The State of Transnational Justice in Africa, By Jibrin Ibrahim
The need for transitional justice mechanisms is rooted in large scale violent conflicts that are multiplying atrocities and displacing communities. Africa, with its numerous wars, insurgencies and illegal mass killings by security forces has the largest need for the mechanisms today.
This week I am in Addis Ababa participating in the Third Africa Transitional Justice Forum organised by the African Union and the Centre for the Study of Violence and Reconciliation. Transitional justice refers to forms of judicial and/or non-judicial mechanisms used to redress massive human rights abuses. The mechanism, which was developed in the later part of the last century, became necessary due to the escalation of large-scale human rights abuses since World War II, beginning with the Nuremberg trials. The principles of transitional justice are rooted in basic and fundamental principles and instruments of human rights such as the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights and the African Charter on Human and Peoples’ Rights.
The need for transitional justice mechanisms is rooted in large scale violent conflicts that are multiplying atrocities and displacing communities. Africa, with its numerous wars, insurgencies and illegal mass killings by security forces has the largest need for the mechanisms today. Such violence has created a situation in which Africa hosts over one-third of the world’s forcibly displaced persons, with 6.3 million refugees and about 15.5 million internally displaced persons (IDPs). It was in this context that the African Union developed its Transitional Justice Policy (AUTJP) adopted by the Heads of State and Government in February 2019. The policy addresses the issues of prosecutions of those responsible for violations of human rights, the establishment of truth commissions that clarify the causes and consequences of past abuses, the provision of material and symbolic reparations for victims, and institutional reforms to guarantee non-recurrence of conflict. The policy provides a framework and model for Africa’s conceptualisation of transitional justice, which is not limited to formal processes but also prioritises informal processes and traditional justice approaches, ethno-cultural nuances to justice, socio-economic and developmental dimensions of peace and justice.
Many African countries have implemented transitional justice processes to address the consequences of conflict, which had gross human rights violations. Truth commissions have been set up in South Africa, Sierra Leone, Morocco, Liberia, Togo, Côte d’Ivoire, Kenya, Tunisia and more recently, The Gambia. Accountability mechanisms such as international tribunals and special courts for Rwanda and Sierra Leone; and innovative local and traditional justice practices such as Gacaca in Rwanda, Magamba spirit mediums in Mozambique, Fambul Tok in Sierra Leone, Bashingatahe in Burundi and Mato Oput in Uganda, have been established.
Today, Nigeria has an urgent need for such an exercise. It would be recalled that President Olusegun Obasanjo set up the Human Rights Violations Investigation Commission, also known as the Oputa Panel in 1999. It had the mandate to investigate human rights violations during the period of military rule from 1984 to 1999. It was also supposed to propose mechanisms for the reconciliation of communities previously in conflict. The Commission submitted its final report in 2002 but as is normally the case in Nigeria, nothing came out of the process. This is unfortunate as the Commission received up to 10,000 victim testimonies and heard 150 of them during a one-year plus public hearing. Currently, the Boko Haram insurgency, widespread rural banditry and conflicts between farmers herders are placing the need of a transitional justice initiative high on the agenda.
In reviewing challenges encountered so far, the Forum emphasised the importance of redistributive or socio-economic justice – against the backdrop of Africa’s history of historical injustice through structural inequality and gross human rights violations.
The Centre for Democracy and Development has been working and advocating for the establishment of a transitional justice mechanism to address violence, death and destruction provoked by our numerous conflicts. The governments of Zamfara and Katsina States are currently pursuing mechanisms to seek an end to violence and commence the process of reconciliation.
After violent conflicts, reparation is always a difficult problem for transitional justice. The damage and wounds created by violence are so deep and devastating that they cannot really be repaired. Nonetheless, society must find ways and means of moving forward and Africa has implemented various reparations programmes and initiatives over the past three decades to address the consequences of conflict.
The idea has been to place victims at the centre of transitional justice processes, to listen to their experiences and voices and seek pathways to addressing the damage done to them. Establishing the truth of what had been done to victims is always the starting point and the agenda of what could be done should always draw from their narratives and demands. There were extensive discussions on drawing from cultural practices of forms of justice, forgiveness and compensation for victims.
In reviewing challenges encountered so far, the Forum emphasised the importance of redistributive or socio-economic justice – against the backdrop of Africa’s history of historical injustice through structural inequality and gross human rights violations. The South African generation that has been born free is today up in arms against fellow black Africans because they are still in the midst of misery. They did not see apartheid and too easily turn to those they see around them and vent their anger and frustration on them. Sadly, they miss the point the that these African neighbours were not the authors of their misery and the South African Truth Commission did not address these wider issues. In South Africa, Liberia and Namibia, the issue of inequality and land reform is very much on the agenda.
Justice and Accountability are central to transitional justice processes. From the International Criminal Tribunal of Rwanda, the Special Court of Sierra Leone, the Special Criminal Court in the Central Africa Republic and the yet to be established Hybrid Court of South Sudan, Africa has also embarked on accountability mechanisms in pursuit of retributive justice against perpetrators of international crimes and gross human rights violations. Within this context of justice, issues of amnesties, plea bargains, pardons and alternative forms of punishment have been under scrutiny and severe criticism. The African Union policy offers benchmarks, requirements and conditions for amnesties and others within a context of transitional justice.
The central objective of transitional justice is, of course, reconciliation and the rebuilding of trust and social cohesion. This is very difficult as it often requires forgiveness for people who have done great harm. Refusal to reconcile could however lead to a recurrence of violence and even more harm.
Africa’s normative framework provides recognition of the human (individual) and people (collective) dimensions of rights through the African Charter on Human and People’s Rights, also known as the Banjul Charter. There is need to also address both the individual and collective consequences of conflict and violations through transitional justice. The African Union policy, therefore, addresses the individual and collective dimensions of conflict and oppression.
The central objective of transitional justice is, of course, reconciliation and the rebuilding of trust and social cohesion. This is very difficult as it often requires forgiveness for people who have done great harm. Refusal to reconcile could however lead to a recurrence of violence and even more harm. The issue of truth-seeking and truth telling is only a beginning and could lead to the evolution of pathways to reconciliation. The wounds are deep and psycho-social support to address the trauma suffered by victims but also the perpetrators of violence are crucial.
Rebuilding social cohesion is even more difficult because the existence of high levels of violence is itself an indication that social cohesion had broken down even before the violence. A long history of marginalisation, the enflaming of ethnic and religious divisions, and hate speech would have disrupted social cohesion even before the violence began. Memorialisation initiatives and programmes have been undertaken, to preserve the historical memory and instil a “never again” culture for the next generations – in terms oif school curriculums, national roads, monuments, museums and memorial sites are among the common memorialisation programmes and initiatives undertaken in Africa.
Africa’s history of authoritarianism and the derailing of democracy after independence have often been the driving force in creating and sustaining violent conflicts. The adoption and implementation of political and institutional reforms to consolidate democracy and protect rights is therefore important in sustain peace and nation-building. Diversity management and following the path of ethno-cultural justice are therefore important elements of transitional justice that enhance social cohesion.