Transitional Justice in Africa: Relevance and application for Tunisia, Egypt, Libya and others

June 14, 2011

By Belachew M Fikre, Lecturer at Addis Ababa University, Institute of Human Rights

The current web of popular uprisings challenging authoritarian rules in North African states (Tunisia, Egypt, Libya to cite but three) and in the wider Arab world revitalises transitional justice mechanisms as tools of addressing past wrongs. While former president of Egypt Hosni Mubarak has already been charged with various crimes, president ben Ali is also due to be brought to justice very soon. And no doubt Colonel Muammar Gaddafi Gadhafi together with his family aides would follow suit.

Transitional justice implies the presence of both transition from authoritarian rule to democracy and the rendition of justice as a sign for renewed future. Thus, it presupposes both ‘political change’ and ‘legal responses to confront the wrongdoings of repressive predecessor regimes (Tietel 2003, p69).

While it is traced back to the aftermath of World War I, its relevance and application has become more pronounced in the post-cold war period (Tietel, p 70) in relation to Apartheid South Africa, former Yugoslavia, Rwanda and East Timor. Now as we witness former presidents of Egypt and Tunisia face trials for their past wrongs after being forced to step down by popular demands, once again a call is made for an all round precautions that the investigations, prosecutions and punishment of those personalities must comply so that there is a genuine transition to a better future.

As the geopolitics of conflict shifted from inter-state wars to intra-state civil wars affecting predominantly the newly liberated states in Africa, the nature and purposes of transitional justice, which primarily focused on retribution, also expanded to embrace the other aspect of justice, which is restoration. In other words, it is considered no more desirable to exclusively focus on the perpetrator to realise a transition that addresses the past in a manner that would not repeat itself. When the predominantly reconciliatory transitional justice processes took place in the aftermath of Apartheid South Africa, little has been done to redress the unjust resource distribution and that same factor remains a challenge to its current social fabrics. Similarly, as these former leaders of Tunisia and Egypt are brought to justice there is a need to seize the opportunity of justice rendition that does not merely rely on retribution, but also to restoring the socio-economic injustices that their regimes had perpetuated.

Transitional Justice – conceptualised as victim oriented and at the same time applied to hold the perpetrators to account for their wrongs– is undoubtedly relevant for present day Africa. However, there needs to be at least three relevant premises that this conclusion can rightfully be drawn from.

Premise 1: A genuine transition to democratic governance

Court-based justice, truth and reconciliation mechanisms or a combination of both would be handled only where there is a genuine transition to democratic governance. An authoritarian rule’s justice would attract less credibility and cannot guarantee non-repetition of the past. In most of the African states, regime change is taking place by the usual means that the ousted authoritarian rule had assumed political power. In these circumstances, the legitimacy of the newly self-appointed power holders would remain questionable and any of the transitional justice measures could be dubbed as victor’s justice than anything more.

The new regime has to show its commitment and take concrete measures in re-establishing credible and impartial democratic institutions such as an independent judiciary, electoral board, human rights commission and the office of the Ombudsperson. In this respect, therefore, those nations that managed and would manage to oust the authoritarian regimes through popular uprising must institutionalise and harness democratic governance as a precondition to the fruition of the transitional justice processes.

Premise 2: National ownership 

Secondly, transitional justice process is a relatively prolonged project especially where systematic violence and repression had been widely practiced by former regimes. Moreover, it is also an expensive socio-political project that most conflict-ridded states hardly afford to finance in their own. This fact, however, must not serve as a pretext to ‘disown’ the process in favour of extensive involvement by donor countries and institutions. Apart from addressing the past wrongs, transitional justice processes have also the purpose of re-instituting or instituting credibility among the public on the public institutions.

This is possible where local capacity of the formal judicial system is strengthened, and if needed by harnessing the traditional, home-grown justice mechanisms. In Rwanda, for instance, the use of the Gacaca Courts has proven to be extremely effective, though cannot by any means be tagged as perfect (Daly 2002, p 356). When looked at from its potentialities for building lasting peace, transitional justice is best handled by national court systems both formal and informal with financial support to that end from the donor community. Otherwise, vying for the International Criminal Court’s warrant or for the establishment of ad hoc Hague tribunals would deliver little if societies emerging from prolonged conflict are to proceed forward by healing their wounds of the past.

Premise 3: Holistic in approach

The third premise that informs the relevance and effectiveness of transitional justice mechanisms for African people relates to its scope. For many decades the restorative purposes of justice have been relegated and instead retribution has been the exclusive focus. The Nuremberg trials and the subsequent movements for the establishment of an International Criminal Court had primarily driven by retributive justice as their goal. The ultimate purpose of transitional justice being bringing societies to terms with their past, victims must be provided with some form of redress. It is no doubt that no amount of monetary compensation would bring back the loved ones who had been victimised and even at times this monetary compensation is criticised as ‘blood money.’

Nevertheless, where so much looting of and damage to property had been done, leaving the disturbed status quo as it is cannot bring those affected to terms with their past. Moreover, restoration should not necessarily be limited to monetary compensation. Redress could also be done by restoring victims’ dignity via truth-telling, public declaration of apologies as well as restituting properties that were unlawfully taken from them.

The South African transitional justice process, unique process by far even by international standards, had focused on truth and reconciliation undermining the relevance of some form of retributive justice. The competition between individual and collective accountability, justice and truth telling is never an easy decision to make. Drawing lessons from East Germany and South Africa, Maryam suggests that even though collective accountability is less costly, it has to be complemented by individual accountability ‘if a society is to successfully put its authoritarian past behind it (Maryam, 2001, p 141). She further noted that ‘at the very least, those who have committed the most egregious crimes, such as genocide and torture, should be individually tried and punished, according to the norms of international law’ (Ibid).

The African continent has witnessed and is witnessing the worst forms of atrocities and human rights violations under dictatorial regimes. The current ubiquitous surge of popular voices bears witness to the unbearable political environment that the youth has openly started to challenge. There is thus a need to address those wrongs and taking those three points into account at a minimum serves to guide the process of transition to a sustained peace which is rooted in just social relations and the rule of law.

References

Tietel, Ruti G., (2003), ‘Transitional Justice Genealogy,’ Harvard Human Rights Journal, Vol 16, No 1, pp 69-94

Daly, Erin (2002), ‘Between punitive and reconstructive justice: The Gacaca courts in Rwanda,’ N.Y.U. Journal of International Law and Politics, Vol 34, pp 355-396

Schabas, William A., (2005), ‘The Rwandan courts in quest of accountability: Genocide trials and Gacaca courts,’ Journal of International Criminal Justice, Vol 3, pp 879-895

Kamali, Maryam, (2001), ‘Accountability for human rights violations: A comparison of transitional justice in East Germany ad South Africa,’ Columbia Journal of Transnational Law, Vol 40, pp 89-142

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