Any “One-Size-Fits-All” Approach to Transitional Justice is Doomed to Fail

20. Dezember 2018   ·   Annah Moyo

The African Union’s transitional justice policy development process shows that a society’s context determines timing and sequencing of any transitional justice measure. Thus, the German government should prioritize collaboration with African actors in order to design effective and context-specific policies. Also, it is important that the strategy includes provisions for its implementation.

Since the 1990s, the African transitional justice debate has gained momentum. Following the Rwandan and South African efforts of addressing their violent pasts, a number of African countries have followed suit. They have set various transitional justice processes in motion to cope with their legacies of abuse, to ensure accountability, to serve justice and attain much needed reconciliation. Over the last three decades, the continent has embarked on a vast transitional justice journey from Sierra Leone, Liberia, Uganda, Mozambique, Tunisia and the Ivory Coast to South Sudan, Burundi, Kenya, Mali and the Central African Republic. Thanks to Africa’s vast experience with the implementation of transitional justice measures, academics have grown more interested in the topic and in more practical policy considerations on how to improve future interventions and practices. 

At the policy level, the African Union (AU) is leading a continent-wide transitional justice policy development process with the technical support from the Centre for the Study of Violence and Reconciliation (CSVR). The aim is to provide AU member states emerging from violent conflicts, repression and war with the tools to develop their own context-specific strategies and policies towards sustainable peace.

The African transitional justice concept

The conceptualization of transitional justice in the African context takes into account Africa’s past experiences with and legacies of its violent history and traumas of slavery, colonialism, apartheid, systematic repression, human rights violations, civil wars, governance deficits and other developmental challenges. Given this past, transitional justice in Africa considers both international legal norms and practices as well as contextual priorities and lived realities of African people.

The African conceptualization therefore embraces transitional justice as an array of wide-ranging measures that seek to address the consequences of past violations, divisions and inequalities in an effort to achieve peace. This conceptualization prioritizes informal processes and traditional or local justice approaches over formal ones. They emphasize community participation, reconciliation and restorative justice. Diversity management, ethno-cultural nuances to justice, socio-economic and developmental dimensions of peace and justice represent other essential considerations of the African transitional justice concept.

The policy has amply provided for all these considerations which are unique to Africa’s experiences. However, how far back do we go to address Africa’s past? Indeed, current manifestations of conflict, governance deficits, violence and political unrest are a direct result of the unresolved legacies of the past. The subject of redistributive justice and land redistribution, an outstanding issue of most African transitions from colonial rule to post-colonial democratic order, illustrates this perfectly.

The context determines timing and sequencing in any given situation

The eight year-long African Union’s transitional justice policy (AUTJP) development process has provided a number of lessons. Firstly, it is vital to consult various stakeholders such as AU Member States (who are the primary implementers of the policy), transitional justice experts, practitioners and researchers, AU organs with transitional justice mandates, victim groups and affected communities. These consultations are important during the policies’ development, review, and validation processes as well as buy-in. Given the policy’s continental reach and its aim to facilitate coordination between diverse state and non-state actors engaged in transitional justice processes, the continent-wide consultations were essential to secure a continental buy-in and support for the policy. This support is evidenced by an increasing number of African countries that are already using various versions of the draft policy document to inform their national transitional justice policies and processes such as Mali and The Gambia.

Secondly, the policy’s development process showed that a society’s context and experiences during conflict, war and repression matter. They should be prioritized when implementing transitional justice programs. In a society emerging from conflict, the context determines the timing and sequencing of transitional justice processes in any given situation. There is no “one-size-fits-all”. 

Key to the African transitional justice architecture is the need to have a policy that addresses emerging challenges presented by resurgent conflicts and stalled governance reforms, the complex manifestations of conflict and their root causes, various dimensions of the legacies of Africa’s past (including inequality, marginalization, exclusions and socio-economic challenges) and lastly, the lived realities of African people. This can be achieved by pushing boundaries on some of the transitional justice approaches that have shaped conventional thinking and by documenting the experiences and lessons from Africa’s numerous historical and present-day initiatives in order to shape ongoing and future transitional justice interventions. For Africa, restorative, retributive and redistributive justice is a priority.

The German government should prioritize consultation, collaboration and cooperation

There are several lessons to learn from the AUTJP development process:

Firstly, the development process of the German government’s transitional justice strategy must prioritize coordination and collaboration between key ministries involved in the implementation of the transitional justice strategy. This collaboration can only enrich the strategy and help improve its effectiveness once adopted, by building multi-disciplinary and inter-ministerial support. 

Secondly, the developing process of the German transitional justice strategy must be consultative and encompass transgenerational actors, especially the youth, affected communities and the strategy’s targeted beneficiaries. Moreover, in so far as African countries are seen as the strategy’s beneficiaries, the government also has to consult key African transitional justice experts, practitioners and policy makers. They must be involved in the development, finalization, and implementation of the strategy. More specifically, consultations with in-country transitional justice experts, policy-makers, researchers and practitioners should be prioritized for developing transitional justice programs for country-specific interventions. Such consultations engender an African context-responsive transitional justice strategy whose processes and interventions address the lived experiences of its beneficiaries.

The transitional justice strategy must not only address the consequences of current African conflicts, but also past challenges as well as the consequences of the structural and systemic perpetuation of inequality, marginalization and exclusion inherited from the colonial era. To this end, over and above the elements of truth, justice, reparations and guarantees of non-recurrence, the following dimensions of transitional justice should imperatively be taken into account.

Redistributive, restorative, transformative and developmental

Redistributive justice is crucial in addressing inequalities and marginalization resulting from the colonial era. For example, it consists of giving back property such as land to expropriated owners.

Restorative justice is essential for the dignity of victims of conflict and violence. The aim is to repair the damages caused by conflicts and violence and to restore victims’ and affected communities’ pre-conflict conditions.

Transformative and developmental justice aims at addressing victims’ structural and systemic vulnerabilities through the improvement of their circumstances and their political empowerment.

Tackling ethno-cultural and socio-economic diversity is imperative

Diversity management is vital given the ethno-cultural, tribal and religious dimensions of African conflicts. Indeed, they often represent both root causes of conflict and fault lines of marginalization and exclusion.

Also, addressing the socio-economic dimensions of conflict through transitional justice is essential as they often constitute root causes for violence and human rights abuses.

Finally, it is important that the German government’s strategy includes provisions for its implementation. This ensures that implementation is embedded within the strategy. Moreover, it provides clarity on various actors’ roles and responsibilities from the onset. Furthermore, once adopted, the strategy should prioritize support and partnership with national and continental transitional justice mechanisms in place. However, such support should not undermine local efforts and approaches to transitional justice, but should complement them and contribute to their effectiveness and success.

English Transitional Justice

Annah Moyo

Annah Moyo is the Advocacy Programme Manager at the Centre for the Study of Violence and Reconciliation (CSVR).