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The Legal Framework of the National Reconciliation Commission
Abstract
The enabling laws and key features of a truth commission provide a basis for understanding its work. Hence, the absence of a comprehensive legal framework and extensive powers can translate into significant restrictions on addressing gross human rights violations. In unearthing the unique features and limitations of Ghana’s National Reconciliation Commission, this chapter examines the legal foundations for its establishment. Starting from the laws that limited recourse to prosecutions, the chapter reflects on the challenges posed by the existence of a blanket amnesty under Ghana’s 1992 Constitution. The chapter identifies the absence of a transitional justice policy and the principle of legality as other factors that hindered prosecutions during the transitional process. Using normative and comparative approaches, the chapter discusses the key features of the National Reconciliation Commission, including the nature of its membership, operational time frame, level of independence, nature of its powers and mandate. The discussion highlights the commission’s massive legal powers, which make it almost akin to a court.
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Mobilizing the literature, official documents, press materials and field notes, this article discusses the Brazilian National Truth Commission (NTC) timing, process and results. It argues that Brazil's transitional justice evolved differently from that of its neighbouring countries and that establishing the truth was just one of the NTC's goals. Created when much of the truth was known, the Brazilian NTC had to address two competing expectations: first, the promotion of an account of the past that supported the previously established conciliatory narrative (the status quo expectation); and second, to challenge that path by mobilizing society against impunity (the victims' expectation). This tension influenced the NTC's agenda and its results. Despite the modest outcomes in truth seeking, the NTC achieved three main goals: improving historical accountability; promoting international human rights norms; and challenging the veto power that the military still holds. This constitutes a step forward. © The Author(s) (2018). Published by Oxford University Press. All rights reserved.
This edited volume brings together well-established and emerging scholars of transitional justice to discuss the persistence of amnesty in the age of human rights accountability. The volume attempts to reframe debates, moving beyond the limited approaches of 'truth versus justice' or 'stability versus accountability' in which many of these issues have been cast in the existing scholarship. The theoretical and empirical contributions in this book offer new ways of understanding and tackling the enduring persistence of amnesty in the age of accountability. In addition to cross-national studies, the volume encompasses eleven country cases of amnesty for past human rights violations: Argentina, Brazil, Cambodia, El Salvador, Guatemala, Indonesia, Rwanda, South Africa, Spain, Uganda and Uruguay. The volume goes beyond merely describing these case studies, but also considers what we learn from them in terms of overcoming impunity and promoting accountability to contribute to improvements in human rights and democracy.
The transitions to democracy in the 1980s have yielded a wealth of experience regarding the way societies reckon with a recent past of massive human rights violations. This paper looks at the most influential literature produced contemporaneously with those experiences and analyzes its current validity in the light of new contexts in which the issue arises. The author places emphasis first and foremost on the duties that the State owes to the victims of human rights violations and to society and then looks at the objective limitations that most transitions place on governments' ability to satisfy demands for truth and justice. These duties are part of an emerging rule of international law that demands that certain crimes should not go unpunished. But the obligations of the State to the victims and to society are varied and not dependent on each other; even if prosecution and punishment are rendered legally or politically impossible, the duties to disclose all that can be established about each violation, to offer reparations, and to dismiss the culprits from the armed and security forces remain fully in force.
This book is one of the most influential textbooks in the field of international criminal justice. It offers a systematic and comprehensive analysis of the foundations and general principles of substantive international criminal law, including thorough discussion of its core crimes. It provides a detailed understanding of the general principles, sources, and evolution of international criminal law, demonstrating how it has developed, and how its application has changed. After establishing the general principles, the book assesses the four key international crimes as defined by the statute of the International Criminal Court: genocide, crimes against humanity, war crimes, and the crime of aggression. This new edition revises and updates the work with developments in international criminal justice since 2014. The book retains its systematic approach and consistent methodology, making it essential reading for both students and scholars of international criminal law, as well as for practitioners and judges working in the field.
In December 2001, the Parliament of Ghana passed a law to establish the National Reconciliation Commission (the “Commission”). The law, known as the National Reconciliation Commission Act (Act 611), came into force on 7 January 2002, when it received Presidential assent. The Commission was inaugurated on 6 May 2002. The goal of the Commission is to help reconcile the people of Ghana by finding out the truth about past human rights abuses and helping those who were hurt by the abuses to deal with their pain and to move on with their lives. The Commission will also help those who participated in the abuses to come to terms with the experiences and to obtain forgiveness.
In most legal systems, courts frequently apply (and see themselves as bound to apply) norms that are not valid within their legal system, and the courts also on occasion do not apply (and see themselves as bound not to apply) otherwise applicable norms that are valid norms within their legal system. Judges’ roles include the resolution of disputes where the ruling norms come from outside the home legal system (or, from any legal system), and the courts may also have responsibilities to develop the law and to avoid unjust or absurd applications of otherwise valid norms. This paper argues that it would thus be more charitable to read the Radbruch Formula as a prescription for judicial decision-making rather than as a descriptive, conceptual or analytical claim about the nature of law. The suggested change will not affect the place of the Radbruch Formula within debates about the rule of law or the role of courts. The issue remains the same: whether it is consistent with the rule of law not to apply norms otherwise legally valid because they are extremely unjust. Radbruch argued that this is consistent with the general understanding of law and the expectations for law. Other commentators have been concerned that Radbruch’s approach undermines the rule of law by giving significant and unpredictable discretion to judges to refuse to apply otherwise valid norms.
Darfur, Guantánamo, Iraq, Haiti. As this book goes to press, they are the headlines, todayʹs sites of killing and mistreatment of civilians and torture of prisoners. Abuses during conflict are not new. Nor is the demand, in many parts of the world, that something be done in their aftermath, that there be justice. But there is a growing sense that something can and must be done, not only to stop the atrocities but also to bring those responsible to account, to make the facts known, and to succor the victims. The Security Council refers the situation in Darfur to the International Criminal Court. In 2005, Spanish courts sentence an Argentine naval officer to 640 years in a Spanish jail for throwing prisoners, alive but drugged, from airplanes into the sea a quarter-century before. Slowly, often after years have passed and sometimes in venues far from the scene of the crimes, demands for justice emerge. The past, unaccounted for, does not lie quiet. The study of how societies emerging from periods of civil war or dictatorship deal with the legacies of the past became a full-fledged subject of academic inquiry and human rights activism during the 1990s. The term itself is a bit slippery: transitional justice can be defined as the “conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes.”
This detailed evaluation of the relationship between trials and truth commissions challenges their assumed compatibility through an analysis of their operational features at national, inter-state and international levels. Alison Bisset conducts case-study analyses of national practice in South Africa, East Timor and Sierra Leone, evaluates the problems posed by the International Criminal Court and considers the challenges presented by the possibility of bystander state prosecutions. At each level, she highlights potential operational conflicts and formulates targeted proposals to enable effective coexistence.
This is the first law book devoted entirely to the subject of truth commissions. The book sets forth standards of procedural fairness aimed at protecting the rights of those who come into contact with truth commissions - primarily victims and their families, witnesses, and perpetrators. The aim of the book is to provide recommended criteria of procedural fairness for five possible components of a truth commission’s mandate: the taking of statements, the use of subpoenas, the exercise of powers of search and seizure, the holding of victim-centered public hearings, and the publication of findings of individual responsibility in a final report (sometimes called the issue of ‘naming names’). The book draws on the experience of past and present truth commissions, analogous national and multilateral investigative bodies, and international and comparative standards of procedural fairness.
Le Ghana a rejoint le groupe des démocraties en transition en créant la Commission de réconciliation nationale (CRN), qui débuta ses travaux en 2002. Elle reçut le mandat d'enquêter sur les atrocités et violations des droits humains passées, de recommander des compensations adéquates pour les victimes et de réconcilier la nation. Or, les attentes et la confiance des Ghanéens en la capacité de la CRN de guérir les blessures du passé, mettre un terme au cycle de vengeance et de vendettas et de réconcilier la nation furent partagées depuis que la Commission termina ses travaux et remit son rapport, en octobre 2004. Cet article prend position pour la Commission de réconciliation nationale au Ghana, soutenant qu'elle est la meilleure parmi les solutions possibles pour traiter des violations passées des droits humains au Ghana.
Ghana joined a group of transitional democracies in the world by establishing a National Reconciliation Commission (NRC), which started work in September 2002. The NRC was mandated to investigate past atrocities and human rights violations, recommend appropriate compensation for victims, and reconcile the nation. But expectations among Ghanaians of the ability of the NRC to heal the wounds of the past, end the cycle of vengeance and vendettas, and reconcile the nation have been mixed even after the NRC completed its work and submitted its report in October 2004. This paper makes a case for Ghana's NRC. It argues that a National Reconciliation Commission is a better way of dealing with the egregious human rights violations in Ghana's past than the alternatives available.
This article examines the field of transitional justice, focusing on Ghana's approach to dealing with past violations of human rights. The article traces the growing world focus on human rights following the trials and conviction of World War II war criminals. It highlights mechanisms available to address human rights violations during transitions. It further discusses the rationale behind Ghana's choice of transitional justice model. The article argues and concludes that it was necessary for the newly democratic regime in Ghana to embark on such a process, and that Ghana's attempt to wipe the slate clean by addressing such existing acrimony and mistrust is necessary for nation building and for progress towards democratic consolidation.
GHANA'S UNCERTAIN POLITICAL OPENING E. Gyimah-Boadi E. Gyimah-Boadi, who currently is teaching at the University of Swaziland, is a Ghanaian political scientist who has written widely on the politics of his homeland. An earlier version of this paper was presented at the Africa Seminar of the Center for African Studies at the University of Cape Town on 5 May 1993. Oupporters of democracy in Africa have been greatly exhilarated by the apparent rebirth of political freedom in the 1990s. Almost everywhere on the continent, opposition parties have been unbanned or are being somewhat tolerated, private newspapers have resurfaced, citizens are asserting long-lost civil rights, national conferences have been or are being convened, and relatively liberal and democratic constitutions have been or are being written. Still, there is much anxiety over whether this trend can be sustained and democratic gains can be consolidated. This well-founded concern derives from the dashed democratic hopes of the period of decolonization. Indeed, the continent to this day cannot boast of even a single truly mature democracy, meaning one in which there has been a peaceful transfer of power from one democratically elected government to another party or social class in a free and fair election. The African countries with the longest records of democracy -- Botswana, Senegal, and the Gambia -- are still one-party- dominant regimes. Concern has also risen because only a relative handful of Africa's countries -- Benin, Cape Verde, Sao Tome and Principe, Zambia, Mali, Lesotho, and Madagascar -- have managed to transfer power successfully through fairly honest multiparty elections. The process has barely started in some places (e.g., Sudan, Malawi, and Swaziland), or has become stagnant or suffered severe setbacks as the residual powers of nondemocratic regimes (or elements within them) have been deployed to frustrate democratic change (e.g., Zaire, Togo, Burundi, and Nigeria). In still other countries such as Crte d'Ivoire, Burkina Faso, Cameroon, Kenya, and Ghana, the process has been Journal of Democracy Vol. 5, No. 2 April 1994 76 Journal of Democracy flawed and its outcome somewhat tainted, as incumbent strongmen have managed to stay on after disputed multiparty elections. Doubts over the sustainability of African democratization can only be cleared up in the fullness of time, after systematic study. Nonetheless, in the belief that insights and lessons of a general nature may be drawn from the experience of one country, I shall review Ghana's transition to constitutional rule in the 1990s and assess the various reasons for hope and despair in that country's ongoing quest for democratization. Let us begin with a brief look back at Ghana's checkered history of attempts to install and implement liberal democratic constitutions. Formed out of the consolidation of two British-ruled territories, Ghana became the first decolonized country in West Africa in 1957. It had a liberal democratic constitution with all the trappings: an independent judiciary, opposition parties, guarantees of civil liberties, and so on. By the time the First Republic fell in the military coup of 1966, however, the Constitution of 1957 had long been scrapped, civil liberties curtailed, the ruling Convention Peoples' Party (CPP) declared the sole legal party, and lifelong tenure conferred on its leader, President Kwame Nkrumah. Subsequent attempts to set up liberal democracy fared no better. The liberal democratic Constitution of 1969 and the Second Republic (under Prime Minister Kofi Busia and the Progress Party government) were overthrown in another military coup on 13 January 1972. The coup plotters cited violations of the democratic spirit by the duly elected government as one of the reasons for their action. From 1972 to 1979, Ghana was ruled by a succession of senior military officers. In June 1979, a new military regime was imposed by the Armed Forces Revolutionary Council, headed by Flight Lieutenant Jerry Rawlings. The Rawlings government allowed the process of constitutional restoration already underway to continue, permitting multiparty elections and handing over the reins of government to Hilla Limann and his People's National Party on 24 September 1979. With the inauguration of the Third Republic, Ghana began yet another attempt to make a liberal democratic constitution work. Like the abrogated Constitutions of 1957 and 1969, the...
Journal of Democracy 8.2 (1997) 65-77
On 7 December 1996, President Jerry Rawlings won his second multiparty election in Ghana, completing another important step in the building of sustainable political and economic institutions in that West African state. Previous elections, in 1992, ended in charges of fraud and an opposition boycott of the 200-seat, unicameral National Assembly. This time, however, important reforms in the electoral system and a spirited campaign by an opposition coalition gave Ghanaians a meaningful choice on election day. The opposition won a third of the seats in the Assembly, and can use this base both to scrutinize the Rawlings government and to build more effective political parties for subsequent elections.
While the election received less attention than it deserved in the international media, Ghana offers a series of hopeful lessons for African states struggling with the challenges of macroeconomic structural adjustment programs (SAPs) and the transition from authoritarianism to democracy. The case of Ghana also highlights the tendency in a number of African countries for soldiers who seized power through coups to reinvent themselves as democratic leaders. In such West African states as Niger, Togo, Burkina Faso, Guinea, and Gambia, military leaders have remained in power in part by manipulating elections or by forcing the opposition to withdraw. President Rawlings of Ghana, a former air force officer, has cultivated a rural base of support that has allowed him to go from coup leader to winner of two multiparty elections -- all while steering the country through a difficult period of economic reform.
Ghana has served as the preeminent test case of structural adjustment in Africa. Following the virtual collapse of the formal economy in the early 1980s, the Rawlings government reversed its populist policies and adopted an SAP with the strong encouragement of the World Bank, the International Monetary Fund (IMF), and bilateral donors. The results were dramatic. The country's GDP grew at rates of 6 to 7 percent annually from 1984 to 1988 -- the highest in sub-Saharan Africa at that time. These considerable economic accomplishments, however, began to stall in the early 1990s. The disputed 1992 elections and the subsequent opposition boycott of parliament raised questions about stability and made private investors wary .
The stakes in the 1996 election, therefore, were high. As the Financial Times put it: "If Ghana falters in its trailblazing role, not only will international confidence in the continent's capacity to recover be jolted, the credibility of the donors' development strategy for Africa will also be eroded." Ghana could not afford to stand pat, and still less to repeat the contentious 1992 elections.
To evaluate the transition in Ghana, it is necessary to understand the degree to which both economic and political institutions had deteriorated by the time of Rawlings's 31 December 1981 coup. Ghana had achieved independence in 1957 with a per-capita income roughly equal to South Korea's. Over the next 25 years, however, disastrous import-substitution strategies, sagging export revenues, rampant corruption, and statism laid waste to the economy. Between 1974 and 1981, for example, GDP dropped 15 percent and cocoa exports, the leading source of foreign exchange, shrank by more than 40 percent.
The independence movement in Ghana was led by Kwame Nkrumah and his Convention People's Party (CPP). In 1966, after a decade of increasingly authoritarian rule, a coup toppled him. Following an election three years later, the military returned power to civilians. The winners of this election, Prime Minister Kofi A. Busia and his Progress Party, ruled for just over two years. Senior military officers retook power in early 1972. In June 1979, then-Flight Lieutenant Rawlings led the Armed Forces Revolution Council in a junior-officers' putsch. Later that year, Rawlings handed power over to President Hilla Limann and his People's National Party (PNP), the winners of national elections. It was Limann whom Rawlings overthrew on the last day of 1981.
This thumbnail sketch shows that elections and established political parties are as much a legacy of recent Ghanaian history as military coups. In 1969, 1979, and 1992, elections followed a period of military rule and served...
Human Rights Quarterly 23.2 (2001) 233-258
A little more than two years ago, on 25 February 1999, the Guatemalan Commission for Historical Clarification (CEH) handed over the report containing its findings and recommendations to the Government of Guatemala and the former guerrilla organization URNG (Unidad Revolucionaria Nacional de Guatemala), as well as to a representative of the Secretary-General of the United Nations. The CEH constituted a centerpiece within the comprehensive peace settlement that the Government of Guatemala and the URNG had finalized on 29 December 1996 by concluding the final Agreement on a Firm and Lasting Peace. Its establishment had already been decided more than two years earlier by virtue of the so-called Oslo Agreement of 23 June 1994. This Agreement provided that the CEH shall clarify the human rights violations and acts of violence committed during the armed confrontation that affected Guatemala for thirty-five years.
The ceremony took place in the National Theater of Guatemala City. Official representatives of the Government and other public institutions, representatives of the URNG, and a broad sample of the population attended. Thousands filled the main hall of the theater, thousands more listened in the lobby, and thousands of others followed the events taking place inside the hall from outside on huge screens put up specifically for that purpose. The coordinator of the CEH (also the author of this article) held the responsibility of presenting the main findings of the report to the public. For the first time in the history of the country, an official body stated that, according to its judgment, genocide had been perpetrated at certain times in certain places during the civil war. Accordingly, emotions ran high. Whereas apparently the President and his Ministers did not view the open language of the CEH with great favor, the human rights organizations -- spokespersons for the victims -- felt extremely satisfied. The report also found an overwhelmingly positive echo in the Guatemalan press of the next day. Nearly everyone agreed that all expectations had been exceeded.
The report itself was originally available only in a limited number of copies in Xerox form. However, a summary of its findings and the full text of its recommendations was printed for the ceremony of 25 February 1999 in thousands of copies, not only in Spanish, but also in an English translation. It was not until the end of June 1999 that the printing process for the full report (in Spanish) was completed. Many free copies were distributed to interested organizations, but the twelve volumes of the report have also been on sale since that time. The report is not a secret document, but can be obtained by everyone at a moderate price. Thus, accessibility of the report is fully ensured.
In accordance with the recommendations formulated by the CEH itself, the United Nations Office for Project Services (UNOPS), the UN agency which had managed administrative and budgetary matters for the CEH, also produced in the following months translations of the summary and the recommendations in several Mayan languages. Those elements of the population who do not read Spanish, provided they are literate, are also now in a position to inform themselves about the main occurrences during the armed confrontation from 1961 to 1996.
One may also note that currently any resurgence of civil war seems to be a rather remote possibility in Guatemala. The URNG has transformed itself into a political party. The use of force to overthrow the governmental institutions of today does not belong to its political vocabulary any more, nor do any other extremist movements exist that would advocate a resort to violence in order to change the current order of things by forcible means. Public peace has become a tangible reality. This does not mean, however, that citizens now live in conditions of peace and security. Unfortunately, common crime is steadily on the rise. The police and criminal justice systems do not seem able to win this uphill battle that currently seems inexorable given the convulsive social situation of the country.
Truth commissions have sprung up from almost nowhere in recent decades. Although an impressive number of such bodies...
A key mandate of all truth and reconciliation commissions (TRCs) is to ascertain the truth about past injustices and to establish accurate records of violations and abuses. But truth has different connotations to diverse people and is often applied variously. So, how do TRCs uncover the truth surrounding a case of past human rights abuse? But what is truth? More specifically, how did Ghana’s National Reconciliation Commission (NRC) ascertain the truth in the cases that came before it? These are the key questions addressed in this paper, which is based on interviews with members and key staff of NRC, analysis of parliamentary debates and media coverage of the reconciliation exercise, and a two‐month observation of the NRC. The paper concludes that the specific yet flexible mandate of the NRC, the standard of proof adopted, the elaborate information management process, and the internal control mechanisms put in place favorably positioned the NRC to ascertain truth regarding the cases it deliberated.
Gustav Radbruch, in well-known work that appeared just after World War II, put forward a formula that stated that state-promulgated rules that are sufficiently unjust lose their status as valid law. Radbruch’s Formula has generally been understood as a claim about the nature of law, and recent variations of Radbruch’s Formula, like Robert Alexy’s “claim to correctness,” have similarly been characterized as offering a truth about the nature of law. Additionally, both Radbruch’s and Alexy’s theories have been presented as criticisms of, and alternatives to, legal positivism. An alternative understanding of the Formula (and its modern variations) is as (mere) prescriptions for judicial decision-making, and thus compatible with a variety of different conceptual theories of the nature of law, including legal positivism. This article shows the difficulties of understanding Radbruch’s Formula as it was presented and conventionally understood. In particular, the article focuses on the way that seeing the Formula as a claim about the nature of law leads to outcomes inconsistent with the basic reasons for the Formula.
In December 2001, the Parliament of Ghana passed a law to establish the National Reconciliation Commission (the “Commission”).
The law, known as the National Reconciliation Commission Act (Act 611), came into force on 7 January 2002, when it received
Presidential assent. The Commission was inaugurated on 6 May 2002. The goal of the Commission is to help reconcile the people
of Ghana by finding out the truth about past human rights abuses and helping those who were hurt by the abuses to deal with
their pain and to move on with their lives. The Commission will also help those who participated in the abuses to come to
terms with the experiences and to obtain forgiveness.
Following its transition to democracy from an authoritarian military rule marked by gross violations of human rights, Nigeria
established the Human Rights Violations Investigations Commission (HRVIC) in 1999. This paper critically examines the contributions
of the HRVIC, popularly known as the ‘Oputa Panel,’ to the field of transitional justice and the rule of law. It sets out
the process of establishing the Commission, its mandate and how this mandate was interpreted during the course of the Commission's
work. The challenges faced by the Oputa Panel, particularly those that relate to its legal status and relationship with the
judiciary, are analyzed in an attempt to draw useful guidelines from these challenges for other truth commissions. Recourse
by powerful individuals to the judicial process in a bid to shield themselves from the HRVIC merits particular review as it
raises questions regarding the transformation of the judiciary and the rule of law in the wake of an authoritarian regime.
This article analyses the process and outcomes of Ghana's 2008 elections, which saw the National Democratic Congress replace the New Patriotic Party and thus an alternation of ruling party for the second time since (re)democratization in the early 1990s. It argues that Ghana's democratic political system survived the closeness and intensity of the 2008 elections because it has developed stabilizing characteristics: an independent Electoral Commission and transparent electoral processes, integration of the political elite alongside the creation of norms and institutions structuring elite behaviour, and the institutionalization of political parties. The closely competitive elections are the result of a two-party system where voters and political elites are mobilized around two political traditions. These political traditions provide ideological images, founding mythologies and political styles for the parties. Thus, Ghana is different from several African countries where parties split or form around leaders, who bring their popular support base with them. It is also different in that elections are not dominated by ethnic politicization, because the two main parties in Ghana have a strong political support base in most regions and party identification is based on cross-cutting social cleavages of which ethnicity forms only one part.
National reconciliation or polarisation? Preliminary reflections on the politics of the Ghana National Reconciliation Commission
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- F Delgado
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Articulating the links between transitional justice and development: Justice and social integration
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Reconciliation after violent conflict. A handbook. International Institute for Democracy and Electoral Assistance
- M Freeman
- P B Hayner
National reconciliation in Ghana: Prospects and challenges
- E Gyimah-Boadi
The quest for national reconciliation in Ghana: Challenges and prospects
- K Boafo-Arthur
Brazil truth commission arouses military opposition
- G Duffy
From truth to transformation: The Truth and Reconciliation Commission in South Africa
- B Hamber
- S Kibble
Defeating hatred with truth: An argument in support of a truth commission as part of the solution to the Israeli-Palestinian conflict
- M A Weiner
After oppression: Transitional justice in Latin America and Eastern Europe
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- M Vormbaum
Resistance to change: Brazil’s persistent amnesty and its alternatives for truth and justice
- P Abrão
- M D Tirekky
Liberia’s Truth and Reconciliation Commission: An interim assessment
- W A Long
The National Reconciliation Commission and reconciliation in Ghana: An assessment
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Truth and memory: Drafting a truth commission mandate - A practical tool
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Truth seeking: Elements of creating an effective truth commission
- E González
- H Varney
Oputa Panel (HRVIC) timeline
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National Reconciliation Commission (Ghana)
- F Oduro
Ghana’s National Reconciliation Commission: A comparative assessment
- N Valji
Confronting human rights violations committed by former governments: Principles applicable and political constraints
- J Zalaquett