think about transitional justice as it does not exist at present, to think about the possibilities that have been closed off and that might be opened again.

This opportunity has arisen out of today’s novel world-historical transformation: the decline of Western global hegemony and the rise of other powers, in particular China. This changing international order presents an unprecedented opportunity for thinking about different possibilities of transitional justice. It allows us the space to imagine alternative political visions or paradigms that might inform alternative understandings of transitional justice.

However, it is up to us to seize this opportunity; we cannot sit back and simply assume that China’s rise and the West’s decline will automatically create new possibilities. This is because, at present, we are seeing a significant convergence between China and the West around common models for their engagement with Africa. For one thing, they both are focusing on state-centred stabilization. Both are working directly with states, building those states’ security capacities, whether as part of a development, Responsibility to Protect (R2P), counterinsurgency, counterterrorism or transitional justice agenda. Both the West and China are happy to provide massive military aid to Africa and to build militarized security states throughout the continent. My concern is that the differences between the Chinese and Western approaches to state building, stabilization, development—and TJ—may be a difference of degree, not of kind.

More importantly, however, there are certain fundamental issues that remain off-limits in discussions of both China’s and the West’s engagement with Africa, issues that need to be questioned if we are to go beyond TJ and re-think transitional justice itself. The neoliberal economy—even if it is state-guided capitalism—remains an article of faith, as does an uncompromising pro-capitalist orientation. Chinese and Western approaches remain top-down and elite-centred, with a focus on security for states and their elites. Neither proposes a fundamental reform of the state itself. Both ignore issues of class and of exploitation. Both have visions for rural reform based upon commercialization, often accompanied by massive land alienation and displacement. And finally, state repression is ignored—China disregards state repression as a policy, while the West selectively ignores repression of its allies in the War on Terror.

If this is true, then the rise of China and the decline of the West may reproduce the same narrowness that has plagued the TJ industry up until now. Even if China foots the bill for TJ activities, those activities would still be primarily technical, ignoring fundamental economic or political transformation, and divorced from questions of international power. A TJ ‘with Chinese characteristics’ would still look a lot like today’s TJ.

However, we cannot let the fact that China seems as fixated on state-centred stabilization as the West has been to lead us to lose this unique historical opportunity to re-think transitional justice. We should not let our imaginations of the future be restricted by the frameworks defined by the West in the period of post-Cold War neoliberal governance and US hegemony.

We have to start by seeing the transformations at work today as going far beyond a purported decline of the West and rise of China; we can’t let Western-created frameworks for conceptualizing the relation between Africa and the West determine how we think about African-Asian-Latin American relations today and the place of transitional justice within those relations. Instead, we should look around the world and seek out new visions of justice and new visions of political transitions that
are emerging. And indeed, there are new visions arising throughout the world—from the turn to the left of many Latin American governments to the upsurge of popular protest everywhere. These efforts to create transitions and forge justice are calling capitalism, the state and the neoliberal consensus themselves into question.

How might transitional justice be transformed through engaging with these visions of self-determination and sovereignty in social, cultural, political or economic spheres? What visions can be found in other global histories, not the self-aggrandizing Western history of the rise of human rights, but rather histories that have been silenced but are now being freed and remembered, histories that are identified with ideas such as Bandung, anti-colonial solidarity, non-alignment, Afro-Asian Solidarity, the Tricontinental? What histories of international social solidarity can provide the foundation for new visions upon which to base a transformed transitional justice: Asians fighting for African independence and against Apartheid, or Africans fighting against fascism in Europe? Transitional justice is a question, not an answer; it is a question that all who seek a transition away from the injustice of the present order can help try to answer.

*Adam Branch is Associate Professor of Political Science at San Diego State University. He can be reached at abranch2@mail.sdsu.edu

* THE VIEWS OF THE ABOVE ARTICLE ARE THOSE OF THE AUTHOR/S AND DO NOT NECESSARILY REFLECT THE VIEWS OF THE PAMBAZUKA NEWS EDITORIAL TEAM
* BROUGHT TO YOU BY PAMBAZUKA NEWS
* Please do not take Pambazuka for granted! Become a Friend of Pambazuka and make a donation NOW to help keep Pambazuka FREE and INDEPENDENT!
* Please send comments to editor[at]pambazuka[dot]org or comment online at Pambazuka News.


Transitional justice: Challenging contemporary knowledge, narratives and practice

Steve Ouma

2014-11-21

http://pambazuka.net/en/category/features/93441


cc DS
Transitional Justice has rarely taken into account all forms of oppression, economic discrimination, globalized injustice and a wider understanding of dignity and freedom. African societies need to theorize on transitional justice holistically in order to create social transformation.

The notion and practice of Transitional Justice is an undertaking at some sort of boundary, a borderline of some sort between ‘here’ and ‘there’. But it is not just any borderline, rather Transitional Justice is a borderline where law and politics confront each other after a historical moment where normative frameworks and social forces that regulate and protect co-existence have collapsed. At that moment, the entire human society – those with power and those who do not have it – experience a sense of precarity. Precarity in this moment is experienced through common insurability that is uncontained and threatens the very essence of humanity. The common agreement is at the moment of Transitional Justice which is often captured with the phrase ‘never again’. That is, the society (without hierarchies) declares that the kind of misery of violation, torture, humiliation, discrimination — the affective realm of human degradation that has been experienced must never be allowed to re-occur.

Because of the shame and existential threats which are often expressed in the moment of injustice from which the society desires to transit, the adoption of Transitional Justice is characterised with some sort of haste. This is because on one hand, Transitional Justice creates a ‘past’ and posits for a restorative future. It is a future that is neither based on victor’s justice nor vengeance. Rather, it is one of re-engaging and building human connectedness. The subjectivity expected by Transitional Justice is therefore something more than the ordinary everyday justice climate of legal decision-making and establishment of fair practices and just policies. It exceeds the limits of the existing legal architecture because the kind of horrendous violations for which responses are required have an overbearing presence that seems “larger than life” and beyond our control. In other words what is in question is the entire script of civic virtue and essence of human community.

With many possible explanations to the inhumane degrees of violence and atrocities that Transitional Justice attempts to reverse and forestall in future, the question is ‘what makes such inhumane degrees of violence and atrocities possible?’ remains open to public debate. There are numerous explanations some with roots traceable to Emile Durkheim’s [1] work on anomie and Simmel’s [2] ideas about the stranger. While most recent scholarship and social advocacy on the inhumane degrees of violence and atrocities have focused on a much detailed analysis that accounts for politics of the body, growing multiplicity, contingency, and apparent fungibility of the identities, the common bond in these strands of analysis seems to be social uncertainty about people, situations, events, norms, and even cosmologies. There are some works by philosophers, anthropologists and even law scholars who suggest that such uncertainties and possibilities to inflict inhumane degrees of violence and atrocities are marks of ‘primitivism’. Yet, the global spread of violence and atrocities cuts across race and time. The notable cases from Kenya’s 2007-8 post-elections violence, to Darfur in Sudan, Gulu in North Uganda, former Yugoslavia, Rwanda, Apartheid South Africa, and many others after the Holocaust under the Nazi Germany spread beyond the boundaries of the so called first and third worlds.

A more convincing explanation to the violence and atrocities that we have seen in these periods may be what anthropologist Arjun Appandurai has given as “…uncertainties has something to do with the forces of globalization — weakened states, refugees, economic deregulation, and systematic new forms of pauperization and criminalization” [3]. Yet, to my knowledge, there is very little attempt to deal with Justice and Social Reconstruction after violence and atrocities in a way that engages it as a local as well as a global problem. Right from the 1952 compensation treat for the Jews from the government of Germany, the extent and depth of Transitional Justice remain rather localized and dealt with as a momentary affair. This explains why the 1952 agreement above has had to be revised most recently [4].

To the contrary most works of scholars, as well as legal-political response in the period after violence, focus on how ethicized or racialized body has been injured as a theatre for the engagement of uncertainty. Of course it is strange that the Transitional Justice agreements and conversations are not holistic enough, yet the process of Transitional Justice is about story telling. Its normative assumption is usually that of movement from dictatorship to democracy or violence to peace or oppression to freedom or even discrimination to equity. Yet, while this sense of optimism is an expression of public discourse of departure from a dehumanizing past, it is often expressed without complete consensus on the end result of transition. The menu of institutions that are most used for Transitional Justice are as large and vary from International Tribunals, a powerful International Criminal Court (ICC), dozens of truth commissions, national/international hybrid courts to prosecute top human rights abusers and the application of universal jurisdiction to try former heads of states outside of their home country.

Using anecdotes of my encounters with the South Africa situation and reading of the contemporary political manifestations, I argue that Transitional Justice is an incompletely theorised agreement whose course is defined “when the drive is on”. While I am aware that the experiences of South Africa’s Truth and Reconciliation Commission (TRC) have already been critiqued and improved upon in places like Sierra Leone and East Timor I argue that in South Africa and many postcolonial economies, incompleteness in theorizing Transitional Justice now threatens to create a paralysis. Rather than pose the now emerging question, “is Transitional Justice really just?” [5], it seems to me that theoretical consensus should inform what a society regards as their idea of post-violence justice before embracing the now popular rhetoric of Transitional Justice.

In South Africa, the Truth and Reconciliation Commission (TRC) was adopted as a compromise mechanism for Transitional Justice. Established by the Promotion of National Unity and Reconciliation Act of 1995 (Unity Act), the task of the TRC was to investigate gross human rights violations perpetrated by both state actors and members of liberation movements between 1960 and 1994, the period of legalized apartheid. The TRC commenced operations in 1995 and published the first five volumes of its report in 1998. Much has been written about the TRC beyond these five volumes and the sixth volume published by the Amnesty Committee in 2003.

Yet, the most glaring critique and perhaps central question not just for TRC but the practice of Transitional Justice is a never ending debate in contemporary South Africa. Take the 2008 xenophobia violence for instance. The three first weeks of May 2008 are still clear in my mind when, as a resident of Cape Town at the time, I witnessed a proliferation of news and commentaries on what has been labelled xenophobia violence in South Africa. During this period, numerous of non-South African citizens labelled as ‘strangers’ and stereotyped as ‘Makwerekwere’ were evicted, some killed and their property looted. This wonton violence has no regard for the role that some of the so called strangers played in the struggle against apartheid and in building the ‘new South Africa’.

Underlying the May events are many scenarios and narratives of incomplete Transitional Justice. An in-depth look into South Africa reveals that there are in particular certain social contradictions that have not been adequately problematized not because no language of their eligibility exist, but because of the discomfort, unease and tension that is often raised when these realities get verbalized. One such phenomenon is the subject of income inequality. The mute response given to the subject of income inequality in South Africa has nothing to do with intelligibility, but more mundanely, it is what is there, but not ‘seen’ or more accurately, treated as an absence precisely because its presence disturbs the bonds of the “Rainbow Nation”.

At the time of the xenophobic attacks, the United Nations Development Programme (UNDP) released a report on South Africa’s progress towards attaining the Millennium Development Goals. The report documented that the Gini Coefficient without social grant stood at 0.59. Most importantly, the report stated that while the income of those in the poorest 10% had increased at an annual rate of 0.6% between 1993 and 2006 that of the richest 20% had increased at an annual average of rate of 72.5% within the same period. This disparity in the rate of improvement of income between the poor and the rich means that while income poverty declined between 1993-2006, inequalities increased.

The above scenario of inequality, raises the question of who is benefiting from the so called real GDP growth of 5%? To analyse this, a sneak review of the history of the current South African state would be an appropriate preface. At the end of apartheid, the South African government resolved to adopt a liberal economic model in a dual occurrence that has been referred to as the moment of ‘liberation and liberalization’. The thrust of the negotiations that resulted into this dual physique is well captured by the doyen of South Africa’s liberal Journalism Allister Sparks:

‘Before transferring power, the nationalist party wanted to emasculate it, it tried to negotiate a kind of swap, it would give up the right to run the country (political power) in exchange to the right to stop the blacks from running it in their own way’ [6]

The resulting state in the words of Prof. Ali Mazrui, was a compromise where the incoming black led government was to be in charge of the ‘crown’ ( instrument of the state) while the white minority would retain the ‘jewel’ (economic power). It is this division of control of the jewel and the crown that explains the various scenarios painted above the UNDP and Reserve Bank statistics. It attests that it is not only governments and institutions that discriminate, but the markets. Given freedom (as in South Africa), the market chooses who to reward and who not to, worst of, because its allocation is based on a historical framework, it tends to give the members of the dominant class, who already have, at the peril of the have-nots.

The central thing is that the whites feared that the Black majority would use state power to redistribute resources and reverse privileges. The condition for the transition was simple; the blacks would take the “crown” while the whites would have the “jewellery”. It is perhaps for this reason that Africa National Congress (ANC) adopted more minimalist, pro-business and conservative programme (summarized under the Reconstruction and Development Programme).

Yet, the discussions around the TRC, and South Africa’s Constitution after 1994 were coached in the language of Human Rights. We cannot therefore rule out the possibility that Human Rights may have been adopted because of its double edged nature. Human Rights protect the rights of all and this was the only discourse that was likely to protect the rights of the yester year’s privileged class. As ably put by Ibrahim Gassama;

‘Rights can be deployed to protect the powerful and the status quo just as easily as they can be wailed to advance the interest of the weak and the excluded. The power of this observation, should be increasingly apparent to rights activists in South Africa’[7]

I emphasise the link between Transitional Justice in South Africa and the emerging questions of social, political and economic inequality as an invitation to open our eyes to the fact that inequality is created by societies, international systems and governments. It is a result of policies, architect of the state and mechanisms that deny people opportunities to earn a decent living, discriminatory and exclusionary policies, victimisation of communities and inequitable distribution of resources.

Six years later, it was these same questions that had been raised in ‘three weeks of xenophobia’ that captured the campaigns at the third general elections after the end of apartheid rule. Only that this time, the questions are not just seen as a problem of foreigners - the ‘other’ who are presented as opportunistic makwerekwere on the South Africa success. Rather, the question is positioned as political question of social inequalities and powerlessness. Even though the debate is open on tactics and integrity credentials of the leaders of the Economic Freedom Fighters Party (EFF), Julius Malema, it is these questions that earned him votes. Indeed after the May 7 General election, ANC went back to parliament with a reduced majority from 65.9% in 2000 to 62.15%. It is EFF which was only 8 months old at the time of elections that caused most of the erosion on ANC after bagging 6.35% of the total tally. The much larger opposition party Democratic Alliance, also increased its share of votes from the 2000 elections results of 16.7% to 22.23%.

While there are numerous factors that account for these changes in voting patterns, one must remember that just like the notion of Transitional Justice, elections are often part and parcel of mechanism through which citizens express their will of justice. The questions raised in the May 2014 elections pointed at the persistence of the yester year’s social structure. These are structures which even the Black Economic Empowerment (BEE) or the version innovated by some companies and branded as Expanded Black Economic Empowerment (EBEE), has been unable to deal with. They are structures that were designed and entrenched by the apartheid state and therefore present form of what ought to be past injustice.

The question that face us here is whether there was complete theorization and indeed an agreement of the South Africa society that accords dignity and freedom for all after the ‘transitional period is over’. With the democratic government now well in place, it seems to me that the limit of the Transitional Justice mechanism as practiced in South Africa lies in the very fact that they were not completely theorised. The questions raised in the 2014 election and the everyday life of the ordinary South African tends to suggest that the central question of dignity and meaning of freedom were not attended to in South Africa’s TRC process. More so, there is no evidence that the question of ‘jewel’ and ‘crown’ raised by Ali Mazrui had any response. Similarly the language of what is justice after apartheid seems to be left open and little is being done to gain consensus.

As the notion and practice of Transitional Justice loses its organic purpose to become some mere transferable template, it is a return to more theorization that has potential to guide us in creating the necessary link between the global and local visions of justice for societies that resolve to move from ‘here’ to ‘there’. In such reflections more detailed questions such as: Who is the subject of justice, Whose justice, What should be done with a recent history full of victims, perpetrators, secretly buried bodies, pervasive fear, and official denial? Should this past be exhumed, preserved, acknowledged and apologized for? How can a nation of enemies be reunited, former opponents reconciled in the context of such a violent history and often bitter, festering wounds? What should be done with hundreds or thousands of perpetrators still walking free? And how can a new government prevent such atrocities from being repeated in the future? And how about the collaborative and residual structural forces like economic structure and knowledge economy?

To guide us in complete theorisation of Transitional Justice, I suggest that we deploy the reflections of feminist anthropologist Judith Butler in Frames of War [8] . Butler has suggested that discussions and conclusions on the acceptable model of developing and pursuing Transitional Justice should be guided by the Ethics of precarity. In my rendition of ethics of precarity, I am making reference to the logic that we owe our every existence to the other. This means ‘as Judith Butler has said, that we are irrevocably responsible for the other - from the perspective of psychoanalysis, the other dwells within the self through the unconscious, through repetition, compulsion and even through bodily drives in ways that render us constitutionally incomplete, disoriented, out-of-joint and driven by alterity. Thus the process after conflict or violence [which is usually an intensive othering process] is about rediscovery and reconstitution of self - this is what Transitional Justice should do. Ultimately Transitional Justice is to rethink the complex and fragile character of social bonds and to consider what conditions might make violence less possible, all life is equally grievable and hence more liveable.

If the central objective of Human Rights - human dignity - gets deployed from this idea of attaining a society where all life is equally grievable and hence more liveable, then Transitional Justice shall become a completely theorized agreement. For in that meaning, no one would be a ‘stranger’ and forestalling xenophobia and inequality would become objectives of Transitional Justice project in a context such as that of South Africa. Equally, the haste to move from ‘here’ to ‘there’ would be layered with more detailed questions of subjectivity, social inequality and powerlessness. At any rate objects of analysis do not occur as natural phenomenon the way Transitional Justice mechanisms like Truth Commissions tend to assume. Rather, they are partly constructed by the discourse that describes them. The more natural the object appears, the less obvious this discursive construction will be. When incompletely theorised, the Transitional Justice mechanism has tended to take too much of its expected outcome for granted and thus missing the goal of social transformation. You just need to be a student of South Africa 10 years after the Truth Commissions as I have done above to realize that Transitional Justice as practiced and implemented in our times has not delivered dignity and freedom for all.

* Dr. Steve Ouma Akoth is an anthropologist currently undertaking extended fieldwork in Kenya. This article was part of a presentation made during a conference on transitional justice in Africa convened in Kampala, Uganda by, FAHAMU and the Refugee Law Project

END NOTES

[1] Durkheim, Emile. 1951. Suicide: A Study in Sociology. Glencoe, Ill.: Free Press.
[2] Simmel, Georg. 1950. “The Stranger.” In The Sociology of Georg Simmel. Trans.and ed. [3] Kurt H. Wolff, 402 – 408. Glencoe, Ill.: Free Press.
[4] Arjun Appandurai. 1998 “Dead Certainty: Ethnic Violence in the Era of Globalization,” Public Culture, Winter, 10:2.
[5] See The Times of Israel “Germany increases reparations for Holocaust survivors” November 16, 2012
[6] See Call, Charles. 2004. “Is Transitional Justice Really Just?” Brown Journal of World Affairs, 11(1): 101-113.
[7] (Observer,18.9.92).
[8] Makau, Mutua, 2002. Human Rights: A Political and Cultural Critique. Philadelphia: University of Pennsylvania Press.

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Exploring transitional (and other kinds of) justice in Zimbabwe

Shannon Morreira

2014-11-21

http://pambazuka.net/en/category/features/93438


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The debate around how to deal with Zimbabwe’s violent past is currently dominated by the transitional justice model and the human rights discourse which accompanies it. But an analysis of the country’s history as well as its present moment presents different ways of considering ideas of justice and healing – ways that may be better suited to Zimbabwe’s particular circumstances.

Whether or not the Southern African state of Zimbabwe can be said to be in a process of ‘transition’ is debatable. Although the three main political parties in the country signed a Global Political Agreement in 2008 as a means of bringing about political transition, few of the provisions of the GPA have been adhered to, and when the country held its first post-GPA elections in 2013, the incumbent president, Robert Mugabe, was re-elected, and his political party, ZANU(PF), won a two thirds majority amidst the usual Zimbabwean controversies and accusations of electoral fraud. In many ways, the 2013 election returned the country to pre-GPA arrangements of power, albeit with a new constitution, and at present, most of the talk around politics in Zimbabwe concerns the succession battle within ZANU(PF), rather than a broader transition. In some ways, then, the Zimbabwean transition can be said to be stalled. Even given this set of circumstances, however, the language of transitional justice can still be heard, and some of its mechanisms can still be seen in contemporary Zimbabwe. Is such a framework a useful one, and what can be learned from the ways in which Zimbabweans have been imagining transitional (and other forms) of justice throughout our recent turbulent history? As a Zimbabwean anthropologist interested in forms of justice, this is a question I began to examine in 2010.

The field of transitional justice is relatively new, historically speaking, in that it is a little over twenty years old – but it has quickly gained international prominence such that it has come to be normalised as the form of intervention that occurs following political oppression or violence. Transitional justice relies upon a redemptive model based upon an assumed relationship between the truth, narrative, and (national as well as individual) healing. Transitional justice also uses a linear model of time, in which it is seen as necessary to repair the harms of the past in order to move into a non-violent and democratic future. It thus has political, legal and symbolic dimensions. The aims of transitional justice are usually implemented through a set of legal and restorative mechanisms, such as free and fair elections, truth commissions, prosecutions of war crimes, public memorials, and acts of reparation. The best known case within Southern Africa is the Truth and Reconciliation Commission (TRC), used in South Africa from 1996, which provided individual amnesty for political crimes on the basis of ‘full disclosure’ whilst also assuming that national healing would follow from the process of truth-telling.

Why might Zimbabwe need a process of national justice? Viewed from a distance, the Zimbabwean legal system appears to protect citizens’ rights and uphold the rule of law. In reality, however, the country’s legal architecture has progressively been altered and disregarded over the last decade. In Zimbabwe, partial application of the law, particularly as regards political violence, has occurred in a context where widespread political violence has marked the (colonial and postcolonial) state. Throughout my time as an anthropologist working in Zimbabwe, this has been described to me as the rise of ‘a culture of impunity’ in Zimbabwe, terminology which is drawn from the globally circulating languages of rights and transitional justice. Lack of justice for widespread violence is not new in Zimbabwe: conversations I have had about unresolved political crimes bring up incidents stretching beyond living memory through to the present – from the hanging of Mbuya Nehanda in 1898, through the liberation war in the 1970s and Gukurahundi in the 1980s, to the very violent 2008 elections. In such a context, where transition is stalled and legal impunity still present, what might transitional justice look like? In this article I reflect on the ways in which the state and non-governmental organisations have drawn on international ideas of transitional justice in imagining national healing in contemporary Zimbabwe, and some of the problems associated with this.

Let us begin with the state: when the Global Political Agreement was signed in 2008, Article VII provided for a mechanism ‘to advise on what measures might be necessary and practicable to achieving national healing, cohesion and unity'. The Organ on National Healing, Reconciliation and Integration (ONHRI) resulted from this provision. The ONHRI is modelled on ideas of transitional justice: although not a legal mechanism, it aims to find ways to foster peace through national healing. The global symbolic capital of transitional justice is such that it tends to be presented as the ‘obvious’ response to political conflict. This was also the case in Zimbabwe during the GPA period, when the great majority of people to whom I spoke about the country’s future (ranging from political actors, civil servants and members of civil society, who carried some political power, to street vendors, teachers, and the unemployed, who carried little) were clear that there was a need for a response modelled upon transitional justice mechanisms, although they didn’t see the ONHRI as providing it. ‘We need a TRC here’, ‘we need to hear the truth like in South Africa but we must also prosecute’; ‘we cannot let amnesty occur without some sort of reparation’; ‘there is no justice without accountability of politicians’ and, ‘we will need special commissions for women because they have experienced violence differently’, are just some of the comments made to me. But is a legal process of transitional justice, or even a non-legal process such as that being implemented by the ONHRI, really a good option for Zimbabwe, particularly at present?

To answer that question, it is necessary to explore the past. In the Zimbabwean context, reconciliation as it is imagined through the discourses and processes of rights-based transitional justice is only one quite recent arm of a longer history of ideas of justice and reconciliation. Reconciliation on a national scale previously surfaced following the end of the liberation war, or Second Chimurenga. An alternative genealogy of ideas of national reconciliation in Zimbabwe could thus take as its starting point President Robert Mugabe’s address to the nation on the eve of Independence in 1980. Unlike transitional justice discourse, which lays an emphasis upon bringing the violations of the past into the public eye, in this speech on the 17th of April 1980, Mugabe advocated starting anew, without carrying over memories from the past:

‘Independence will bestow on us a new personality, a new sovereignty, a new future and perspective, and indeed a new history and a new past. Tomorrow we are being born again; born again not as individuals but collectively as a people, nay, as a viable nation of Zimbabweans. Tomorrow is thus our birthday, the birth of a great Zimbabwe, and the birth of its nation.’

‘Tomorrow we shall cease to be men and women of the past and become men and women of the future. It’s tomorrow then, not yesterday, which bears our destiny.’

‘As we become a new people we are called to be constructive, progressive and forever forward looking, for we cannot afford to be men of yesterday, backward-looking, retrogressive and destructive. Our new nation requires of every one of us to be a new man, with a new mind, a new heart and a new spirit.’

In this philosophy, the happenings of the past do not belong in the present or in the future; unlike in ideas of transitional justice, the past should not be brought to light but should be forgotten or left behind. There is a different imagining of time, truth and healing at work here than in transitional justice models. The insistence of Zimbabweans that a process of national justice, based upon international models, should take place should be viewed in light of this earlier branch in Zimbabwe’s post-conflict reconciliation lineage. This is primarily because, in the ensuing years, Mugabe’s insistence upon forgetting the past did not unfold as neatly as it was presented in his independence speech. Rather, the politics of remembrance and forgetting have been deeply politicised and strategic in Zimbabwe. By 2000, for example, Zanu(PF) revived and publicised the atrocities of the Rhodesian past for political ends, in order to justify the illegal occupation of commercial farmland; whilst simultaneously refusing to acknowledge the atrocities committed by the (state sponsored) Fifth Brigade in Matabeleland and the Midlands in the 1980s. Forgetting was not as clean cut as it was presented to be.

Unlike Mugabe’s earlier model, then, the ONHRI takes as its starting point the viewpoints of transitional justice discourses as outlined above. To date, however, the ONHRI has had limited success. This may be because there was no clear legal mandate within the GPA as to how the ONHRI was to be constituted, or what its precise functions were. It may also be because of the political infighting that paralyses much of Zimbabwean politics. The political will (and attendant economic impetus) behind the ONHRI was limited: from 2008 onward, the Inclusive Government was faced with enormous socioeconomic and political challenges, and as such the more immediately pragmatic issues (such as rebuilding industry and the healthcare sector) were given priority, whilst processes of ‘national healing’ fell by the wayside. Although Zimbabwe was perceived as ‘in transition’ once the GPA was signed in 2008, it was unclear even then what the country was transitioning to; a process made even less clear with the changes that came about in the country following the last elections.

The particular set of historical circumstances at play in Zimbabwe, then, which has maintained at the very least a façade of democracy since independence, ensures that the country fits uneasily within the conventional transitional justice paradigm which imagines transition to a democratic state. Technically, after all, (in law if not fact) Zimbabwe has been a democratic state from 1980. Nonetheless, state-based interventions have done little so far to challenge the erosion of the rule of law and the rise of impunity for political crimes, and to put into practice any actions towards the goals of ‘national healing, cohesion and unity’.

In the absence of state-based processes of justice and reparation, it is unsurprising that local NGOs have made attempts to fill the gap. As with state-based responses, this has also occurred in the context of the effects of Mugabe’s assertion in 1980 that remembering can be ‘retrogressive and destructive’. In Zimbabwean politics since 1980 the tendency has been for violence to be disregarded. Yet, ‘There is a line between forgetting, and silencing’, the director of a local NGO told me – ‘and what has occurred in Zimbabwe is silencing’. In contrast to Mugabe’s 1980 avocation of forgetting, then, NGOs and civil society have emphasized the necessity for truth-telling and (legal) accountability. NGOs have only been able to implement recommendations and do research into the ways in which people would like to see transitional justice occur, however, as they have neither the political power nor the reach to implement such mechanisms. Research conducted by the Harare–based Research and Advocacy Unit shows, for example, that Zimbabwean women would like to see a process of legal accountability be put in place for the violences of the 2008 election, including, where necessary, compensation for the multiple physical and monetary harms inflicted. Such research has also shown, however, some of the complexities of trying to implement transitional justice based ideas of truth-telling.

What are some of these complexities, and why might transitional justice as propagated in the global North not be as successful in Southern Africa as people might wish? One answer might be to do with weaknesses within the transitional justice model itself, regardless of where it is implemented. When I sat in on some focus groups in Harare aimed at exploring kinds of justice, for example, the notion of truth (in Shona, chokwadi) emerged as central. For transitional justice, truth initially refers to establishing facts and chronologies of events. In answer to the first question asked of truth-telling in focus groups (do we need to tell the truth in Zimbabwe?), respondents invariably answered ‘yes’. What does it mean ‘to tell the truth’, however? In Shona, chokwadi translates as both truth and as certainty; therefore a question which asks, in Shona, if there is a need for truth about violence in Zimbabwe is also asking if there is a need for certainty around the events of the past. On the one hand, this maps well onto transitional justice discourses which, being rooted in the law, are concerned with establishing a certain, authoritative version of events. On the other hand, though, it raises a weakness within transitional justice. Michael Ignatieff has criticized transitional justice for the way in which it tends to confuse factual truth – what happened when – with moral truth – why a thing happened and who is responsible for it. Chokwadi as used in focus groups could be seen to be in keeping with this. But, as the TRC in South Africa showed, processes of truth-making are imbued with power. Whose truth is it, anyway? In (non)transitioning Zimbabwe, the state has a history of using discourses of democracy and rights to protect its own interests rather than the interests of its citizens, such as through the endless stream of controversial elections to establish democratic legitimacy, or in the recent performance of Constitution-writing which saw a very flawed Constitution emerge at the end of a long and costly process. In such a context, questions about who establishes the truth of transition really matter, particularly where strategies of maintaining power have simplified and rewritten history. Whilst Zimbabweans want a moral chokwadi to be established, it is unlikely whether any national mechanism could in reality do such a thing. Furthermore, transitional justice links a moral truth-telling to ideas of forgiveness and, through this, to healing and reconciliation on a national scale. Does this actually occur? The lack of meaningful transformation and reconciliation in neighbouring post-apartheid South Africa suggests that such a model is flawed.

This then is one answer to the question of why transitional justice as propagated in the global North might not be as successful in Southern Africa as people might wish. A second answer, however, might lie not within the discourse itself, but in the way in which it is assumed to be equally applicable across multiple settings. For example, transitional justice draws upon a linear model of time where the violence of the past is seen to inform the present, causing trauma that can be ‘fixed’ by a process of national healing, through truth-telling, and/or justice. One aim of reconciliation, then, is to prevent the interference of the past in the present – to leave the past behind and move on, healed. But Southern African anthropologists (and, of course, most Southern Africans ourselves) have long known that a linear model of time, while of course used in some contexts, is not the only way in which time works. Consider, for a moment, the role of the ancestors. In a Western model of time, the ancestors are people out of place: the dead should remain dead in such a model, and not interfere in the present. In much of Africa, this is simply not the case. The ancestors are very much alive in the present, for all that they once lived as people in the past. The social theorist, Achille Mbembe, thus argues that time in postcolonial Africa is not experienced as linear, but is better conceived of as entangled, with multiple durees overlapping in any one moment. In such a model, it is not anomalous for the past to intrude into the present, and where it does, it should not necessarily be ‘healed’. It is just part of life. In Shona and Ndebele cosmologies, discontinuities and reversals are given more emphasis than in transitional justice discourse. In this reading of time, the past, the future and the present often operate simultaneously, and it is not seen as ‘out of place’ for the ‘past’ to exist in the ‘present’. Time is not necessarily or inevitably differentiated in everyday life. In such a context, the linear model of time that transitional justice draws upon might not be useful, or even appropriate, as a means of healing trauma.

In answer then to the question above as to whether large-scale transitional justice is a good option for Zimbabwe at present, the answer would seem to be that any attempts at state-based transitional justice need to better imagined than they have been thus far, in order to take into account the ways in which Zimbabweans inhabit the social world. Silencing or forgetting the violences of the past will not be useful: but nor will utilising models of remembering that are not appropriate to the Zimbabwean context. Neither Mugabe’s model of strategic forgetting, nor the transitional justice model of establishing a moral truth, are wholly apposite. Some local organisations are taking into account local cosmologies and power imbalances in the work they do toward processes of smaller-scale healing and justice. The local NGO The Tree of Life, for example, works closely with communities who have experienced violence. Their model draws widely upon a variety of local repertoires of social and individual healing, with an aim to rebuild social relationships rather than to rebuild ‘the nation’. It may well be that such smaller-scale, more locally relevant processes, are a much more effective model than that provided by more conventional transitional justice mechanisms.

* Dr Shannon Morreira is a Zimbabwean anthropologist based at the University of Cape Town.

* THE VIEWS OF THE ABOVE ARTICLE ARE THOSE OF THE AUTHOR/S AND DO NOT NECESSARILY REFLECT THE VIEWS OF THE PAMBAZUKA NEWS EDITORIAL TEAM

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The transitional justice process in Kenya: Unfinished business?

Magara Ibrahim Sakawa

2014-11-21

http://pambazuka.net/en/category/features/93439


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Kenya’s transitional justice processes have been crudely politicized to protect the interests of the powerful. The country typifies the dilemma that plagues most African countries today. While most of the regimes are beginning to acknowledge that there have been atrocities, human rights abuses and various forms of injustice, they simultanesouly appear to be perplexed by the demands for peace and justice.

INTRODUCTION

Kenya has a history of human rights violations, injustices and marginalization. Unfortunately, the perpetrator of the majority of these abuses has been the state. In this regard, transitional justice measures in Kenya are not a mere option, but are in fact necessary towards a bold confrontation of past wrongs and a sign of determination in the long journey towards nation building. While transitional justice mechanisms have been activated in Kenya, it will be argued here that the initial planning of transitional justice measures was thwarted by the fluid and erratic domestic politics which resulted in haphazard timing, sequencing and coordination of difficult activities. This article aims to provoke a serious debate about and around Kenya’s transitional justice process and prospects for the future both, in terms of addressing the past, and ensuring national healing and cohesion.

BACKGROUND TO KENYA’S TRANSITIONAL JUSTICE PROCESS

The path leading to the formation of the Truth, Justice and Reconciliation Commission (TJRC) and the International Criminal Court (ICC) demonstrates Kenya’s checkered political history. Unfortunately, while the formation of the TJRC demonstrated a vigorous attempt to move towards peaceful co-existence, such hopes seem to have been short-lived (Musila, 2009). Already in 2003, the task force led by Makau Mutua found that Kenya needed a TJRC in order to: investigate fairly and systematically the mistakes and atrocities of the past, hold perpetrators accountable, recognize victims and restore their dignity, assess how the state has performed, open discussion and, confront the past. Unfortunately, it was not until a combination of the political crisis of 2007-8, and international mediation that the TJRC was formed. Among the issues which led to the establishment of the TJRC was the concern that since independence, there have been gross human rights, violations, abuse of power, and misuse of public office. There also existed a worry that some of the violations could not be effectively addressed by the courts due to difficult procedures and other hindrances such as a lack of public trust (NPI-Africa & WANEP, 2010b, p. 11).

Apart from the institutional reforms envisioned in the constitution of Kenya (2010), the other major transitional justice mechanisms that have since been activated in Kenya are the truth telling and accountability through the TJRC and the ICC respectively. These two mechanisms should have worked together to render justice to victims of past atrocities. Unfortunately the TJRC Act does not promote or provide any relationship between the TJRC and the ICC (NPI-Africa & WANEP, 2010a, p. 5). This lack of attention in the Act has been one of the key challenges in harmonizing major transitional justice mechanisms in Kenya.

THE TRUTH JUSTICE AND RECONCILIATION COMMISSION (TJRC)

The TJRC was established upon the recommendations of the panel of eminent African personalities that mediated Kenya’s political crisis following the 2007-8 post-election violence. The TJRC was made into law through an Act of Parliament in October 2008 and became fully operational in 2009 upon the swearing in of its commissioners. The commission was armed with the mandate to investigate human rights violations that occurred between December 12, 1963 – when Kenya gained its independence – and February 28, 2008 – when a power sharing agreement was finalized, thus ushering in the grand coalition government. The TJRC mandate included establishing a record of violations of human rights and international humanitarian law and their causes, and determining those responsible for such violations. This stretched to recommending prosecutions and “determining ways and means of redress for victims” (Parliament of Kenya, 2008).

The International Center for Transitional Justice (ICTJ, 2012) reports that, through the Truth Justice and Reconciliation Commission (TJRC), for the first time in Kenya’s history, victims have had a chance to express their opinions on the direction of the country’s unfolding transitional justice process. Political machinations have since dimmed such freedoms.

The TJRC has faced major challenges from its inception. Key elements of the government have on various occasions argued that Kenya should have followed the example of South Africa and prioritized reconciliation over retribution. In other words, the TJRC should be a substitute, rather than a supplement, to a criminal justice process. In general, decision-makers’ support for the TJRC was inspired by narrow interests, such as shielding from justice members of the self-same political elites (Hansen, 2013).

According to Hansen (2013), the same political factors have come into play when looking at the reaction and level of acceptance of the TJRC and its report. These considerations are relevant when attempting to comprehend why a local accountability mechanism is yet to be constituted. This partly explains why the debate about political accountability is still elusive in Kenya. There is a perceivable frame conceptualized and propagated by the political elite aiming at creating unprecedented dichotomy between local and international justice rather than both. The TJRC had a very difficult task in trying to establish an accurate record of past injustices and encouraging reconciliation amongst the ethnically polarised Kenyan society. According to the study by Robins (2011), the TJRC process was paralysed by legitimacy challenges which were capitalised on by some state officials who hampered the peace making initiatives by exacerbating ethnic tensions.

On the positive side, the truth telling process has contributed to easing tensions amongst communities. Of equal importance is that the TJRC process was the first time that a state institution in Kenya has properly acknowledged the gravity of suffering experienced by victims as a result of state impunity, and political impotence to tackle human and economic rights violations (TJRC, 2013). However, a lot is still left to be desired since the TJRC report, just like many other commissions’ reports, has been ‘left to rot’. It will require a concerted long-term effort to achieve the goals of justice and reconciliation and in this respect, the long-term impact of the commission remains to be seen.

According to many scholars and practitioners, one of the main challenges to the TJRC is that its mandate was too large. This made it difficult for the commission to meet its objectives and fulfil its functions within the timeframe and budget (Brown, 2011; Gona, 2010; Harbeson; 2012, p. 27). The time span to be investigated stretched from 1963 to 2008. This is too long a time period (Karanja, 2010, p. 191). Conversely, some critics argue that the seed of systematic abuses were sown during pre-independence period and, by excluding that period from investigation, the TJRC could not get into the bottom of the issues indicated in its mandate (Rutto, 2009).
The wide range of issues expected to be investigated by the TJRC could not allow for serious and conclusive investigations. For example, Amnesty International (2008, p. 10) in assessing the TJRC Bill, assert that “an excessively broad mandate could divert its attention from human rights violations.” In addition, the TJRC duplicated other commissions’ work and was greatly undermined by politics. According to Kisiangani (2008, p. 55), the commission is charged not on its own ability to conduct the hearings and make recommendations but on whether and how the proposed measures are implemented. Although the TJRC’s recommendations are yet to be implemented, it is possible to assess how the powers invested in the TJRC will impact on the process of transition (Kisiangani, 2008, p. 55).

The TJRC Act containsa number of problematic clauses. ItIt states, for example, that the TJRC will make recommendations for amnesty to the Attorney General (AG). The potential for such recommendations overlap, and interfere, with the AG’s constitutional mandate. It is not expressly clear whether the AG can drop prosecutions or ignore the TJRC recommendations altogether (Wainaina, 2009). In addition, the conditions under which amnesty can be granted are largely obscured, thus granting a clear loophole for political manipulation (Wainaina, 2009). It seems that the process of reparations for the victims is confused and unclear. As Amnesty International (2008, p. 9) reports “the law does not include all five forms of reparation to victims, namely: restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition.” This failure of the TJRC Act to ensure the victim’s right to receive compensation for the damages from identified wrongdoers leaves the recommendations for amnesty as a mechanism for transitional justice in Kenya, in a very awkward position.

The biggest problem in the TJRC act is that it creates a barrier to cooperation with other judicial bodies by refusing to share the content of the perpetrators’ confessions. This makes it harder for other, government and non-government, bodies to pursue reparations. . ,

The importance of truth commissions in the wider process of transitional justice cannot be underestimated. It is integral for the success of the commission that is it led by prominent persons with moral authority. This legitimises the findings and outcomes. In this regard, South Africa and Kenya reflect two sharp contrasts. It is clear that TJRC did not have a personality like South Africa’s Desmond Tutu (Gona, 2010, p. 232). Besides, the controversies surrounding the chairperson of the TJRC, Bethwel Kiplagat, negatively impacted on the commission’s work, reduced its credibility and stirred renewed doubts to the genuineness of Kenya’s truth-seeking process (Grombir, 2012).

The political landscape in Kenya had a large impact on the formation, and implementation of the TJRC. As Musila (2009, p. 464) argues, when there is a broad coalition largely drawn from former foes, and when the pro-status quo group outmatches the reformist and pro-democratic forces, the weaknesses witnessed in the TJRC are always likely to occur.

The truth commission was designed as of instrumental value. The TJRC was designed asa means to explore, and put aside Kenya’s historical injustices and human rights violations (Wainaina, 2009). If this is the case, then the TJRC should form a stepping stone, used to inform other mechanisms of transitional justice in Kenya.

THE INTERNATIONAL CRIMINAL COURT PROCESS

Criminal prosecutions are one of the most frequently used responses to matters of accountability for past violations of human rights. Most scholars are in agreement that trials should be an initial and leading mechanism in post-conflict reconstruction endeavours (Arthur, 2011, p. 296; Sarkin, 2011; Grombir, 2012). Trials act to demarcate “the shift from illegitimate to legitimate rule” (Teitel, 2003, p. 7) and thus draw a thick line between the past, and the present. Asaala (2010) opines that making a clear break with the past requires punishing the crimes committed by previous regimes and introducing new rules, which provide for deterrence of future violations, and helps to rebuild confidence in the capacity of state institutions.

Upon the finalization of the national accord that saw the formation of the grand coalition government established in March 2008, Kenya entered an important phase in its post-colonial history. This moment afforded a rare opportunity for Kenya to face its past and shape its future through transitional justice processes. The Panel of Eminent African Personalities that mediated the Kenyan political crisis, and led by (former UN Secretary General) Kofi Annan, recommended that Kenya should address the historical injustices that were seen as a leading cause for the post-election violence (Kegoro, 2013).

In addition to the formation of the TJRC, Kenya was expected to form a tribunal which would process the criminal activities of the high and mid-level criminal offenses , while the, then yet to be reformed, judiciary was to focus on low level crime. Unfortunately, efforts to create such a tribunal did not succeed. The ICC were thus forced to intervene.

The ICC has greatly shaped the political land scape of Kenya. Many experts have argued the ascendance to power of the ICC was, in part, due to the cases facing Uhuru Kenyatta, the current president, and his deputy William Ruto(Mue, 2013). Since Mr. Kenyatta and Mr. Ruto came to power their cases have been elevated into the regional level. This is because, in keeping with the Rome Statute, the ICC can investigate if, and only if, the state itself is unwilling or unable to do so.. Indeed the ICC intervention in Kenya and the current debate around the Kenyan cases is a prototype of the battle between global forces and local dynamics, a battle whose fate is a subject of much speculation.

While the fate of the Kenya cases in the ICC remains unknown, it is important to note that the ICC has delivered a very limited number of prosecutions.It is often credited for its power as a deterent (Grono & O’Brien, 2008, p. 14). In Sudan for example,the indictment of the state officials including the president and the imposition of the travel ban has succesfully restricted the international movement of the accused. Also, the threat of prosecution from the ICC helped to bring Uganda’s LRA leader Joseph Kony to the negotiating table in 2004 (Grono & O’Brien, 2008, pp. 15-16). Despite these successes, the court has come under sharp criticism and has been accused of being a white man’s tool of oppression targeting Africans and Africa (Gathii, 2011, p. 5). This is a major debate currently underway in Africa especially following the Kenyan cases in The Hague.

The debate concerning domestic and international solutions to local problems is also linked to questions of national sovereignty. In the case of Kenya, the local problems include impunity and lack of accountability. In both cases, Kenyan politics largely shapes the processes (Branch, 2011). According to Musila (2009, p. 459), while the victims are longing for justice, the political elite are keen to plot a route which contains the least threats to their political interests. In this regard, Warigi (2011) argues that the Kenyan cases in the ICC have taken on a political dimension rather than purely seeking justice for the perpetrators and victims. This is highly regrettable but perhaps reflects wider problems with the (unelected) ICC’s legitimacy at a global level.

While the ICC may be subject to international and regional manipulation, it does seem true that it has so far proved to be the only mechanism defying domestic political manipulation (Hansen, 2013).. On the one hand, it is evident that the shadow of the ICC has been an important factor shaping Kenya’s transitional justice process (Sriram & Brown, 2012; Grombir, 2012). On the other hand however, Musila (2009, p. 462) argues the side effect of the ICC’s intervention is that it has focused politicians’ attention to resisting outside interference , at the expense of ensuring reforms and addressing the plight of the victims. This cannot be allowed to continue. There must be a nuanced thinking and serious reflection to address Kenya’s undesirable culture of impunity, speaking to issues of justice/injustice, and ensuring that the plight of the victims is addressed. While the debate around the ICC is important, it cannot be allowedto blur or dullthe pursuit of justice.

WHICH WAY KENYA?

Reparation is very important in the process of transitional justice. But it is in the area of reparations where the dilemma of applying a transitional justice paradigm, detached from the social and economic relationships among citizens, elites, and victims may emerge. This has been the case in Kenya. If the transitional justice mechanisms in Kenya that could lead to reparations become too focused on, say, the violence that followed the 2007 general elections, or abuses committed by police officials against rival ethnic or political groups, then there could be certain dangers (Robins, 2011). For instance, as Grombir (2012) contends, subsequent reparation measures may end up ignoring the causes and consequences of those periods of violence, and episodes of abuse. It is evident that no serious consideration has been directed towards mitigation of such a danger. This has led to further flaws, both perceived and real, in Kenya’s current transitional justice processes. Some commentators have argued that the transitional justice process in Kenya has slowed. The question then should be on how to rekindle the process, while considering the problems raised above.

Failure of the political elite to connect with the concerns of the people is a major challenge to transitional justice mechanisms in Kenya. Truth commissions have an impact on political, economic and social reorganization. International legal regimes like the ICC have strongly reinforced this influence. However, the current crude politicization of the ICC cases in Kenya has left the concerns of the citizens and indeed those of victims and/or survivors untended. This has and could continue to impact negatively on Kenya’s transitional justice processes.

The needs of the victims must play a role, and this should drive the methodology of the process in which victims are asked to define their reparative demands. While many victims know exactly what it is that they require, some may not be able to articulate in their own terms such needs as reparations. For instance a study carried out in Kenya by Robins (2011) asked victims of a wide range of rights violations to articulate their demands for reparations on their own terms. Most of those interviewed were unaware of their right to reparations, and as such victims’ demands are constituted not in terms of restitution, compensation, rehabilitation, satisfaction, and guarantees of non-repetition, but on the basis of perceived needs that emerge from their everyday lives (Robins, 2011, p. 9). This discrepancy between the theoretical understanding of reparations, and ordinary people’s conception of it, is one such complexity that current mechanisms in Kenya must reckon with to ensure success.

CONCLUSION

Kenya’s case is a typical representation of the dilemma that plagues most African countries today. While most of the regimes are beginning to acknowledge, at least in part, that there have been atrocities, human rights abuses and various forms of injustices that need to be addressed, they simultanesouly appear to be perplexed by the demands for peace and justice This is the transitional justice dilemma which the Kenyan state has thus far failed to show it can be trusted to successfully tackle. The role of the civil society and other non-state actors is therefore paramount to bring justice in Kenya.

* Magara Ibrahim Sakawa is a Programs Assistant for the Coalition for Transitional Justice under Human Rights Network, Uganda (HURINET-U).

REFERENCES

Amnesty International. (2008). Kenya Concerns about the Truth, Justice and Reconciliation Commission Bill. London: Amnesty International.

Arthur, P. (2011). Fear of the future, lived through the past: Pursuing transitional justice in the wake of ethnic conflict. Identities in transition: Challenges for transitional justice in divided societies, 271-302.

Asaala, E. (2010). Exploring transitional justice as a vehicle for social and political transformation in Kenya. Retrieved from: http://tinyurl.com/lj7k4vk


Branch, D. (2011). The International Criminal Court and Kenya: ‘The Half Made Place’– the ICC and elections, 2012, African Arguments, 31 August. Retrieved from http://africanarguments.org/2011/08/31/the-half-made-place-kenya-the-icc-and-elections-2012-by-dan-branch

Brown, S. (2011). The National Accord, Impunity and the Fragile Peace in Kenya. In 6th ECPR General Conference, University of Iceland.

Gathii, J. T. (2011). Kenya’s Credible Commitment to Keep Its Date with the ICC, Forthcoming Nairobi Law Monthly. Retrieved from;
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1729813

Gona, G. (2010). The South African Truth and Reconciliation Commission (TRC): Lessons for Kenya, in wa Mũngai, M., & Gona, G. M. (Eds.). (2010). (Re) membering Kenya:
Identity, culture and freedom (Vol. 1). African Books Collective


Grombir, F. (2012). Transitional justice and democratization in the Post-Accord Kenya; 2008- 2012. Dissertation, University of Leeds. Retrieved from;
http://www.academia.edu/2582071/

Grono, N. & O’Brien A. (2008). Justice in Conflict?: The ICC and Peace Processes, In: Clark, P., & Waddell, N. (2008). Courting conflict. Royal African Society.

Hansen, T. O. (2013). Kenya's power-sharing arrangement and its implications for t transitional justice. The International Journal of Human Rights, 17(2), 307-327.

Harbeson, J. W. (2012). Land and the Quest for a Democratic State in Kenya: Bringing Citizens Back. Retrieved from; http://academic.research.microsoft.com/Journal/10076/afr-stud-rev-african- studies-review.

International Centre for Transitional Justice (ICTJ) (2012). What is transitional justice?, [online] available at: [Accessed 10 August 2013]

Karanja, S. K. (2010). Land Restitution in the Emerging Kenyan Transitional Justice Process, Nordic Journal of Human Rights, 2, 177-201.

Kegoro, G. (2013, October, 20). By conduct, we have repudiated the constitution. The Sunday Nation. Nairobi: Nation Media Group Limited.

Kisiangani, M. (2008). Kenya’s convoluted transition and options for transitional justice justice. Retrieved from: http://www.africabookcentre.com/acatalog/NEPAD.html

Mue, N. (2013, September, 26).Transitional justice process in Kenya and the implications on the ICC intervention. Conference presentation. Nairobi: Hekima Institute of Peace Studies and International Relations (HIPSIR).

Musila, G. M. (2009). Options for transitional justice in Kenya: Autonomy and the challenge of external prescriptions. International Journal of Transitional Justice, 3 (3), 445-464.

NPI-Africa and WANEP. (2010a). Let’s talk: Guide to the TJRC and transitional justice: Booklet two. Nairobi: ISBN.

NPI-Africa and WANEP. (2010b). Let’s talk: Guide to transitional justice and truth commissions: Booklet two. Nairobi: ISBN.

Parliament of Kenya, (2008). Truth, Justice and Reconciliation Act. Retrieved from http://tinyurl.com/mklbgvy

Robins, S. (2011). To Live as Other Kenyans Do: A stud of the Reparative Demands of Kenyan Victims of Human Rights Violations. Retrieved from; http://ictj
org/sites/default/files/ICTJ-Kenya-Reparations-Demands-2011-English.

Rutto, B. (2009). Kenya’s Truth, Justice and Reconciliation Commission, Pambazuka News , 30 July, 444. Retrieved from; http://pambazuka.org/en/category/letters/58096

Sarkin, J. (2011). The African Commission on Human and People’s Rights and the future African Court of Justice and Human Rights: Comparative lessons from the European Court of Human Rights. South African Journal of International Affairs, 18(3), 281-293.

Sooka, Y. L. (2009). The Politics of Transitional Justice, In: Sriram, C. L. & Pillay, S., (Eds.). (2009). Peace versus Justice? The Dilemma of Transitional Justice in Africa, Scotsville: University of KwaZulu-Natal Press.

Sriram, C. L., & Brown, S. (2012). Kenya in the Shadow of the ICC: Complementarity, Gravity and Impact. International Criminal Law Review, 12(2), 219-244.

Teitel, R. G. (2003). Transitional justice genealogy. Harv. Hum. Rts. J., 16, 69.

TJRC. (2013). Report of the Truth, Justice and Reconciliation Commission. Nairobi: ISBN: Retrieved from; www.tjrckenya.org

Wainaina, N. (2009). The Truth, Justice and Reconciliation Commission: A flawed law, Pambazuka News, 29 January, 417. Retrieved from; http://www.pambazuka.org/en/category/comment/53657

Warigi, G. (2011). Who gains from Kenya’s ICC cases?, BBC News, 7 April 2011. Retrieved from; http://www.bbc.co.uk/news/world-africa-12831054

* THE VIEWS OF THE ABOVE ARTICLE ARE THOSE OF THE AUTHOR/S AND DO NOT NECESSARILY REFLECT THE VIEWS OF THE PAMBAZUKA NEWS EDITORIAL TEAM

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Transitional justice: Whose justice?

Prisca Kamungi

2014-11-21

http://pambazuka.net/en/category/features/93442


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The quest for justice for past wrongs is often hindered by restrictions on which violations to investigate and how far back to look into history. Across Africa, tjustice mechanisms tend to restrict themselves to uncontested periods and rarely probe into complex injustices.

INTRODUCTION

Transitional Justice has engendered much debate amongst scholars and practitioners who question the meaning of ‘transition’, ‘justice’, ‘reconciliation’ and how these may be achieved, and whether particular outcomes can be achieved without recourse to popular mechanisms (Wachira, Kamungi and Sillah, 2014; Van der Merwe and Chapman 2008). The question of ‘justice’ has spawned debate about whether or not to punish perpetrators in post-conflict societies, the distinction between and comparative advantage of retributive, restorative, distributive or procedural justice. These debates are couched in the language of human rights or reconciliation, reflecting post-conflict societies’ struggles to overcome the legacy of violence and meet the needs of victims, offenders, and the wider community. Transitional justice processes tend to focus on victims and the imperative to right past wrongs. Justice, in this sense, is variously understood as criminal trials for perpetrators, and fulfilling victims’ right to truth and reparations. Whether to pursue these goals through traditional mechanisms of modern judicial processes elicits concern over their respective inadequacies.

JUSTICE FOR VICTIMS THROUGH PROSECUTION OF PERPETRATORS

Ideally, transitional justice requires that human rights violations be submitted to an indiscriminate application of human rights law. Criminal prosecution is upheld for its consistency with international human rights law, notably the obligation to punish crime (Haden, 2004). Criminal justice is believed to have intrinsic worth and is regarded as a basic ingredient of a stable democracy. It is argued that trials establish a direct responsibility for wrongs committed and, when they result in convictions, clearly identify the perpetrators. Trials emphasize accountability (Rwelamira and Werle, 2005). They are believed to deter future atrocities, although some critics argue that there is no empirical evidence to support this claim (Fatah, 2007). They are also thought to satisfy the need of victims for the full restoration of dignity (Centre for Conflict Resolution, 2007). In situations where atrocities were committed during divisive conflict, it is thought that prosecutions help to individualize guilt and responsibility, thereby reducing the possibility that the aggrieved continue to hold entire responsible for their suffering.

Conversely, prosecutions have been found to be impractical and inadequate in contexts of transition. They are lengthy and costly, and therefore unattractive for societies needing to move on quickly and prioritize reconstruction and reconciliation. At the conclusion of a war, it is impossible to prosecute all offenders (Hayner, 2002). Prosecuting some while leaving others can fuel grievance over perceived victimization or discrimination, regardless of the validity of criteria used to select who to prosecute. In Kenya, for instance, claims that selected suspects ‘were not the real perpetrators’ and that the list ‘was not representative enough’ triggered political discourse which ultimately attracted public sympathy to the suspects and obscured the quest for justice. Related to this question is the issue of scale and proportion: how many people can reasonably and practically be prosecuted for violations? (Neier, 1998). This is a critical question where violations were not perpetrated exclusively by the state and organized armed groups, but by the ordinary populace as well, where ‘mobs’ participate in inter-group violence or lynching. This form of societal complicity, or ‘popular agency’ (Mamdani, 1998:12), makes it difficult to isolate individual perpetrators. In South Africa, as in Rwanda, the participation of large numbers of community members led to perceptions of community guilt, where actions of a group member were attributed to all members of that group. In Rwanda, it created the perception that all Tutsi were victims, and in South Africa, that all whites were responsible for crimes committed during apartheid. In Cote d’Ivoire, DRC and Sierra Leone, violations by state security forces, ‘private armies’, vigilantes, criminal gangs, rebel groups, and ‘angry members of the public’ blurred the line between law enforcement, on the one hand, and political and criminal violence, on the other, and obscured distinctions between vertical and horizontal accountability. Because of the multiplicity of actors and contexts within which violations take place, prosecution alone as a means to justice is clearly insufficient.

In post-conflict societies, most institutions, including the judiciary, are dysfunctional, weak, and inept (Miano, 2004). A lack of capacity to conduct trials within the limited transition period and the absence of public trust and confidence render widespread prosecution an inappropriate tool for moving a nation forward. Judicial and other criminal justice institutions would first need to be reformed before undertaking credible prosecutions. Such reforms take time and resources, which may not be prioritized by new regimes seeking to consolidate their hold on power and reluctant to make bold changes.

Some scholars argue that victims are the main losers in punitive systems because criminal trials focus almost exclusively on perpetrators in guilt-seeking procedures that do not respond to the harm and injury suffered by the victim (Cragg, 2000). According to Fatah, “[T]he offender gets punishment; the victim gets nothing.”(Fatah, 2000:6). Moreover, some argue prosecution detracts from the reconciliation agenda and creates conditions for revenge and cycles of violence (Biggar, 2001).[1] From this perspective, justice should not be about assigning rewards and punishments but about seeking to do what is right in the circumstances and repairing the harm caused by criminal acts in order to restore balance in a community (Kisiangani, 2007).

Besides large numbers of perpetrators and institutional incapacity, the quest for justice can be hampered by rules of evidence or evidentiary bar. Lack of sufficient information and the demands of burden of proof can hinder the admissibility of available evidence and affect the outcome of important cases. For example, cases related to sexual and gender-based violence may be difficult to prove, particularly when they have occurred in a context of violent conflict or war where perpetrators are strangers and where no functioning institutions provide medical or legal records. Moreover, stigma and ostracism may discourage victims of SGBV from reporting or seeking redress. Passage of time makes it progressively difficult to gather sufficient evidence as memories fade or where key witnesses have died. In other situations, the willingness by witnesses to give testimony may be compromised by fear of reprisal or feelings of solidarity with the accused.

In current practice, the number of persons to be prosecuted is managed by focusing on a few powerful leaders who directed, funded or oversaw acts of violence. The International Criminal Court criterion on ‘those who bear the greatest responsibility’ as used in various situations in Africa holds a few top leaders responsible the crimes of low- and middle-level perpetrators. While this approach contributes to the fight against impunity among the top political leadership, it is perceived as adequately representing local people’s understanding of who the perpetrators are: some felt that persons who carried out actual violations should be held accountable for their actions, not just, or even necessarily, the persons at whose behest they claimed to have acted (Karuti and Kamungi, 2013; Wachira, Kamungi and Sillah, 2014). The approach may also be insufficient where there is no centrally organized or recognized leadership in factional violence.

The quest for justice for past wrongs is often hindered by restrictions on which violations to investigate and how far back to look into history. Across Africa, Transitional justice mechanisms tend to restrict themselves to uncontested periods and rarely probe into complex injustices, such as colonial-era violations. Even though colonial era violations in Kenya are the subject of several court cases, few other countries have sought to inquire into the remote past. Moreover, the British government has continued to object to these cases on the grounds that they are time-barred. However, avoiding historical events has tended to restrict comprehensive discussion of structural injustices that underlie contemporary divisions and violent conflicts.

JUSTICE FOR VICTIMS THROUGH REPARATIONS AND RESTITUTION PROGRAMMES

Reparations programmes are the material or symbolic form of recognition owed to victims of human rights violations. They are a political statement of recognition of unrecognized violations, acknowledgement of the suffering of victims, and a commitment redress wrongs to promote individual and collective healing (van der Merwe, 2004). Reparation can be achieved through material and non-material means, and be directed at individuals or groups. Reparations take different forms including rehabilitation, monetary compensation, restitution of property, goods and services, and apologies. Restitution programmes are instituted to help victims manage their loss by trying to return them to their situation before the violation occurred. To victims, reparations are the clearest and most direct indicator of a government’s willingness and commitment to address their plight: they are designed to ‘do something’ to redress the loss or harm suffered by victims. The direct and usually individualised benefit makes reparations one of the most victim-responsive features of transitional justice processes. Reparations are recognized as a right in international humanitarian law (REDRESS, 2003) and regional instruments such as the Nairobi Declaration.

The reparations question in transitional justice is often complex and controversial. The notion of reparations has multiple meanings, political and cultural underpinnings, and involves a sometimes contentious process of determining liability and categories of harms to be redressed. In context where the state is responsible for violations, it may be difficult to get official acknowledgment and apology. In situation where there are overlaps between victims and perpetrators over historical periods, the process of determining who is wrong or wronged, or who pays and receives the reparations can become a difficult and emotive issue. Considering these sensitivities, de Grieff (2009) suggests that reparations programmes should take into account four elements: scope, comprehensiveness, complexity and coherence. By scope he means for a reparations programme to be complete, it must not isolate or exclude any victim that suffered the particular violations under consideration, while Comprehensiveness refers to the number of distinct harms or types of violations that are ‘compensatable’. Complexity refers to the different forms that reparation efforts may take, for example from simple, one-off monetary payment, to a combination of staggered monetary payment, truth-telling, apology, health insurance, education support etc. The more complex a reparations programme, the more likely it is to respond to the victims’ needs. Coherence has internal and external dimensions relating to mutual reinforcement. For instance, reparations payments without apology or truth-recovery may be interpreted as inducement to buy victims’ silence, while truth-telling without reparations can be seen as an empty gesture.

Reparations programmes cover only certain types of violations, depending on the negotiated agreement providing for them. Due to a strong focus on human rights violations, matters of civil or political rights such as death, disappearance, and maiming are more likely to attract compensation. Complex violations such as forced displacement, loss of home and property to invaders or arson, land dispossession, rape, politically motivated sacking n from employment, and arbitrary arrests may be more difficult to compensate. This may create the perception that some violations are more important than others. Depending on lobbying and advocacy capacity of victim groups, varying levels of visibility and access to reparations programmes can increase victim competition and unforeseen cleavages. Looking are reparations as a price label for human rights violations can alter the meaning attached to victimhood, and fail to satisfy victims’ and secondary beneficiaries’ needs, interest and expectations. Attempts to match the reparation amount to one’s suffering may reduce the symbolic value of the reparation process and heighten the disappointment should the government fail, or be unable, to pay due to the huge costs of reparations programmes..

Reparations take different forms, ranging from monetary payment, livelihood recovery support, free social services (e.g., education and health), or facilitated access to empowerment programmes. The revelation of truth is regarded as s a form of reparation because many people who did not know what had happened to their loved ones. Symbolic reparations included exhumations and re-burials, issuance of death certificates, and restoration of standing in society through expurgation of criminal records, and revelations of innocence. Access to these truths accompanied by official acknowledgment and apology also constituted a form of reparation. Rehabilitation of community facilities, erection of memorials, official apology, creation of and monuments and statues of national heroes, declaration of national days of remembrance are some of the ways that justice to victims is sought.

JUSTICE FOR PERPETRATORS THROUGH GENERAL OR CONDITIONAL AMNESTY

Amnesty derives from the Greek word amnestia, meaning forgetfulness or oblivion. In application, it means casting into oblivion all that happened in the past for the sake of peace or reconciliation (Borraine, 2007). In legal terms, it denotes an effort by governments to bar criminal prosecutions or civil suits against alleged perpetrators (Mallinder, 2007). This may entail elimination of any record of crime or granting immunity from prosecution. In most cases, amnesties are granted for political reasons – to consolidate peace and encourage a quick end to violence, or satisfy demands of powerful outgoing regimes.

Amnesties are granted, respectively, in diverse contexts:in peace agreements to promote reconciliation, in dictatorial regimes to undermine the opposition, and in new democratic governments to release political prisoners. Whether or not to grant amnesty, either conditional or blanket, remains controversial in countries in transition. Amnesties are often justified by the perceived need to alleviate internal pressure, to protect state agents from prosecution, to promote peace and reconciliation, as part of reparations, to encourage exiles to return, and in adherence to cultural and religious norms (O-Shea, 2004).

Amnesty strategies come in many forms, including immunity from prosecution, limiting investigations to specific periods, conditional ties to full disclosure of truth as in South Africa, or to the return of stolen wealth as demanded by civil society groups in Kenya. The amnesty debate falls within the impunity-versus-justice dilemma, in which those opposed to it argue, generally, that it violates the rights of victims to redress and is inconsistent with the obligation under national and international law to punish perpetrators of human rights violations and other crimes (Orientlicher, 1999). Critics further opine that amnesties subvert the rule of law by allowing certain groups of perpetrators to escape liability. Indeed, amnesties are believed to undermine both specific and general deterrents, and promote cynicism and disillusionment among victims of human rights abuses (Kiai, 2003). They can serve as the basis for disenchanted embarking on acts of private vengeance (Minow, 1998). Amnesties short-circuit mechanisms most societies have established to right wrongs by punishing wrongdoers (Abrams, 2000).

Conditional amnesty in exchange for truth has been promoted in several Truth and Reconciliation processes. According to Hayner, it is permissible if granted to an individual as opposed to groups, and where victims are given opportunity to question or to challenge an individual’s amnesty claim; and where reparation payments are made to victims (Freeman and Heyner, 2003). Writing on South Africa, Boraine states that “the possibility of granting amnesty was based not on a legal or human rights argument, but on a political decision: it was a political compromise. Wachira (2004) also observes that decisions on such questions are determined not so much by their moral appeal or severity of the crimes, but by political interests and strategic actions to advance those interests.

Advances in human rights law, civil society campaigns against impunity and advent of the ICC challenge the granting of blanket amnesties. It is no longer possible to grant amenesty in situations involving serious crimes (Sooka, 2008).

* Prisca Kamungi teaches at the Institute of Diplomacy and International Studies, University of Nairobi.

END NOTES
[1] Biggar, N. (2001) Burying the Past: Making Peace and Doing Justice After Civil Conflict. Washington, DC: Georgetown UP.
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Somalia: Let’s just forget the past?

Marco Zoppi

2014-11-18

http://pambazuka.net/en/category/features/93436


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It will be impossible to reconstruct Somalia without addressing its complex past. Yet the current definition of transitional justice appears too narrow to be beneficial, since it limits the space for local-based procedures in favour of Western concepts like the state, rule of law and democracy.

I recently attended a conference where I had the chance to hear the speech of one Somali diplomat, whose identity or post is not what is important here. What he said, however, matters much more as he has indeed brought on the table many issues concerning the Federal Republic of Somalia’s future. Although his speech was preceded by a disclaimer that his opinions were not necessarily those of the Somali government he is representing abroad, it is fair to assume that many of his statements necessarily correspond to actual policies put in place by the federal government which appointed him, as media evidence seems to suggest. Starting from this conference, yet moving forward to analyze current Somali affairs, in this article I would like to engage on questions of reconciliation and (transitional) justice in Somalia: I argue that it’s a proper time to bring these elements in the debate, or rather to bring them back again in the debate, now that the federal system has been set to govern the country, but its realization is yet advancing with manifest strain and tension: in fact, we need to ask what can be held accountable for the slow implementation of the federalist project, and in doing so, it doesn’t seem reasonable to only take into account the flaws in the constitutional text, or the logic of clanpolitics, as a number of analysis have tried to do so far.

To pinpoint the core of the matter, the main concern I am confronted with is the diplomat’s affirmation regarding what to do with Somalia’s past, namely: “the past? Let’s just forget that”, while focusing all efforts to re-build a functioning state, first of all through the securitization of the territory, as he went on to suggest. But is it really the case that the Somali state can be re-built without even attempting any reconciliation among Somali population? In other words, where does the pivot of the discussion about peace and justice in Somalia lie (or should lie)? In the top-down state engineering or in the social norms regulating the harmonious relations among citizens and between them and the state? These are not rhetorical questions, and their answers call for historical as well as social analysis, as I will try to underline now.

The first point that I would like to stress is the following: if we look at the different reconciliation processes which have taken place over time since the collapse of Siad Barre’s regime, the emphasis has prevalently been on the need to resurrect the state or to gather all relevant leaders/warlords around the same table, taking for granted that they would fairly represent the vast majority of the Somalis population. This modus operandi reveals that the international community presupposed a convergence of the socio-political dynamics shaping the Somali society with the ones characterizing western countries: accordingly, they mobilized concepts such as “state institutions”; “representation”, “democracy” without even scrutinizing their factual compliance with local patterns of political behavior. Thereafter, in the face of the poor governance established by those leaders, which nourished rather a state of protracted war, the same international actors would conclude that Somali and African societies in general are hostages of corruption, nepotism, ethnic hatred and similar issues which they treat as “pathologies” that need to be cured. While there is some space to partly concur with what is said above, it is still interesting to note that western institutions were not, anyhow, the ones whose effectiveness was to be put into question in this discourse: poverty, clan rivalry, weak African leadership were to blame, and not much of this myopic way to see things has changed nowadays.

Nevertheless, there is a reality that we need to face: the solution to these exacerbated political issues is not derived from “better” governance alone or, in the case of Somalia, from the federalist structure per se; what is missing in the framework of action of the international community is, first of all, the understanding, or the willingness to understand, the role of history as well as of historical consciousness for reconciliatory processes; secondly, there has not been a serious engagement to include or at least mediate the tenets of the “social contract” of the Somalis, namely the norms which regulate at least three dynamics: the social interactions among people; the definition of citizenry (not so much in a legal way but in the sense of recognized participation in common activities); and the criteria for community membership. As many scholars have underlined, this form of indigenous governance is capable of producing remarkable levels of governance, but unfortunately it is often neglected in the state-building process, notwithstanding their relevance for the everyday life of the people who are supposed to live in that precise state. Hence, what happens is that there is a discrepancy between the rights and duties of the citizen so as described in the federal constitution (articles from 10 to 42) and the kind of “civil society” defined by Somali traditional norms. The overlapping of these two types of both public and private spheres has relevant implications, mistrust and lower loyalty towards the state. To be sure, these traditional norms are not a relic from a primordial past that must change in order to enter an alleged “modernity”.

The tradition of the Somali population, that is prevalently (especially in the north) but not exclusively pastoral is shaped, I argue, first of all in reaction to the harsh environmental conditions which have forced life to be mobile, fast, less hierarchical, more communitarian and violent because resources are scarce and unequally distributed on the territory. That’s why the Somalis developed a different way to secure themselves from risks and a different system to ensure social security, to which the clan is an essential part. The imposed top-down approaches to state-building are overlooking this aspect and, by claiming and financing the imposition of the state as the competent body to both manage risks for the population and create safety nets for the “citizens”, they also demonstrate to ignore history. They ignore, for example, that the legacies of both colonialism and Barre’s autocratic rule have left behind little trust and much suspicion towards the state among the Somalis, who are unlikely to change this attitude for the short-term period. Hence, the citizens that the state is trying to reach are not there, because a culture mediating the relation between the state and the population is missing in Somalia, and needs to be built from scratch.

But before doing that, reconciliation among citizens is required: in a society so threatened by resource scarcity, yet well equipped with traditional institutions devoted to settle disputes, the fact that reconciliation processes have been hindered has particularly plenty of social implications. Therefore, the priority given by the federalist government to security issues may not be the ideal path forward, since it would mean operating on the consequences and not on the root causes. The legitimacy of state institutions is, after all, still missing and for a good reason: it is redundant to say that the lack of legitimacy is likely to influence internal stability as well. The state, rather than a prerequisite for stability, should be conceived instead as a major achievement following the enactment of agreed-upon political practices.

The second matter I wish to deal with now is: what can Transitional Justice (TJ) bring to Somalia? Somali society is in desperate need to re-conciliate after the widespread violence connected to the civil war. Intra-clanic fights; confrontation between nomad/pastors and settled farmers; the emergence of discriminated minorities: these are some of the thorny issues of Somali past are still to be addressed in the post-1991 context. However TJ as commonly understood (including by United Nations) implies too much of state institutions or western-born concepts like the rule of law, to be a viable solution for African problems, it is argued here. In fact, if many African political crises are somehow the outgrowth of the “politics of the belly” (to quote Jean-François Bayart), namely of clientelist practices involving the state and the private sector or the broader population, the solution out of this deteriorated political situation should then come from other political bodies which enjoy people’s legitimacy, the latter built around both common definitions of what is justice as well as generalized perceptions of what is desirable and appropriate for the community’s common good.

At the moment, the state is thus not representing the ideal political body considered able to attract adequate degrees of legitimacy. That’s why the strengthening of state institutions advocated by TJ theories may not be what is firstly needed here, especially if reconciliation and the coming to terms with the past in reverse are not included at any level in the post-conflict recovery process. I intend to underline the need to develop African recipes for reconciliation which can be more responsive to population’s needs: these kinds of indigenous institutions, including the clan, can convey values which are intelligible to the population because they are born out of the local social contract: the respect of this social contract would alone ensure a satisfying degree of national safety while, on the other hand, “the creation of a national army” prioritized by Somali the federal government is not necessarily a synonym for peace-building. I am affirming this because the univocal notion of citizenship proposed by the state is hardly fitting into the reality of the constellation of clans already equipped each with its own respective definition for establishing who is a member.

So, while TJ’s truth-telling initiatives could help establishing an egalitarian approach that affords acknowledgment and dignity to all, the state framework is an inhibitor which would deliberately fragment that “all” into exclusionary definitions of citizenship and partisan factions, eventually jeopardizing the whole process. While these issues should be properly addressed, the specific provocation: “stop being slave of the tribal system and start behaving like a nation” that the diplomat directed to the Somali diaspora, is an indication of the government’s adoption of a mono-strategy to deal with the future of Somalia.

How could Transitional Justice manage the societal diversity? Just for clarity, it should be underlined that even the realization of a state-led reconciliation process based on TJ’s principles would not necessarily mean the consolidation, right away, of a national identity: Somalia is still composed of clans, and the clan is not just a political entity, but also a welfare provider for its members, as well as a security net: it performs a way more complex social role of than usually represented in international media, and it is even more efficient than the state in doing so in the Somali context: the clan makes the life of its member less insecure and problematic, yet more communitarian and more connected to kin through nets of duties and moral obligations. So, once more, reconciliation in Somalia should rather start from the full resurgence of the social contract and the traditional norms, the only ones that at the moment are able to attract the trust of the people and that are thus granted social legitimacy. The reconstruction of fragmented societies through Transitional Justice should be based on cultural forms and systems of knowledge which can be recognized by the concerned population: in the recent history of the international community engagement in Somalia, this would represent a novelty, and it would substantially change the meaning of transition itself: a transition from solely state-based approaches towards the inclusion of local social contract-based elements.

The last point of the discussion is about people. Not only institutions, whether western or Africans, count. People also matter, and people as a matter of fact make the institutions alive. How can history be just forgotten in order to leave space to new nation-building imperatives? Memories of the people are extremely important as they are actively contributing in determining current people’s life decisions; the historical consciousness is too relevant in this discourse to be left instead in the corner; better yet, the fundamental peace effort for Somalia may come exactly from those who have experienced the war and endure painful memories.

To conclude, I firstly stated that the federalist structure of Somalia is faces obstacles for its full implementation in virtue of a missing agreement on who is a citizen, and how relationships among citizens and between them and the state should be regulated. I then underlined that the inclusion of provisions contained in the Somali social contract and in the norms known as “xeer” in the current political development would increase the overall legitimacy of the process. I went on to say that, however, without reconciliation in a post-war traumatized and truth-seeking population, social cohesion is hard to be achieved. I then questioned the potential role of Transitional Justice, a point which I wish to expand now: in the case of Somalia, the current definition of TJ appears too narrow to be beneficial, since it limits the space for local-based procedures of definition of justice as well as consequent means to achieve it: it does so somehow implicitly, in the specific focus given to state, rule of law, democracy and other conceits belonging to the western political dictionary. I have claimed instead the need for a bottom-up reconciliation process in Somalia, based on the indigenous social contract or at least the integration of some of its tenets: these already include, in fact, measures for dispute settlement and are thus preconditions for a working variation model of TJ which would have more chances to be applied successfully. However, as it appears, this solution entails a direct challenge to the well-established strategies of state-building proposed by the west: the key point turns thus around the poor legitimization that Afro-based transitional justice processes would receive by international actors, notwithstanding the rather higher social recognition they would get internally. In other words, TJ as it is framed today in the general debate is at risk of creating an ideological alliance with the theories of the state, which in the African context would be nothing but detrimental, just as the past political record clearly shows. Most likely, it would reiterate the endless confrontation between the alleged “modernity” of the west, on the one hand, and the African tradition on the other, without bringing forward a valid as well as agreed-upon path to reconciliation.

* Marco Zoppi is a PhD fellow in Histories and Dynamics of Globalization at Roskilde University, Denmark. He is currently researching on the Somali diaspora in Scandinavia. He holds a MA in African Studies pursued at the University of Copenhagen. His personal interests include Geopolitics, history of Africa and colonialism. He can be contacted at: marzo@ruc.dk

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From the comfort zones to reality

A reflection on the Tafakari oral narrative tour

Ouko Eunice Wambui

2014-11-18

http://pambazuka.net/en/category/features/93435


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The oral history tour took transitional justice practitioners, activists and scholars out of the comfort zone into reality: To engage directly with survivors, hear their personal stories and appreciate their lived experiences as they pursue justice and reconstruction within complex social, economic and political infrastructures.

For over two decades transitional justice was mainly discussed within the precincts of comfort: In lecture rooms and conference halls by academicians, researchers and practitioners. Until recently, very little effort was made to confront the practical realities that transitional justice must address to resonate with local senses of justice. This was no more evident than during the recent oral history tour organised by the Refugee Law Project (RLP) and Fahamu Networks for Social Justice. As a follow up to the very successful 4th annual Institute for African Transitional Justice (IATJ) held in Kampala, RLP and the Fahamu Networks for Social Justice organized the first East African Tafakari (reflection) Forum, 5-9 October 2014 in Kampala under the theme “Towards a Self-Sustaining Transitional Justice in Africa”. The Tafakari Forum is a pan-African platform for critical dialogue and reflection by practitioners in the field of transitional justice within the continent.

The forum provides spaces for African voices to reflect on contemporary transitional justice discourses and mechanisms in light of Africa’s challenges. Specifically, the forum seeks to develop comprehensive analyses of the complexities of transitional justice policies and practices and their shortcomings in addressing the concerns of post-conflict societies in Africa. In the long term, the forum seeks to contribute to improved mechanisms for and approaches to accountability and transitional justice. According to George Mwai, a Programme Officer at Fahamu, “together, these activities seek to build a movement of pan-African thinking in a way that is able to model responses to the past that don’t trap us in the past, that don’t confine us into thinking only about the past, but look to the future in a way that is very transformative - transformative about power, about relationships, and transformative in a way that we address the root causes of conflict in this continent.” Indeed transitional justice should be about using our past as a resource for the future.

At this forum, RLP and Fahamu hosted 30 participants from Uganda, Kenya, Burundi, and South Sudan, including advocates who have represented victims of politically motivated violence, community activists, representatives of civil society organizations implementing transitional justice initiatives, and researchers who have explored traditional conflict resolution approaches and other forms of justice-seeking after violence. Starting off from the comfort of Uganda’s premium hotel, the Speke Resort Hotel Munyonyo in Kampala, participants were awakened with a thrilling exhibition by the National Memory and Peace Documentation Centre (NMDPC) under the theme, “The Muted Dynamics of Collective Violence”, highlighting some of Africa’s turbulent past ridden with injustices ranging from experiences of slavery, exploitation, colonial, post-colonial atrocities, and a legacy of impunity. While reflecting on whether contemporary transitional justice narratives had fully appreciated the structural causes of conflicts in Africa and the continents underdevelopment by Europe and the injustices committed by multinational corporations, among others, Dr. Steve Ouma, Executive Director of Pamoja Trust in Kenya, argued how transitional justice remains an incompletely theorized argument, particularly with regard to the South African experience. According to Ouma, transitional justice is premised on optimism, a presumption that there is movement from “here to there”. While individuals struggle with their own particular experiences of war or violence, the society as a whole must also “find a way to move on to recreate liveable spaces of national peace, build some form of reconciliation between former enemies, and secure these events in the past,” he said. Stephen Oola, the Head of RLP’s Conflict, Transitional and Governance Programme, questioned, “How far back must transitional justice efforts go to get to the root causes especially within the African contexts?” Victor Ochen from AYINET added: “How can we face Africa’s traumatic past events in a way that does not strengthen perpetual victimhood?” Participants reflected on how to address Africa’s unfinished business including legacies of slavery, colonialism and neo-imperialism with its various mechanisms and manifestations perpetuating resource and other related conflicts within the continent.

On the question of agency of victims in transitional justice discourse, Sarah Kihika, from the International Centre for Transitional Justice (ICTJ) urged a shift in the discourse from one of victimhood to one that strengthens reconstruction of societies. She argued that the victim-perpetrator binary is a strong feature of the dominant transitional justice discourse, and has the result of reducing the complex identities and experiences of survivors of violence to victimhood. Victimhood comes with entitlement to benefits such as reparations, acknowledgment, and memorialization of experience, but it can also lead to disempowerment and exclusion, she noted. A sustainable transitional justice discourse for Africa must recognise that the experience of violence creates resilience and rights entitlement that must be understood and engaged with from a survivor’s perspective. Transitional justice should focus on victims’ agency and resilience, rather than their perceived vulnerability. Practically, victims’ perspectives should be central to the design and implementation of transitional justice processes, Kihika concluded.

Speaking on international justice processes in Africa Dismas Nkunda, an independent consultant, observed that international justice processes in Africa should be open for discussion. He noted that transitional justice is currently a popular project with funders; so many people are discussing and working on it from an academic and financial point of view but will this end the atrocities we’re trying to prevent on this continent? He criticized the ICC for intervening in African conflicts without understanding the cultural and historical contexts of the violence, citing the recent Kenyan cases as an example.

Norbert Mao, President General of Uganda’s Democratic Party, called upon transitional justice practitioners and scholars on the continent to rekindle the pan-African spirit in a truly transformative way if the continent is to confront the myriad challenges of injustice pervasive today. Defining pan-Africanism as “a consciousness, a desire to craft a new identity, to realize a sense of oneness among people of African stock, between the isolated, uprooted diaspora, first with each other, and then with the African homeland”, Mao argued that pan-Africanism is a movement of both ideas and emotion, based originally in the experiences of people in the diaspora, searching for their roots and the homeland they had lost to colonialism and slavery. Mao traced the intellectual history of pan-Africanism, which he described as a movement that “emerged to replace submissiveness with pride and resistance.” The same dynamics of exploitation and dispossession that originally gave rise to the pan-African movement are happening today in different forms, with regard to Africa’s governance, new colonialism, and resources: “We now have presidents who control armies and policemen who dispossess us of our land, and they force us to be slaves in our own country.” Mao called for a political union of Africa, “in which the economic, military, and cultural activities of our continent will be coordinated for the collective security of our continent,” but suggested that the biggest challenge through the history of pan-Africanism has been to determine how to achieve that unity. He challenged transitional justice activists and the young people to read the texts that provide the foundation for pan-Africanist thinking. He further argued that the task of pan-Africanists is to connect the “points of light on the African continent.” “We don’t have Kwame Nkrumah, we don’t have any of those old prophets of pan Africanism, but we have you,” Mao concluded. With all those many questions in mind, participants embarked on an oral history tour unlike any before.

The oral history tour was organised by RLP to take transitional justice practitioners, activists and scholars out of the comfort zone into reality: To engage directly with survivors, hear their personal stories and appreciate their daily-lived experiences as they navigate their pursuit of justice and reconstruction of liveable spaces within complex social, economic and political infrastructures. From RLPs experiences, each time one moves out of their comfort zones and engages with reality it catalyses more reflection. RLP’s Traveling Testimonies Exhibition across the country had inspired its visitors and exhibitors to a thoughtful dialogue about the opportunities, tensions, and practical issues related to justice and memorialization, including: transience and permanence in memorialization, domino effects of memorialization, timing and linking memorialization to other transitional justice processes. However, the oral history tour was cathartic and humbling in very many respects as many participants later explained.

The Travelling Testimonies exhibition displayed collections of artefacts, photographs, and information about conflicts in Uganda and was designed as an interactive space, in which people created the exhibition in the process of visiting it. For example, people brought images to be added to the exhibit; those photos were then scanned and returned to them in digital form. They wrote their own labels for the photos and artefacts that connected to their experience. As Kara Blackmore, a consultant curator explained, there was “kind of a truth and reconciliation initiative happening within the process of creating conflict narrative in the artwork even though there was no direct relationship between the same victim and perpetrator.” According to Blackmore, in every place where the Traveling Testimonies exhibition was displayed, “People saw that and said, ‘Wait, I have a story, too’. They would look at an image and elaborate their own testimony in that space.” The exhibit also created opportunities for people to “point fingers,” to name “heroes and perpetrators” whose images they believed needed to be on display. Blackmore observed the value they placed on “the justice of pointing fingers at a photo.”

The Oral History Tour took participants across the countryside. Sixteeen participants travelled over 500km navigating extremely difficult terrain and bad roads to the eastern side of Uganda into Teso, Lango and Acholi to visit massacre sites, engage with communities and meet with victims and survivors of past collective violence. After a sobering long drive, the first stop was the Mukura Massacre Site, found in Kumi, Teso sub-region where the Tafakari Forum participants met with more than 60 members (49 males and 11 females) of the Mukura Memorial Development Initiative (MMDI). The MMDI members included widows, orphans, and survivors of the July 11th 1989 National Resistance Army (NRA) massacre that took place at Mukura. Three MMDI members—two survivors and a widow—shared their testimonies, providing first-hand accounts of the Mukura massacre. According to the survivors, in the few days leading up to July 11th 1989, NRA/UPDF soldiers in villages nearby rounded up men. During this process, many women were beaten and raped. Over the course of two to three days, the men were forced to march to the Mukura railway station, where the army barracks was located. They were given no food to eat. When they reached the station, they were tortured, including being forced to sing and dance. The army divided out men who they suspected to be rebels from the men they deemed unthreatening. They marched the suspected rebels to Kumi, and moved 189 of the men to a metallic goods wagon on the railroad tracks at midday. An additional 90 men remained in the goods shed, where they had been tortured so badly they could not move. Sixty-nine men suffocated in the goods wagon before the people in town were able to release and feed the remaining 120 men some of whom survived.

The MMDI led a tour around the memorial site, which includes a chapel for yearly memorial prayers, a room that is intended to become a community library, a mass grave and monument, the railroad station, and a nearby memorial secondary school. During the tour, the visiting transitional justice scholars, activists and practitioners were visibly challenged as community leaders and survivors narrated their locally conceived transitional justice activities that they had engaged in. Twice President Yoweri Museveni has visited the community, and at one point he offered an apology, placing responsibility for the massacre on “young, inexperienced soldiers.” He announced that a court martial would be conducted to hold the perpetrators accountable, but no further news has been relayed to the community. On one of President Museveni’s visits during an election year, he donated 200 million UGX, which was arbitrarily dispersed to victims. He also directed the UPDF to build the chapel and library, which they took many years to complete, and was poorly constructed and is already falling apart. The library remains an empty room, without books, tables, or the Internet connection promised. The government also established the memorial secondary school, although the group did not visit it. The survivor group is participating in a lawsuit against the government demanding full reparations. They will attend a sub-region-wide victims’ conference to coordinate activities later this month. In addition, the survivor group administers a savings cooperative among themselves, conducts yearly memorial prayers and athletics tournament, provides peer counselling, and engages in advocacy through music, dance, and drama.

From Lango sub-region, Moses Ongwang shared the infamous Barlonyo massacre that took place in his community. In his narrative, a total of 11,643 people were staying in the Barlonyo internally displaced persons’ camp with only 65 government soldiers stationed there to protect the camp. On February 21, 2004, around 5:30 pm, rebels from the Lord’s Resistance Army (LRA) attacked the camp. They killed 18 of the government soldiers, and the rest fled, leaving the civilians unprotected. The rebels shot people as they tried to run, cut others with pangas, beat some to death, tied some and burned them to death inside their own homes, and tore the bodies of young children to pieces before burning them in the fire. It is believed that they attacked the camp in order to abduct children for fighting, to loot properties, and to punish the community for a recent government victory over the LRA in a battle at nearby Abiya Internally Displaced People’s camp.

In that Abiya attack, Ongwang hid with 27 other people in one of the homes in the camp; as night fell, they escaped one by one and spent the night in the bush. In the morning, they returned to the camp, and found a military commander burying the bodies of the dead. The survivors demanded to count the bodies before they were buried. Along with teams of doctors sent by the government, they counted 301 bodies, although more were killed. In 2006, when community members returned to Barlonyo, they counted 580 people missing in total, including those who were abducted and killed in the bush, those who died later in the hospital, and others whose bodies had been destroyed beyond recognition. A total of 470 were orphaned and the people of Barlonyo divided the orphans among the remaining households.

President Museveni in one of his regional tours promised that all orphans would be given free access to education, but no assistance has been received to date. Every year, memorial prayers are held at Barlonyo memorial site, where the 301 bodies were buried. Notably, the memorial erected by the government lists 121 dead, for which the community is demanding an explanation. In 2015, the survivors plan to invite other survivor groups to participate in the memorial prayer.

In the discussion that followed, participants made observations about critical transitional justice issues facing the community. The government’s failure to protect the camp and to follow through on the promise to care for orphans was noted. It was noted that both the government and LRA committed serious violations against the community, so it was questioned which entity are they focusing their efforts to hold accountable? Ongwang replied that the focus is on securing two things from government—acknowledgement for its failure to protect the community, and reparations. The Chief of Patiko noted that the community feels like it is “still in conflict,” in part because the government structures for help are fragmented.

In Gulu Rwot Jeremiah Muttu Bongojane, the Chief of Patiko, offered insightful reflections on the film “Let’s Save the Future” a short documentary on the reburial ceremony that was performed in Lukodi, the site of a massacre by the LRA, and the historical significance of Fort Patiko, a key site in the fight against slave trade. In response to the film, Chief Jeremiah explained the significance of individual burials in Acholi culture. In order to preserve the strong connections between past, present, and future generations, individuals are buried within the family compound, so that their graves can be maintained. When the people of Lukodi returned home, the 59 massacre victims had been buried in a mass grave. Despite struggling with severe poverty, the people of Lukodi gathered 10 percent of the money necessary to properly rebury the bodies of their beloved ones. They then worked with a local organization, the Justice and Reconciliation Project, to raise the rest of the funding for the ceremony. They exhumed the bodies, performed rituals for cleansing the area and the new burial sites, and reburied the bodies in each family’s compound. Chief Jeremiah explained, “They now feel that they have settled the matter, the dead have been decently buried, and they can now move on with their lives.” Furthermore, community members in Lukodi have preserved their memories through drawings, poems, and stories. When the former ICC prosecutor, Luis Moreno Ocampo, visited them earlier this year the community requested that he finds funding to build a museum to house their memories. Furthermore, Rwot Jeremiah observed that RLP’s documentation efforts are critically important, and provide communities with an important source of power. In his narrative Jeremiah explained the history of Fort Patiko, also called Samuel Baker’s Fort.

Sir Samuel Baker was a missionary and explorer looking for the source of the Nile. He arrived in Patiko in 1864 and learned from the Chief of Patiko at that time, Kikwiya Kawer, that Arab traders were raiding his people for slaves. Baker returned to England and came back to Patiko in 1872, armed with soldiers from Egypt (the region was under Egyptian rule in the “Equatorial Region” at that time). Baker’s soldiers cooperated with people from Patiko and neighbouring clans to fight off the Arab traders and seize the fort. While the slave traders were active, the region suffered from famine and sickness, because people were not able to go to their gardens, due to fear of abduction. The chief at the time took the elderly, children, mothers, and young boys to a rock known as, “Ajulu” (in English, “nurturing”), where he kept them alive in order to keep his people from total extermination. Today, Fort Patiko is a historical site registered with the Ministry of Tourism. Chief Jeremiah claims the fort as his property, which he can contract to the Ministry of Tourism to administer; however, the government has classified the fort as state property. The cultural institution in Patiko is currently negotiating with the government to find a mutually beneficial solution.

In closing, Chief Jeremiah issued a strong challenge to the participants: “I want to appeal to you in this room. You have come from different countries. I want to say that as much as now we are documenting these things and trying to understand what happened, I want to urge you to do everything within your power to see that your children do not go through what is going on in Africa today. For the few years I’ll remain alive, I don’t want to see another Lukodi massacre, Barlonyo massacre,” he concluded.

From their testimonies, the survivors and affected communities were visibly frustrated by the arbitrary dispersal of funds from the President in the absence of a comprehensive reparation policy. They argued that the money created divisions among survivors, and did not address their need for comprehensive reparations and that this experience reveals the need for a formal reparations policy. Furthermore, it was observed that communities sometimes perceive demands for reparations as “attacking the government in power now,” which can discourage victims and survivors from mobilizing and making demands. It was observed that it should be made clear “that the obligation that people are talking about is actually an obligation of the state.” The right to reparation places the obligation on the government itself; it is not restricted to any individual, even the president. While the Mukura massacre is the most pronounced in Teso, with the tour it was revealed that Teso sub-region alone has hundreds of massacre sites and unmarked mass graves, where soldiers killed people and left their bodies in caves, latrines, and other secret places. In each burial place, dozens, even hundreds of bodies can be found. The people of Ngora District are mobilizing to designate a piece of land for a memorial site, where those bodies may be properly buried one day. According to them, this process of unearthing/exhuming secretly buried bodies may be part of a larger truth-telling process in Uganda that exposes the extent of violations committed.

The survivors reiterated the need to listen to victims’ voices. The former LCIII and founder of the Mukura victim/survivors’ organization highlighted the importance of listening to victims “talk for themselves.” He noted that unaddressed trauma is often a barrier to victims’ raising their voices. Peer counselling has helped many to bring out their issues, but many continue to “have something to talk” without the ability to bring it out.

A discussion emerged about the challenges of mixing politics and advocacy for survivors’ plights. Many politicians have visited Mukura with promises during campaign season, which are not followed through. One person observed that victims and survivors will not trust someone who they suspect is collecting information from them for “personal gains” in the political sphere. However, another participant argued that political parties, civil society organizations, and even development partners are all playing politics; so all-transitional justice work is therefore politically engaged in some way. The issue is not to separate work with survivors and victims from politics, but to ensure that all leaders commit to addressing “the reality on the ground” as their top priority.

Following the tour, Wachira Wachere, an activist survivor from Kenya addressed the survivor group, sharing his experience working in a victims’ movement in Kenya. He urged the survivors to always organize themselves to conduct advocacy, confrontation, and negotiations with the government. He described cooperative societies as a resource for building sustainable support structures for victims. Finally, he argued that memorialization is critically important for shaping a future without a repetition of the violence undergone in these communities.

The survivors mentioned the challenges of reintegrating men and women who were formerly abducted back into their communities. Chief Jeremiah listed several challenges to reintegration. One being the failure to sensitize communities about the reintegration packages given to returnees which led communities to reject the returnees on the basis that they were being rewarded for “doing the wrong thing.” A second one is that the families of women returning with children born in the bush welcome their daughters and sisters back, but reject those women’s children, arguing that they should be supported by their fathers’ families, even though men used fake names in the bush, making them difficult to trace.

He also observed that most people receiving amnesty were abducted; they did not choose to rebel against the government. For that reason, one woman refused to apply for amnesty claiming that she was not a rebel but was abducted; instead, she wants to take the government to court for failing to protect her. In conclusion, he stated, “There have been challenges with those returning home at the family level, community level, and government level.”

When Tafakari Forum participants reflected on their visit to Mukura, Lira and Gulu many commended the unity, hope, and dedication to achieving redress that they saw among the survivors. Participants also mentioned seeing evidence of continued effects of trauma on many community members and fear about the present-day political ramifications of sharing the truth of their experiences. Nevertheless, they observed a “yearning for national reconciliation from members of the community,” referencing several statements by community members in Mukura that future generation should not endure what they had. Many of the Tafakari Forum participants reflected on the fraught relationship between politics and of transitional justice processes in Mukura. On that point, it was argued that, “Most important for us is to know, How do we support this community as they’re going through this? It’s not a straight line; it’s not a smooth journey. It’s going to be hijacked and captured by many other dynamics, how do we as communities make sure we are aware of that?” In short, by getting out of their comfort zone at Munyonyo to Mukura to Gulu via Soroti-Lira, participants at the first East African Tafakari Forum had their own understanding of transitional justice challenged.

* Ouko Eunice Wambui is Programme Assistant, Conflict Transitional Justice & Governance, Refugee Law Project.

* THE VIEWS OF THE ABOVE ARTICLE ARE THOSE OF THE AUTHOR/S AND DO NOT NECESSARILY REFLECT THE VIEWS OF THE PAMBAZUKA NEWS EDITORIAL TEAM

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Situating transitional justice in the context of South Sudan

Wani Mathias Jumi

2014-11-18

http://pambazuka.net/en/category/features/93434


cc VOA
Africa’s newest nation has been engulfed in violent conflict for a year now. It is sad that the freedom struggle that lasted so long has not translated into quality life for the majority of the citizens. The root causes of this must be addressed – and they have everything to do with failed leadership.

Superficial and politically massaged transitional justice processes for South Sudan cannot bring lasting peace and co-existence in the country that is tribally and ethnically fragmented. The recent fighting among civilians even in UN camps in Malakal, Juba and Kakuma Refugee shows clearly how angry the people are against one another. Any form of prescribed mechanism must be based on a clear understanding of the root causes of the mistrust amongst the communities of South Sudan. The country presents its own unique features and historical facts that cannot be ignored in a meaningful transitional justice process.

The indicators suggest that a copy and paste prescription of any transitional justice mechanism from the globe will not only fail but may even exacerbate the problem further. The people of South Sudan have been at war with Sudan since 1955 because of bad leadership and marginalization. It is not different today as corruption, lawlessness, tribalism and blatant disregard for institutional processes are now threatening the very existence of the new nation. It is a nation where many illegally acquired small arms are in the hands of civilians. About 70 percent of the people are illiterate with no capacity to hold government accountable.

Instead of focusing on nation building that should have been founded on reconciliation and unity to advance the aspirations of the people, the leaders forgot all the injustices, human rights violations that the people went through for over 50 years. They chose to build the nation on a false cohesion, which proved illusory. Apart from mere rhetoric, there has never been any genuine commitment to nation building and reconciliation even in the face of apparent disunity and misdirection of the country by the leaders.

Visionary leaders such as the late Meles Zenawi of Ethiopia expressed concern about the plight of the people of South Sudan when he noted that the government of South Sudan and the ruling party had lost its vision in 2009. The country was ranked for two consecutive years by the Fund for Peace as a failed state but these early warnings were politically resisted, with the leadership branding such indicators as originating from people who were meddling in the affairs of a sovereign state and those who did not wish the country well.

It is shocking that in the 21st century where everybody is busy fighting terrorism, Ebola, tsunamis, mudslides and earthquakes, South Sudan is busy killing her own people. Life is destitution for many people in South Sudan as there are no functioning hospitals, no schools, no food, no clean water and above all no security of the person. The people have nothing to lose in a country described as very rich in resources. The leaders of South Sudan should know that even in the Bible, Jesus made it clear that they are to “serve not to be served”.

Politicians have lied to the people of South Sudan about the war and continued to incite them along tribal lines without examining the extent of damage their actions and inactions cause to the people. For those of us who are Catholic, when we confess, we are required under our faith to confess “what we have done and what we have failed to do” for us to be forgiven by God. This confession is a sign of guilt and remorse. Our leaders must boldly come up and apologize to our people for all the wrongs they have committed through their actions and failures.

To achieve genuine reconciliation which safeguards peace, those tasked with the duty to mend the broken communities must go and camp in those communities for the period these issues are being resolved. It should not be a fly in and out process that keeps breaking in the middle. Unity of leaders must be exhibited and any process of reconciliation must begin with informally talking to the people. The leaders in government and the communities must go for a serious retreat, reflection and prayer led process by all faith leaders in the communities to bring a sense of admitting sin and remorse. They must go beyond their selfish interests and think about the people that the nation is greater than an individual.

Government must commit resources to purchase “only tents” and if anything the dialogues can be held under trees and leaders must go and be seen by the poor people who have not seen some of them since 1983. The leaders of South Sudan must regain trust of the people or else they must be ready to rule a fragmented nation.

Transitional justice is the only way to healing wounds, rebuilding trust, forgiveness, justice and satisfaction. It offers opportunity for the victims to speak to their tormentors, and opportunity for leaders to be held accountable and to genuinely apologize and ask for forgiveness from the people of South Sudan for introducing an unjustifiable war because of poor leadership and bad management of politics. It will all be meaningless unless transitional justice mechanisms are identifiable with the victims who must be the point of focus.

* Wani Mathias Jumi is an advocate and Secretary General of South Sudan Law Society

* THE VIEWS OF THE ABOVE ARTICLE ARE THOSE OF THE AUTHOR/S AND DO NOT NECESSARILY REFLECT THE VIEWS OF THE PAMBAZUKA NEWS EDITORIAL TEAM

* BROUGHT TO YOU BY PAMBAZUKA NEWS

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* Please send comments to editor[at]pambazuka[dot]org or comment online at Pambazuka News.


The site

Wachira

2014-11-21

http://pambazuka.net/en/category/features/93445


cc PZ
A reflective poem by a Kenyan activist who visited Mukura Massacre Memorial site in Soroti region of Uganda where on July 11, 1989, the 106th battalion of the National Resistance Army (NRA) allegedly rounded up 300 men from Mukura and other surrounding areas and incarcerated some of them in a train wagon. These men were suspected of being rebel collaborators against the NRA regime, but there is little evidence to suggest that most of them were anything other than innocent civilians.

THE SITE
We came, marched to remember the vanquished, our mortal enemy the date was six.

We also came, to retrieve from the wagons our sons to bury the date was the nineteenth.

We also came again, to campaign and to seek your vote, to remain in office, must have been in the year Twenty Eleven.

And so we came and reminded you of our sons, that our eyes were still wet with unwiped tears because of our sons numbered over sixty. We sat , anxiously waiting for an acknowledgement of what happened.

We also expected some form of repair to our damaged souls and so you dispatched your agents to wipe the tears of the loyal widows with thousands or did I hear millions?....to retain us in Office... No need to remember the dead, some of whom may not have been innocent anyway….. and must have died in combat…. In train wagons…

Then you hastily ordered the contractors to come up with something which they called Date Six

And also move with speed to equip the structure with books for the children…

Then I noticed that the structure call Date Six was crumbling under the weight of deceit and disuse.

I also heard that the area becomes flooded by both national and local party which completely obscures and befuddles what is it that the people should remember and what they should forget.

And so the two massacre memorials stand defiant and in mockery of each other… telling different stories of what really happened and what needs to be remembered or forgotten ..

(For more details about Mukura Massacre follow this link: http://tinyurl.com/mv2nvhs )





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