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Truth, justice, and reconciliation in Africa: Issues and cases

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Abstract

This essay identifies a number of problematic issues concerning transitional justice restorative justice in particular and suggests that they can be fruitfully explored through thoughtful examination of the truth-seeking projects of this issue's case countries: South Africa, Rwanda and Sierra Leone. One debate is whether political transitions genuinely require a unique type of justice or whether transitional justice results from a mere political choice which compromises justice. A second issue concerns transitional justice's goals. Related to this issue is the lack of clarity concerning the criteria for a successful transitional judicial structure. A third debate is whether truth commissions do actually bring healing and reconciliation among former enemies. Finally, there is a set of very practical concerns that need attention: what are the ideal balances between trials and truth commissions, domestic and international initiatives, efficiency and effectiveness?
Lyn Graybill is an independent scholar affiliated with the Center for the Study of Mind & Human
Interaction (CSMHI) and an adjunct professor at the Sam Nunn School of International Affairs at Georgia
Institute of Technology. She is the author of Religion and Resistance Politics in South Africa (Praeger,
1995) and of Truth and Reconciliation in South Africa: Miracle or Model? (Lynne Rienner, 2002). She is
co-editor with Kenneth W. Thompson of Africa 's Second Wave of Freedom: Development, Democracy,
and Rights (University Press of America, 1998).
Kimberly Lanegran is Assistant Professor of Political Science at Hood College. Her recent publications
are "Truth Commissions, Human Rights Trials and the Politics of Memory," Comparative Studies of
South Asia, Africa and the Middle East 25, no. 1, (2005) and "Confronting Human Rights Abuses:
Lessons from African Institutions." Journal of Development Alternatives and Area Studies 22, nos. 1 & 2
(2003).
African Studies Quarterly http://www.africa.ufl.edu/asq/v8/v8i1a1.htm
Volume 8 Issue 1 Fall 2004
AFRICAN STUDIES QUARTERLY
Volume 8, Issue 1
Fall 2004
Truth, Justice, and Reconciliation in Africa: Issues and Cases
LYN GRAYBILL AND KIMBERLY LANEGRAN
Abstract: This essay identifies a number of problematic issues concerning transitional
justice and restorative justice in particular and suggests that they can be fruitfully
explored through thoughtful examination of the truth-seeking projects of this issue's case
countries: South Africa, Rwanda and Sierra Leone. One debate is whether political
transitions genuinely require a unique type of justice or whether transitional justice
results from a mere political choice which compromises justice. A second issue concerns
transitional justice's goals. Related to this issue is the lack of clarity concerning the
criteria for a successful transitional judicial structure. A third debate is whether truth
commissions do actually bring healing and reconciliation among former enemies. Finally,
there is a set of very practical concerns that need attention: what are the ideal balances
between trials and truth commissions, domestic and international initiatives, efficiency
and effectiveness?
Pardon rather than punishment, or pardon for the many alongside punishment of the few, has
become a trend for transitional societies coming out of eras marked by intrastate conflict.
Restorative justice, which favors reconciliation among former foes over punishment of
perpetrators of crimes, has been increasingly applied since 1974, with truth commissions
implemented in approximately two dozen countries around the world. Most prominent among
these in Africa has been South Africa’s Truth and Reconciliation Commission, but Rwanda,
Sierra Leone, the Central African Republic, Ghana, Morocco and Nigeria have also embarked
on “truth telling” processes that emphasize reconciliation. Moreover, the Kenyan government
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recently announced that it will establish its own truth commission by the end of 2004, and peace
agreements in Liberia and the Democratic Republic of the Congo have provided for the
formation of truth commissions. These developments suggest that the idea of restorative justice
is not just a fad but represents an innovative approach for citizens of many countries wrestling
with the question of how to live with former enemies.
This essay identifies a number of problematic issues raised in the literature concerning
transitional justice in general as well as restorative justice in particular and introduces the three
case study countries highlighted in this special issue. In the articles that follow, authors analyze
transitional justice efforts in South Africa, Rwanda, and Sierra Leone and discuss lessons that
emerge.
ISSUES
During the ongoing wave of democratic transformations, one can observe a “paradigm shift” in
the means by which new leaders address their nations’ violent past.1 There is a new commitment
at both domestic and international levels to bring justice and healing to people who have
experienced gross human rights atrocities perpetrated by ousted regimes or rebel groups.
Political leaders and legal theorists have argued that learning the truth about past human rights
violations and punishing those responsible for them are prerequisites for the establishment of
democracy and respect for the rule of law. Thus, they call for structures of transitional justice
during an interim period to confront the crimes of the past in order to lay the foundations for
legitimate judicial systems and democratic norms. Such structures have included the ad hoc
international criminal tribunals for the former Yugoslavia and Rwanda as well as truth
commissions, hybrid UN-funded courts, and revived traditional judicial structures such as
Rwanda’s gacaca.
Transitional justice processes have inspired a growing field of study. Legal scholars tackle
theoretical and ethical issues surrounding transitional justice norms, participants and researchers
have analyzed a number of transitional justice institutions, and a small number of scholars have
published comparative studies.2 A survey of the literature reveals that a number of significant
issues concerning transitional justice and its structures continue to bedevil practitioners
attempting to implement it and scholars hoping to conceptualize or interpret it.
This essay highlights four such issues. First, there is disagreement over whether political
transitions genuinely require a unique type of justice—one that emphasizes reconciliation as
opposed to strict retributive justice—or whether transitional justice results from a mere political
compromise in which “justice becomes the casualty of a political calculation.”3 In short, are
structures of transitional justice only “second best” options? Second is the question of whether
processes of transitional justice have a consistent set of goals, with a related issue being the lack
of clarity within the literature concerning the criteria for a successful transitional judicial process
or specific structure. Third is the debate surrounding the oft-repeated assertion that truth
commissions can heal individuals and nations, bringing reconciliation among former enemies.
Fourth and finally, there is a set of very practical concerns that require attention, including
determination of what are the ideal balances between trials and truth commissions, domestic and
international initiatives, efficiency and effectiveness.
Scholars have not reached a consensus on whether the unique economic, social, and political
features of transitional periods legitimately demand a response to past human rights crimes that
favors reconciliation over retribution. Is the granting of conditional amnesty to those who
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confess to crimes before a truth-seeking body, for example, a political expedient that
significantly compromises justice? Or is it an appropriate policy within the context of the many
challenges facing a society in political transformation?
Ruti Teitel, for example, stresses the limited character of transitional justice and takes note
of the compromises to formal justice that it entails.4 Some scholars emphasize that political
compromises necessarily determine the formation, mandates, and operations of courts and truth
commissions, consequently limiting their effectiveness.5 Others do not see transitional structures
like truth commissions as inferior to formal court systems.6 They emphasize that transitional
societies face an array of challenges and therefore must ask different things of justice structures
than those asked of formal courts in established democracies. Transitioning societies may value
peace and reconciliation more than retribution. Therefore, restorative structures may indeed be
the best judicial option.7
Another difficulty concerns the goals transitional justice processes can be expected to
achieve. If transitional justice is inherently different from justice in established democracies, the
unique services it employs should be identifiable. If this process is implemented during a finite
period, the way in which transitional justice alters society should also be identifiable. Any
evaluation of the success of such institutions must be done with a firm understanding of the goals
of transitional justice, yet consensus on what these goals should be is largely missing from the
academic literature.
Elizabeth Evenson identifies four general goals of transitional justice: “providing for
individual criminal accountability, deterrence, and punishment, and establishing a common truth
about the past which can carry the society forward in a process of healing and
reconciliation.”8 However, she notes that the individual context of each country will shape its
specific goals. Likewise, Miriam Aukerman identifies five separate goals for any justice process
-- retribution, deterrence, rehabilitation, restoration, and condemnation/social solidarity -- among
which political leaders choose based on their societies’ unique needs and characteristics.9 We
believe that careful evaluation of specific structures is needed in order to discover what these
mechanisms actually achieve. Anyone seeking to evaluate mechanisms of transitional justice will
soon discover few criteria against which to judge them. However, Priscilla Hayner's work is a
notable exception. In her path-breaking comparison of truth commissions, she identified some of
their basic requirements. According to Hayner, truth commissions should: operate impartially
free of political interference, have adequate resources and access to the information they deem
necessary, be implemented as quickly as possible after the period they are expected to
investigate, work for a limited specified period, and be empowered to make widely and
expeditiously distributed recommendations for further action to governments with the
expectation that those recommendations will be considered seriously.10
Hayner proposes examining three distinct elements to evaluate the success of a truth
commission: the commission’s process, product, and eventual impact. The process is judged
by “the degree to which it engages the public in understanding unknowns (or in admitting that
they have been denied) . . . whether it gains full participation from all actors in the course of its
investigations, including former perpetrators; and whether its work is positive and supportive to
victims and survivors.”11 The commission’s final written product should be evaluated according
to “the extent of truth that is revealed, as well as its proposals for reparations and
reform.”12 Regarding its impact, Hayner notes that “the degree to which the commission’s work
contributes to long-term reconciliation, healing, and reform will be determined in large part by
whether perpetrators or state officials acknowledge and apologize for wrongs, whether and how
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the commission’s report is distributed and put to use, and whether its core recommendations are
implemented.”13 These guidelines pertain exclusively to truth commissions. There is no
consensus concerning even a rudimentary set of criteria against which to measure the success of
other transitional justice institutions, such as ad hoc international criminal tribunals or hybrid
courts.
A third problem is that scholars and practitioners engage in assertions about what these
structures can do but rarely test those assumptions. Common wisdom asserts that truth
commissions promote individual healing and reconciliation, which leads to national healing and
reconciliation, which in turns provides a bedrock for democracy. But, as Tristan Borer notes in
this issue, no one has yet proven that truth commissions secure their supposed benefits, such as
healing, truth, and national reconciliation. In fact, a few scholars are beginning to conclude that
the evidence is decidedly mixed.14 Brandon Hamber and Richard Wilson, for example, reject
entirely the metaphor of national healing arguing, “Nations do not have collective psyches which
can be healed, nor do whole nations suffer post-traumatic stress disorder and to assert otherwise
is to psychologize an abstract entity which exists primarily in the minds of nation-building
politicians.”15
In an important study of South Africa, James L. Gibson has tested the “truth leads to
reconciliation” assertion head-on using extensive surveys and social science analysis. He
concludes that the South African Truth and Reconciliation Commission did indeed succeed in
convincing a majority of South Africans across the political spectrum that all sides were guilty of
human rights violations and in turn suffered from violations. This provided them with a common
interpretation of the apartheid era, which is serving as a basis for reconciliation. However, the
process is far from complete because political tolerance, one of Gibson’s measures of
reconciliation, remains scarce in South African political culture.16 Similar studies of other
structures of transitional justice are needed to enhance our understanding of their merits.
Finally, a number of practical questions about the choice of transitional justice mechanisms
require additional attention. One fundamental question asks under what conditions should a
society turn to trials, or truth commissions, or both. Miriam Aukerman sees a “prosecution
preference” at work in the international legal community.17 The work of Diane Orentlicher
reflects this perspective although she does note that there are conditions under which prosecuting
those in the past regime accused of human rights violations is unwise.18 This approach argues
that support for the rule of law and human rights norms can not be established among a society
while an impotent judicial system allows prominent criminals to enjoy impunity.
In contrast, other observers, particularly those who argue that retribution is only one of the
goals of transitional justice mechanisms, see wisdom in preferring restorative judicial bodies.
Brian Walsh, for example, concludes that prosecutions of human rights violators can jeopardize a
reconciliation process.19 Other writers are concerned that the bipolar nature of trials, in which
prosecutions tend to make a clear distinction between the innocent and the guilty, makes them
entirely inappropriate for redressing the systemic exploitation and violence which many
transitioning societies have experienced.20 Elin Skaar concludes that whether a new government
chooses truth commissions, trials or nothing, “depends on the relative strength of demands from
the public and the outgoing regime, the choice tending towards trials as the outgoing regime
becomes weaker and towards nothing as the outgoing regime becomes stronger, with truth
commissions being the most likely outcome when the relative strength of the demands is roughly
equal.”21 Her study explains why one option is selected over another but does not address the
issue of whether that option was the best possible choice.
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Some writers, particularly those who share Martha Minow’s realization of “the
incompleteness and inescapable inadequacy of each possible response to collective atrocities,”
suggest that structures of retributive and restorative justice can coexist during a
transition.22 Elizabeth Evenson believes that with careful planning, coexisting trials and truth
commissions can be complimentary. She argues that “truth commissions can augment the work
of prosecutions in establishing accountability for widespread human rights abuses.”23 Further
research is needed to determine under what circumstances two structures may indeed be better
than one and how to achieve cooperation between them.
What should be the appropriate role for the international community in establishing
structures of transitional justice? The spectrum of recent judicial responses to human rights
abuses runs from external justice, such as the extreme universal jurisdiction asserted by the
Belgian legislature in its proposed prosecution of Israeli Prime Minister Ariel Sharon through the
United Nations’ International Criminal Tribunals and the International Criminal Court, to the
“internationalized internal processes” of the UN-funded courts for Sierra Leone and East Timor,
to finally the entirely domestic processes at the other extreme such as South Africa’s truth
commission and Rwanda’s gacaca.24 Neil Kritz addresses the question of how to determine
when international or national mechanisms are required. For Kritz, “the best scenario would be
for the international community to provide appropriate assistance to enable a society emerging
from mass abuse to deal with the issues of justice and accountability itself.”25 However, since
local judicial structures are usually decimated or compromised where societies have recently
experienced widespread abuse, it is often “incumbent upon the international community to take
on the task of accountability for the abuses in question.”26 Even if one shares Kritz’s
commitment to building domestic judicial competencies, assessing the appropriate balance
between domestic and international actors in any specific context will be tricky.
Finally, empirical studies of specific courts and commissions are needed to identify
operational lessons. In a recent study, Joanna Quinn and Mark Freeman surveyed individuals
who worked in the truth commissions of Guatemala and South Africa. Quinn and Freeman
synthesized the observations into lessons learned concerning commission mandate and structure,
data collection and public hearings, and information management and outreach to the public.27
The authors distill the most common themes running through the practitioners’ assessments: “we
needed more time, greater resources, better staff, better training, better internal coordination, and
better management; nevertheless, it was an intense and remarkable experience, and we partially
achieved some important objectives.”28 If we are to see more efficient and effective structures in
the future, researchers should seek out similar lessons from the staffs of other transitional justice
structures.
CASES
We turn now to the three African experiments of transitional justice examined in this issue –
South Africa, Rwanda, and Sierra Leone. We identify for each country some of the contentious
issues discussed in the previous section.
South Africa
South Africa’s Truth and Reconciliation Commission (TRC) is arguably the continent’s best
known example of restorative justice. Established in 1995, the TRC was charged with
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investigating gross human rights abuses that occurred between 1960 and 1994 so as to create as
complete an accounting as possible of the atrocities of that period. Perpetrators were offered
amnesty in exchange for full disclosure about their past crimes. To a significant degree, this was
part of a political compromise between the African National Congress and the outgoing
apartheid government led by the National Party that was deemed necessary for a peaceful
transition to democracy.
South Africa’s version of restorative justice emphasized reconciliation between perpetrators
and victims built ideally on a perpetrator’s repentance and a victim’s forgiveness. Ultimately, it
was hoped, the South African nation as a whole would likewise become reconciled. Although the
TRC’s task was not officially framed in religious terms, the dominant role of Chairman
Archbishop Tutu meant that his theological view of reconciliation often trumped other views.
This was aided by the large number of commissioners who came from the faith community.
It has been argued that two features of South Africa’s religious culture supported the TRC’s
emphasis on forgiveness, rather than punishment: Christian theology and the traditional concept
of ubuntu.29 The Christian admonition to forgive one’s enemies and embrace the sinner within
the family of God was widely accepted among the largely Christian South African
population.30 Due in part to the considerable role many church organizations played in protests
against apartheid, the teachings of the church retained relevance for many South Africans.31 The
concept of ubuntu was also used to legitimize the TRC’s call for reconciliation. Difficult to
translate precisely, ubuntu encompasses the notion of “humaneness” or “humanness.” A
common Xhosa expression states, “Umuntu ngumuntu ngabanye bantu,” which translates as
“People are people through other people.” Thus, ubuntu emphasizes community over individual.
As John Mbiti explains, “Whatever happens to the individual happens to the whole group, and
whatever happens to the whole group happens to the individual. The individual can only say: ‘I
am because we are, and since we are, therefore I am.’”32 This belief in the indivisibility of
humanity, it is argued, creates a capacity for forgiveness. Complete assessments of the TRC will
require extensive testing of the degree to which the truth commission resonated with South
Africa’s religious culture, a project begun by Audrey Chapman and Bernard Spong for the
American Association for the Advancement of Science.33
How did the truth commission work? At the Human Rights Violations Committee hearings,
a select group of victims testified publicly about how they had suffered. About one tenth of the
20,000 deponents testified – a very small number out of a national population of 43 million.
Still, anecdotal evidence suggests that for many who addressed the commission, the value of
telling one’s story before a supportive audience was significant. Referring to the psychological
value of testifying, one witness said: “When the officer tortured me at that time in John Vorster
Square, he laughed at me: ‘You can scream your head off, nobody will ever hear you! ‘ He was
wrong. Today there are people who will hear me.”34 Commissioner Mary Burton agrees that
giving public testimony had been healing for many survivors: “The right to be heard and
acknowledged, with respect and empathy, did contribute to a process of healing in many
cases.”35
A second committee, the Amnesty Committee, held hearings for those who admitted having
committed crimes. Approximately 7,000 applicants applied for amnesty. However, many were
common criminals hoping to convince the commissioners that they had political -- not criminal --
motives, and only a few were top leaders of the apartheid system. Nearly half of the applicants
were from the African National Congress.36 Contrition was not a requirement for amnesty, and
indeed many applicants did not apologize for their actions. In the end, amnesty was granted to
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approximately 16% of the applicants.37 Thus, out of a population of 43 million people, only
about one thousand individuals acknowledged their responsibility for apartheid’s crimes,
receiving amnesty and reintegration back into society.
Scholars debate the advisability of offering amnesty. In promising amnesty to apartheid
killers, did the ANC choose a more comfortable political expedient and found a new democracy
on a flawed judicial response to a systemic crime against humanity? Mahmood Mamdani argues
that the TRC resulted in “an institutionally produced truth, as the outcome of a process of truth-
seeking, one whose boundaries were so narrowly defined by power and whose search was so
committed to reinforcing the new power, that it turned the political boundaries of a compromise
into analytical boundaries of truth-seeking.”38 Did the government compromise justice in its
effort to provide an interpretation of apartheid crimes that would facilitate reconciliation among
the races? If so, is this a failure of transitional justice or a strength of such a response to
atrocities?
The South African case can provide empirical evidence to help scholars make more
informed evaluations of transitional justice. However, such work will require identification of the
means to judge the TRC’s impact. For example, how can we know whether reconciliation
emerged from the TRC? What does reconciliation look like? Who becomes reconciled?
In her contribution to this special edition, Tristan Borer addresses this challenge directly by
identifying the multiple meanings of reconciliation used by people inside and outside of South
Africa’s TRC. She demonstrates that the TRC’s founding documents, as well as its final report,
failed to define clearly the kind of reconciliation the commission was charged with building. She
finds two models of reconciliation permeating the commission’s statute and report.
“Interpersonal or individual reconciliation,” in which victims and perpetrators of gross human
rights violations have their relationships restored with the victims being healed, is one goal
which the commission sought to achieve. Yet, the commission also strove to hasten “national
unity and reconciliation” in order to create a nation “democratically at peace with itself.” Borer
argues that the lack of clarity hampered the commission’s work and has affected the way it has
been judged. She finds that while the TRC was empowered to contribute primarily to “national
unity and reconciliation,” the greater popular expectation was for the TRC to foster
“interpersonal or individual reconciliation.” The unfortunate result of this dichotomy is that “the
TRC is most likely to be judged in a way that makes it least likely to appear successful.”
Borer draws cautionary lessons for any future effort to analyze similar truth-seeking
transitional structures. She emphasizes testing the argument that truth leads to reconciliation,
rather than simply asserting it. Testing requires a clear definition of reconciliation and the
identification of ways to observe it. Only then, she asserts, can any future truth commission
tailor its work to achievable goals that scholars can evaluate according to clear criteria.
Also in this volume, historians Jacobus du Pisani and Kwang-Su Kim evaluate the TRC’s
work as a process of historical research, and its final report as an interpretation of the apartheid
period. They identify many significant flaws in the TRC’s work, such as its dependence upon
subjective truths submitted in unverified individual testimony, but also show how these very
shortcomings bring constructive challenges to the authority and relevance of history as an
academic discipline. They see the TRC as initiating a “democratized history-making process” in
South Africa in which public history and individual experiences receive greater prominence, and
“interest in the possibilities of history” is revived.
Joining the debate over the appropriate goals for truth commissions and what they
ultimately contribute to reconciliation, Du Pisani and Kim argue strongly that truth commissions
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ought not to be expected to uncover “the truth” about a violent past. From the outset “the TRC
had to pursue historical truth not for its own sake, but in the service of reconciliation and nation-
building,” which therefore imposed “a discursive framework on testifiers” and the way in which
their evidence was interpreted in the commission’s report. Du Pisani and Kim lament that the
TRC’s work gave the impression of a nation having achieved closure after its apartheid past.
Rather, they call upon historians to remain “committed to the never ending debate of history and
not to the type of closure sought by priests and politicians.” They conclude that while truth
commissions can dramatically enliven a society’s confrontation with its past, they can make only
a partial contribution to using history as “an essential tool in re-defining national identity.”
Rwanda
At the same time as South Africans went to the polls to elect their first democratic government,
Rwandans 2,000 miles to the north were perpetrating the fastest genocide in recorded history.
Beginning in April 1994, Hutus massacred 800,000 Tutsis over one hundred days in an effort to
thwart the power-sharing arrangement mandated by the Arusha Peace Accords of 1993.39 The
Tutsi-led Rwandan Patriotic Front eventually defeated the Hutu-led interim government and
ended the genocide.
In stark contrast to South African’s experiment with restorative justice, Rwandans asked for
United Nations assistance to establish a structure for retributive justice. Archbishop Tutu had
urged Rwandans to forego punishment in favor of pardon fearing that “justice with ashes”
would be the outcome of the Rwandan effort to punish the perpetrators of the genocide.40
Instead, the UN Security Council established the International Criminal Tribunal for Rwanda
(ICTR) in 1994 to prosecute the masterminds of the genocide.
Political and cultural factors in large part explain Rwanda's initial preference for prosecution
of the genocidaires. Having vanquished the interim Hutu government, the Rwandan Patriotic
Front was under no pressure to compromise. In addition, the religious-redemptive model of
forgiveness and reconciliation was significantly discredited by the degree to which church
leaders were implicated in the genocide.41
However, by 1999 the government “recognized that some measured use of the restorative
justice approach might indeed better serve the country’s needs.”42 A traditional method of
conflict resolution – gacaca –was resurrected to deal with the situation. Practical considerations
played a major role in Rwanda’s turn to restorative justice. First, it quickly became clear that the
ICTR was unlikely to try more than a hundred of the most prominent suspects. Meanwhile over
100,000 people accused of human rights crimes languished in Rwandan prisons. It was simply
impossible for the country’s decimated justice system to try the huge number of suspects.
Authorities admitted that at the present rate of prosecutions, Rwandan courts would take 150
years to try all the suspects. Consequently, in early 2001, the government passed a law
establishing the gacaca system of a hierarchically organized network of about 11,000
community courts that would try lower level crimes.43
The traditional system of gacaca existed from the pre-colonial times into the 1990s. It was
used alongside the formal judicial system at the local level, especially in settling family disputes
and minor offenses between neighbors. Intended primarily to restore social order, traditional
gacaca meted out punishments with the intention of restoring harmony between the community
and those responsible for discord. Now resurrected to deal with crimes more serious than those
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for which it was originally intended, gacaca began on a national level in November 2002 and
most cells began work in 2003.
Gacaca encompasses three important features of relevance to broader experiments of
reconciliatory justice. First, gacaca rewards those who confess their crimes with the halving of
prison sentences. As a result, 60,238 prisoners have confessed to participating in the genocide.
Second, gacaca law highlights apologies. Part of the procedure of the traditional gacaca system,
apology has been maintained in the new variant as an important ingredient to promote
reconciliation. Third, reparations to victims is a cornerstone of gacaca. Those found guilty must
contribute to a compensation fund and/or perform community service. Klaas de Jonge of Penal
Reform International applauds this form of direct reparations as it will contribute something
tangible to improve victims’ lives.44
Rwanda’s experiments with transitional justice have much to teach us about the strengths
and weakness of these structures. International and domestic, retributive and restorative
structures are being deployed to address the atrocities of the genocide. Therefore, researchers
have an opportunity to probe a number of the practical questions identified above concerning the
comparative advantages of each of these approaches. Here, too, we must develop criteria against
which to measure these structures’ success. How can we measure the degree of justice the ICTR
has achieved? How will we know whether gacaca leads to individual and/or national
reconciliation? Concurrent retributive and restorative justice mechanisms provide fruitful
material with which to examine the fundamental question of whether restorative justice is merely
“second-best.”
In her contribution to this volume, Alana Tiemessen addresses a number of these questions.
She reviews the differences between restorative and retributive justice and demonstrates their
different norms at work in the gacaca and in the International Criminal Tribunal for Rwanda.
Using Mark Drumbl’s typology of post-genocide societies, she makes the argument in favor of
employing restorative justice structures in Rwanda's transition. However, she roundly condemns
the political manipulation she observes of gacaca by the Tutsi-led government of Rwanda. She
argues that “one of the dangers that the Tutsi ethnocracy poses to the success of Gacaca is that it
serves the government’s agenda of assigning collective guilt to Hutus.” Tiemessen draws
attention to an important weakness of transitional justice structures -- their vulnerability to
political manipulations by elites -- and cautions against overly optimistic expectations of the
degree to which such structures can bring reconciliation to stricken societies.
Tiemessen notes the problems raised in Rwanda, as in South Africa, from the lack of clear
and appropriate measures of reconciliation. She also observes that “the path from justice to
reconciliation is not necessarily linear,” but rather “is conditioned by two important factors: the
relationship between victims and aggressors and the form of power that justice flows from.”
Unfortunately, she sees these factors in Rwanda as raising “grave concerns for the ability of any
kind of justice to contribute to reconciliation.”
Sierra Leone
In an attempt to deal with the crimes committed during a long and brutal civil war in which 50-
75,000 perished, two million people were displaced, and thousands of civilians were mutilated,
Sierra Leone has embarked on a two-pronged process. The persons “who bear the greatest
responsibility” for crimes against humanity, war crimes, and other serious violations of
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humanitarian law will be tried in a UN-funded Special Court, and others (both perpetrators and
victims) were heard in a South African-styled Truth and Reconciliation Commission.45 But the
two institutions have two very different objectives: the Special Court emphasizes justice through
punishment while the TRC promotes reconciliation through a process of truth telling, apology
and pardon. As the Registrar for the Special Court put it, there will be punishment for the few
masterminds, and forgiveness for the many foot soldiers.46
The Sierra Leone Truth Commission (SLTRC), established in July 2002 by an act of
Parliament, began gathering statements in December 2002 from citizens of all war time
affiliations and commenced public hearings in April 2003.47 Its mandate was to create an
impartial record of human rights violations committed during the war (1991 to 1999), and to
address the conflict’s root causes. Its ultimate goal, according to President Tejan Kabbah, was
nothing less than “the reconciling of our population.” 48 After many delays, the truth
commission’s final five volume report was presented to President Kabbah in October 2004. At
the time of writing, the report had not been widely disseminated or read.
The SLTRC is a uniquely designed structure. It resembles the South African model in being
headed by a religious leader, Joseph Humper, Bishop of the United Methodist Church and
President of the Inter-Religious Council.49 However, unlike the South African TRC, it has no
power to grant amnesty to those who came forward to acknowledge their crimes. Also, as it
operated concurrently with the Special Court, there was concern that the Special Court’s
prosecutor could develop a case from the public truth commission testimony.
Despite the lack of incentives, some perpetrators did in fact come before the TRC. While
former combatants hesitated to testify at the early hearings, once it was seen that the Special
Court was not interested in subpoenaing them, their numbers increased. Commissioner William
Schabas has written that many perpetrators came forward to tell their stories “and in some cases,
to ask pardon or forgiveness of the victims.”50 The vast number of alleged perpetrators – some
70,000 – makes their reintegration vital if reconciliation is to take place. Perpetrator participation
was especially important in terms of accountability, because it is unlikely that the Special Court
will prosecute more than a dozen suspects. In the end, approximately 13% of individual witness
statements before the truth commission came from perpetrators.51
By August 2003, the TRC had taken 8000 statements from victims, perpetrators, and
witnesses. 350 witnesses testified publicly.52 Most likely there would have been more hearings,
and more witness statements taken, had there been more generous funding for the TRC.53 The
TRC was able to facilitate victim-offender mediation in some cases where the victims welcomed
it. Each week, a reconciliation ceremony was held where perpetrators and victims could come
together. Many of those who acknowledged their crimes were baptized through a special
cleansing ceremony and thereby ritually reintegrated into the community.54 On the issue of
apology and forgiveness, TRC Chair Bishop Humper stated: “We will not expect you [victims]
to forget, but we will expect you to forgive. And the message to the perpetrator will be that by
our own cultural standard [there is] a duty to express remorse, to confess, and to accept
forgiveness. Because forgiveness cannot come on a silver platter.”55
Compensation for victims is critical to the success of Sierra Leone’s truth commission.
When witnesses were asked at hearings what they would like the Commission to include in its
recommendations, they invariably responded: “free education for our children, access to medical
care, adequate housing.”56 Ideally, Sierra Leone will learn from South Africa’s mistake. Despite
the recommendation from South Africa’s TRC to the government for substantial reparations to
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victims, the South African government belatedly awarded only minimal reparations to victims in
2003, embittering many victims who felt they had been used in the name of “nation building”
and“reconciliation.”57 The Act authorizing the SLTRC requires the government to implement the
truth commission’s recommendations, and the commission is authorized to make
recommendations regarding the Special Fund for War Victims.
The Sierra Leone case also raises some of the controversial issues identified in this essay.
Here again is an opportunity to determine the merit of the transitional justice approach. If the
Special Court, as expected, tries less than a dozen individuals, has it achieved more or less than
the Sierra Leonean domestic judicial system could reasonably have achieved in the near future?
Here also is an opportunity to discuss the practical issues of cooperation between domestic and
international actors as well as trials and truth commissions. Finally, of course, careful
examination will be needed to determine the degree of justice and reconciliation these bodies
bring to the victims of Sierra Leone’s civil war.
Beth Dougherty’s article addresses a number of these questions with an examination of
Sierra Leone’s truth commission. She demonstrates the utility of employing Priscilla Hayner’s
criteria for a successful truth commission. The first criterion is a process that “encompasses
engaging the public, gaining the full participation of stakeholders” and supporting victims and
survivors. The second is a product to be evaluated according to “the extent of truth revealed,
proposals and recommendations for reform, and the establishment of individual and institutional
accountability.” The final criterion is a commission’s “contributions to long-term healing,
reconciliation and reform.” Dougherty offers a detailed evaluation of Sierra Leone’s truth
commission and finds many shortcomings in its ability both to reach out to and engage the public
and to achieve the maximum participation of victims and perpetrators of human rights abuses.
Writing before the release of the commission’s final report, Dougherty presents an assessment of
the impact of the commission’s public hearings, and identifies criteria against which to evaluate
its final report.58 She also offers preliminary observations of its contributions to the needs of four
major stakeholder groups: women and girls, children, amputees, and ex-combatants.
Dougherty’s article confronts the possibilities and pit-falls of concurrent retributive and
restorative justice structures. She analyzes the working relationship between Sierra Leone’s truth
commission and the UN-funded Special Court for Sierra Leone, highlighting how both
institutions clashed over whether to allow indicted suspects held by the Special Court to testify
before the truth commission. Her conclusions should inform policy-makers considering similar
structures in other environments.
CONCLUSION
All of the authors in this volume call for modest expectations of transitional justice institutions.
Tristan Borer carefully demonstrates that South Africa’s TRC appears to be making a lesser
contribution to interpersonal reconciliation than to national unity. Jacobus Du Pisani and Kwang-
Su Kim emphasize that the interpretations of “the truth” revealed by a process like South
Africa’s truth commission must be regarded as one set of voices among many others. Scholars
must continue to pursue broader assessments of a violent past. Alana Tiemessen forcefully
argues that both the ICTR and gacaca will fall short of hastening full reconciliation which
Rwandans need to avoid future violence, but she is hopeful that Rwandans will receive some
measure of justice. Similarly, Beth Dougherty notes that Sierra Leone’s truth commission has
struggled to fulfill its objectives and appears to have made limited contributions to addressing the
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needs of its major stakeholder groups. Amputees, for example, regard reparations as the single
most important component of justice for them, but the truth commission can only make
recommendations to Sierra Leone’s government for appropriate payments for victims. None of
the articles that follow argue that these experiments in transitional justice have been irrelevant or
total failures, but all do call for modest expectations and rigorous evaluation of the actual results.
NOTES
1. Kritz, 1996, p. 128.
2. Examples of theoretical literature include Allen, 2001; Aukerman, 2002; Biggar, 2001;
Kritz, 1995; Minow, 1998; Posner and Vermeule, 2004; Sriram, 2003; Teitel, 2000. See on
Rwanda: Akhavan, 1996; Magnarella, 2000; Moghalu, 2002; Neuffer, 2002; Packer 2002. See
on Sierra Leone: Evenson, 2004; Gberie, 2003; Haines, 2003; Hall and Kazemi, 2003; Hayner
2004; Schabas, 2003; Schocken, 2002; Tejan-Cole, 2003. See on South Africa: Boraine, 2000;
Gibson, 2004; Graybill, 2002; Krog, 1998; Meredith, 1999; Rotberg and Thompson, 2000;
Villa-Vicencio and Verwoerd, 2000; Wilson, 1996. Examples of comparative studies include
Chapman and Ball, 2001; Graybill, 2004; Hayner, 2001; Laakso, 2003; Lanegran 2003; Linton,
2001; Quinn and Freeman, 2003; Skaar, 1999.
3. Allen, 2001, p. 315.
4. Teitel, 2000; see also Gutmann and Thompson, 2000.
5. Bass, 2000; Lanegran, 2003, 2005; Mertes, 2000.
6. See Biggar, 2001b; Hayner, 2001, p. 88.
7. See Allen, 1999; Aukerman, 2002; Zalaquett, 1995.
8. Evenson, 2004, p. 761.
9. Aukerman, 2002.
10. Hayner, 1994.
11. Hayner, 2001, p. 252.
12. Ibid.
13. Ibid.
14. Allen, 2001; Hayner, 2001.
15. Hamber and Wilson, 2002, p. 36.
16. Gibson, 2004.
17. Aukerman, 2002, p. 39.
18. Orentlicher, 1995.
19. Walsh, 1996.
20. Bass, 2000; Humphrey, 2003.
21. Skaar, 1999, p. 1110.
22. Minow, 1998, p. 5.
23. Evenson, 2004, p. 752.
24. Sriram, 2003, p. 313.
25. Kritz, 1996, p. 148.
26. Kritz, 1996, p. 147.
27. Quinn and Freeman, 2003, p. 1124.
28. Quinn and Freeman, 2003, p. 1147.
29. Graybill, 2005.
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30. See Kistner, 1996; Storey, 1997; Tutu, 1999. 77% of South Africans identify themselves
as Christians.
31. See Walshe, 1995.
32. Mbiti, 1969, pp. 108-109.
33. Chapman and Spong, 2003.
34. Cited by Meiring, 2000, p. 50.
35. Cited by Hamber, 1999, p. 5.
36. Lodge, 2003, p. 185.
37. 7,094 individuals applied for amnesty; 1,160 were granted amnesty.
38. Mamdani, 2000, pp. 177-8.
39. Some 10,000-30,000 moderate Hutus opposed to the genocide were murdered as well.
40. Cited by Gevisser, 1996.
41. Des Forges, 1999, pp. 245-248.
42. Cobban, 2002.
43. Gacaca courts will prosecute cases ranging from property crimes (heard at the smallest,
or cellule, level) to assaults (heard at the next higher level) through to intentional and
unintentional homicides (at the top level). Those accused of sexual crimes or organizing or
inciting genocide will be tried in the formal courts if they do not come before the ICTR.
44. Cited in Stockman, 2000, p. 37.
45. No more than 15-30 individuals are likely to be indicted. See International Crisis Group,
August 4, 2003, p. 10.
46. Vincent, 2002.
47. There were 4 combatant groups: Revolutionary United Front (RUF), Sierra Leone Armed
Forces, Armed Forces Ruling Council (AFRC), and Civil Defense Force(CDF).
48. Adongo, 2003.
49. One of the three international commissioners, Yasmin Sooka, a South African human
rights lawyer, served on the SATRC.
50. Schabas, 2003, p. 1051.
51. Hayner, 2004.
52. Ibid.
53. The operating budget for the SLTRC was US $4.5 million for one year, which came
mainly from international donors.
54. Hayner, 2004, p. 5.
55. “Sierra Leone: Truth and Reconciliation,” 2003.
56. Schabas, 2003, p. 1046.
57. The government awarded a one-off final reparations grant of R30,000 (US$ 4200).
58. The truth commission presented its report to President Kabbah in October 2004 when this
issue was in its final production phase.
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The outbreak of violence in South Sudan in December 2013 has enlarged ethnic divides and reversed the development advances the young nation has struggled to achieve since independence; while the continued deadlock in the IGAD-led negotiation process provides little hope of a negotiated peace settlement. A peacebuilding strategy that takes into account the context-specific circumstances of this intra-state conflict enhances the opportunity for peace and development in South Sudan, and provides the international community an opportunity to contribute to peace in a meaningful way. Limited capacity, deep and persistent ethnic divisions, corruption and a long memory of brutality within the civilian population complicate prospects for peace in the country. An examination of recent peacebuilding efforts in South Sudan reveals a fragmented and provisional approach. Using the framework of Ali and Matthews, this paper outlines a peacebuilding strategy for South Sudan that addresses root causes, consequences and legacies of the conflict, while taking into consideration the unique country specific circumstances. Recognizing the need to move from negative to positive peace, this paper prioritizes security and political arrangements as essential prerequisites for success in economic development and justice and reconciliation. The role of the international community, regional/sub-regional organizations and global civil society.
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When individuals are accused of serious human rights violations, the succeeding government and the international community face difficult policy choices: granting amnesty, establishing a truth commission, paying reparations, prosecuting the perpetrator(s) in domestic courts, and/or prosecuting them in international tribunals. The decision of the authorities to adopt one or more of these policies is driven by four objectives: reconciliation, deterrence, justice, and legitimacy. When a government pursues multiple objectives, the different contributions of each objective can create debilitating systematic contradictions. While a government can simultaneously pursue justice, deterrence, and legitimacy with minimal policy conflicts, the addition of reconciliation to any or all of the other three objectives seriously undermines the successor government's attempts to deal with past human rights violations.