The dynamics of contemporary conflicts reveal the difficulties inherent in countries transitioning from conflict to peace and has given birth to transitional justice. The latter is the field of study where justice is not relegated to criminal or retributive justice only but to a holistic range of processes, the ambit of which includes accountability, truth recovery and reconciliatory processes. Kofi Anan former UN Secretary General defines transitional justice as the “ full set of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuse, in order to secure accountability, serve justice and achieve reconciliation.” In keeping within these processes and within this framework, particularly with regard to Africa, there has been resurgence in the use of traditional or local justice mechanisms. In this blog I will thus briefly attempt to highlight the political contingencies that certain states face, which catalyze the use of traditional justice mechanisms and make it so popular within the African transitional justice landscape. I will contend that in some instances traditional mechanisms can adequately address massive human rights violations and establish peace and reconciliation in post-conflict settings. I suggest that the value of traditional justice within politically laden contexts is that they act as catalysts for the promotion of unity. They draw on cultural and religious linkages of interconnectedness that are of value to many African societies, such as the way in which ubuntu was ingrained in the TRC process and the traditional strands of Gacaca conformed into a modern version of Gacaca. This therefore, arguably creates a more “culturally familiar and socially secure” space for people to participate in.
Drawing on the practices of many African states, since the 1990’s a plethora of judicial and non-judicial justice mechanisms have been used which has served as a testing ground for the development of transitional justice. In terms of non-judicial justice mechanisms, there have been a variety of truth commissions used, as well as a number of traditional and community based approaches employed. The use of truth commissions was used in Uganda, Zimbabwe, Nigeria, Ghana and South Africa over the years, going as far back to the 1970’s. Some other mechanisms include, the Gacaca courts in Rwanda, the role of the Magamba spirits in central Mozambique, the use of Mato Oput in Northern Uganda, the tradition based practices of the Kpaa in Sierra Leone and the institution of Bashingantahe in Burundi. Ideally the ultimate goal of most of these mechanisms has been to attain some sort of political reconciliation and thus ultimately peace.
Despite the holistic propensity that many of these mechanisms exude it is essentially noteworthy that where traditional and local justice mechanisms contribute to peace building they also have the potential in some instances to undermine the legality of the justice process. This happens when for instance, they negatively marginalize or impact vulnerable groups such as women or children and in some cases those in a given community, who feel dissatisfied with the type of justice being dispensed with. Needless to say, these shortcomings require careful thought and recalibration for future avoidance. The status quo that is currently deemed as effective justice follows the line of reasoning that prosecution and hence retributive justice is the only adequate source and avenue necessary to exact accountability and appease victim’s rights after prolonged civil wars and mass conflict.
However, complex political realities in many post conflict societies can in many instances subvert the desire for prosecutions, especially if violence resurges or threatens to spill over leading to further destabilizing consequences in recovering societies. Referring to the dynamics of conflicts in African post-conflict societies, Mahmood Mamdani and Thabo Mbeki, co-authors of the compelling op-ed entitled Courts Can’t End Civil Wars, suggest that volatile political processes need to be adjudicated on, by evaluating the issues and causes exacerbating a political situation. Political opponents then need to reach a political settlement through negotiations, which are acceptable to all parties involved. In their opinion mass violence is more political rather than criminal. They hold that political violence has a constituency and is driven by issues, not just perpetrators. However, other analysts point out that retributive justice is a critical component for long- term peace and stability, and that both the aforementioned authors ignore the long-term goals post-conflict societies should generate, namely, to ensure sustainable peace and development.
Despite the validity that both lines of reasoning present, it is clear that reconciliation is an individualized process, differing in each given situation. Furthermore, given the financial and human constraints facing many post conflict societies, reconciliatory efforts are sometimes difficult to achieve, especially because processes of justice imported from abroad, including reparation schemes, which tend to be very expensive. The use of alternative or traditional justice practices thus provides numerous advantages, which makes a significant impact on the transitional justice process. It’s accessibility inclusivity and propensity for legitimacy speaks volumes given the fact that most of the times these justice systems are based on reconciliation, compensation, restoration and rehabilitation, part of which makes it attractive within the field of transitional justice and peace building processes.
Furthermore, considering the fact that these mechanisms within the African context have been subject to change over the years through colonization, modernization, migration and civil wars, they have the potential to be more adaptable and flexible, especially in cases where they might have to respond to grave or serious crimes. Despite these advantages the adaptation of these mechanisms with international norms remains no easy process, given the fact that most African states are trying to strike the right balance between justice and political stability. Two prime examples that come to mind in this regard are the South African Truth and Reconciliation Commission, as well as the Rwandan Gacaca Courts.
The Truth and Reconciliation Commission of South Africa was one of the first ‘successful’ ventures used to address the atrocities taking place during the apartheid era. By incorporating restorative and or religious elements of Christianity and indigenous elements such as ubuntu, which based itself on elements of community, forgiveness, apology, and remorse, founders of the South African TRC, in particular Archbishop Desmond Tutu, set the tone for reconciliatory efforts in South Africa. South Africa’s choice of transitional justice tools included the use of a truth commission, coupled with the use of amnesty and prosecutions. Amnesty, in other words was only granted conditionally, on the grounds that an implicated applicant was in a position to provide full disclosure of past events transpired. In the event that such a person would be unwilling to disclose the truth, they would be subject to possible prosecution. Blanket amnesties were thus not granted. The Truth and Reconciliation Commission functioned by trading the truth for amnesty, and amnesty for truth. The TRC not only laid the foundations that paved the way for national reconciliation but foremostly enabled South Africans to co-exist alongside one another following the fall of apartheid which was surprising given the deep fractures that the apartheid system had given birth to in aspects of class, resources, and race.
Another pivotal alternative or traditional justice mechanism having substantial impact on unity and national reconciliation was the Rwandan Gacaca courts, which was set up to deal with the legacy of the Rwandan genocide in 1994. Popular perception deems Gacaca as traditional, static or indigenous justice, deeply entrenched in Rwandan society. However this is a mischaracterization of Gacaca. According to Phil Clark, Gacaca instead must be seen, as a dynamic enterprise that was designed specifically to meet the needs of the post-genocide environment. Seeing it as purely indigenous would therefore be wrong. Rather it must be viewed as an endogenous system, partly inspired by Rwandan culture but adapted to meet the various legal, socio-economic, and political problems arising out of Rwanda’s history of violence.
Assessing the impact of justice through the use of Gacaca in Rwanda has elicited a variety of mixed responses. Quantitative surveys show that since 2003, eighty percent of Rwandans said that they experienced individual healing as a result, whilst seventy percent were satisfied with the justice they had received post genocide. Indicators also suggest that inter-ethnic cleavages between Hutu, Tutsi and Twa were relatively reduced but still remained a challenge. Primary sources of divisions remained ethnic, political and economic ones with considerable emphasis placed on the latter, in other words, the gap between rich and poor was said to be divisive. Social cohesion had nonetheless improved considerably since the genocide. In other words, when assessed on a national level political reconciliation was no doubt achieved.
Gacaca, in other words, was a ‘dynamic’ innovative justice mechanism, which found a reasonably comfortable middle ground between traditional justice and conventional justice. Similarly it found middle ground between restorative justice and retributive justice. This has made it a popular specimen to emulate within the field of transitional justice based on the individual experiences of a country. Despite its cited flaws, it nonetheless managed to achieve political reconciliation and peace and chartered a way forward for national reconciliation in Rwanda.
Both the South African and Rwandan experiences reveal the complexities post-conflict societies face coming to terms with their pasts in order to find a middle ground between political compromise and a holistic type of justice. Justice, peace, and reconciliation remain necessary components for any successful transition to occur. It goes without saying that the benefits that such mechanisms have had for unity and peace building is significant given the complex political realities of both mentioned countries, however the use of traditional justice must still be assessed on a case by case basis by taking into account the broader political implications and ramifications that these mechanisms might hold for the relevant society and its victims concerned.