Table of Contents
The quest for peace, stability and development in post conflict countries led to the idea of transitional justice. The African Union Panel of Wise report recounts how the end of the World War II, the Cold War and other civil wars that occurred post 1990 introduced a certain culture of impunity.
These wars unleashed violence against defenseless populations, led to human rights abuses, sexual violence, deaths and even led to the collapse of most states. Africa was not spared these civil wars.
Countries such as Rwanda, Mali, and Sierra Leone and just to mention a few were not spared the violence and atrocities that accompanied it. The havoc wreaked during these period necessitated international organization such as the United Nations and African Union to adopt transitional justice as a measure to find peace and justice in post conflict societies.
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Transitional Justice as defined by the United Nations refers to a full range of processes and mechanisms associated with a legacy of large scale violence past abuses, in order to ensure accountability, serve justice and achieve reconciliation. These may include Judicial and non- judicial mechanisms.
The International Centre for Transitional Justice a globally recognized body for Transitional Justice defined transitional justice as a set of judicial and non-judicial measures been implemented by different countries in order to redress legacies of human right abuse, these measures include criminal prosecutions, truth commissions, reparations programs and various kind of institutional reforms makes the claim that some scholars have analyzed transitional justice and reconciliation system by taking into consideration past incidence of injustice, human right violations and violence in post-conflict societies.
Tendaiwo P. Maregere corroborates this claim and argues that understanding transitional justice lies within the larger debate that after mass atrocities have occurred, justice have to be delivered to those who did not get it in the volatile period. According to the African Union, the objective of transitional justice framework is to ensure accountability after large scale abuse, promote justice, achieve peace and reconciliation.
Even though transitional justice model unites many different approaches, it principally consist of two main assumptions, first transition to liberal democracy, and second is truth commissions, trials, institutional reforms and reparation can contribute to fostering of the democratic rule of law and societal reconciliation.
The argument over the years which has featured in some scholarly writings is the efficacy of the various transitional justice methods and how it does contribute to peace, social harmony and justice in post conflict societies.
While some scholars propose restorative and reparation models of justice such as truth commission and customary justice systems, others propose the retributive or punitive justice model. Proponents of restorative justice makes the argument that it promotes the use of truth and reconciliation commissions of customary mechanisms for the purpose of rebuilding and restoring relationships.
Aubyn (2012) also reinforces the argument that restorative justice repairs, rebuild and restore damaged social relationships and socio-economic welfare as an integral factor in fostering sustainable peace.
One can mention the Truth and Reconciliation Commission in South Africa as an example of the restorative justice mechanism. The TRC was established by an act of parliament in South Africa under the leadership of the then President Nelson Mandela to offer amnesty to those who have admitted to committing crimes under apartheid and apologized. The essence of the TRC was to promote reconciliation and healing by lifting the veil of secrecy and to eschew punishment in order to encourage public confession participation.
Reparations as pointed by Minow, might include erection of monuments, memorial days, public amnesties, and special education programmes for children. The package can also include material property, compensation and counseling for the victims. In Cambodia, the government introduced the policy of national reconciliation and amnesties for the crime of the Khmer rogues in 1975-79. One can cite the Palava Hut in Liberia, National reconciliation in Ghana and the granting of Amnesty in Mozambique in 1992 after the civil war as how the restorative model has been deployed to achieve peace.
Despite it overwhelming success, some scholars have however critiqued the restorative justice modelmasked the question who is to judge when healing has occurred? And whether the restorative justice approach has met the expectations of their beneficiaries? Some scholars are of the view that reconciliation does not necessary lead to healing and forgiveness. Some have also made the argument that some of the restorative justice model is power based, autocratic in nature and focused on retribution.
In some cases the punishment is quite severe including banishment or revenge. Finally, there is also some criticism that granting perpetrators of atrocities amnesty may encourage a certain culture of impunity. There is a certain school of thought in Ghana which suggests that the aftermath of the national reconciliation commission which granted amnesty to the soldiers who committed atrocities during the revolutionary regime has emboldened most soldiers to perpetuate violence because they are of the conviction that the state will not demand accountability.
In Cambodia for instance, the inclusion of some former Khmer rogues in the government had led to absence of respect for rule of law and also continuous human right abuse. Nonetheless, Minow argues that the best approach to restorative justice is searching for the path between the extremes; between memory and forgetting.
On the contrary, advocates of retributive justice argue that perpetrators of atrocities should be held liable for their crimes. They believe restorative justice contribute towards reconciliation, reaffirms the concept of rule of law, encourages victims to have trust in the system and serve as a deterrent to will be abusers.
Nigel Biggar argues that any sense of injustice if left unaddressed has the tendency to fester among victims and future generations with victims developing more hatred for the perpetrators and their descendants continues that injustice if let unaddressed may also lead to mistrust for the state for having failed in its duty to vindicate past victims.
Bibliography
- Aubyn, K. F. (2018). An Overview of Recent Trends in African Schorlarly Writing on Peacebuilding. Accra: African Peacebuilders Network.
- Minow, M. (1998). Between Vengeance and Forgiveness. Facing History After Genocide and Mass Violence(p. 199). Boston: Beacon Press. AU Panel of Wise, 2013.
- African Union Panel of the Wise Report, Research Report: Peace, Justice and Reconciliation in Africa Opportunities and Challenges in the Fight Against impunity (International Peace Institute, 2013).
