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Transitional Justice in Africa: The new African Union policy pushing the frontiers of transitional justice

Written by: Dr Solomon Ayele Dersso
Tuesday, August 20th, 2019, 5:03
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OPINION

 

Transitional Justice in Africa: The new African Union policy pushing the frontiers of transitional justice

 

The African regional order has achieved a major feat in 2019. After almost a decade of legislative process, the African Union (AU) Assembly, the highest decision-making body of the AU made of the Heads of State and Government of AU member states, adopted the AU Transitional Justice Policy at the summit held in Addis Ababa, in February 2019. This followed the elaboration and adoption, by the African Commission on Human and Peoples’ Rights – AU’s premier human rights body – of a landmark Study on Transitional Justice and Human and Peoples’ Rights in Africa.

 

Together, these two normative documents, which were developed with technical support from the Centre for the Study of Violence and Reconciliation (CSVR), present the most comprehensive, cutting edge and convention transcending articulation of transitional justice by an international organization. While these documents drew on useful contributions of existing standards and practice, they also sought to problematize and rectify the major drawbacks of the mainstream discourse and practice of transitional justice, thereby mapping new frontiers of transitional justicedrawing on the transitional justice experiences of various countries on the continent.

 

In a departure from conventional wisdom and drawing inspiration from the experience of Colombia’s peace agreement, the two instruments define the core challenges of transitional justice to be political, socio-historical and structural rather than being matters requiring criminal probing only. Apart from confining themselves to the actions required to remedy the wrongs done and non-impunity, these instruments advance a conception of transitional justice that entails measures that facilitate ‘fair institutional, social and economic systems of governance and inclusive development.’

 

Eschewing a winner-takes-all or winners and losers approach to transitional justice dominant in the mainstream discourse and practice that confounds existing patterns of divisions and tension, the two instruments highlight approaches emphasizing conciliation, community participation and restitution as well as healing and restoration of broken social and institutional relationships. Accordingly, going beyond the limited and flawed focus on retribution, these instruments, as Chairperson of the AU, His Excellence, Mr MoussaFaki noted,‘will be of great assistance to countries in addressing the challenges of reconciliation, social cohesion and nation-building more effectively, all of which are central to peacebuilding and sustainable human development.’

 

These documents introduced a number of other innovations as well. For example, drawing on the lessons from South Africa’s experience, they envisaged TJ approaches that combine not only the civil and political rights dimension but also the socio-economic rights dimension of transitions. Emphasis is thus put, as pointed out in the African Commission’s study, on the need for ‘going beyond the mainstream focus on civil and political rights violations to address economic, social and cultural rights violations, historical and structural inequalities, and issues of sustainable development’. Additionally, it is also noted that the various experiences on the continent ‘highlight the importance of taking local conceptions of justice into account, especially in terms of collective approaches to justice and reconciliation’ and ‘acknowledging the differential impact of conflict on women and the need for women’s participation in the design and implementation of TJ.’

 

Addressing the thorny issue of the peace versus justice debate, the policy and the African Commission’s Study introduced a bold concept of balancing, recognizing the unavoidable tensions between these interrelated but at times competingTJ objectives. The concept of balancing as elaborated in these instruments thus accepts both the necessity and legitimacy of striking the delicate balance and achieving a just compromise based on both a conception of accountability that goes beyond criminal punishment, and identification of institutional and policy innovations that emphasize less the adversarial approach of criminal justice.This balancing encourages creating conditions that facilitate acknowledgement of responsibility and the suffering of victims and hence opportunity for cooperation and rehabilitation of perpetrators, taking account of the interchangeability and simultaneous coincidence of positions of victimhood and perpetration in some situations. One thus agrees with the hope that Chairperson Faki expressed that such articulation of transitional justice is sure to make ‘a significant contribution to the global discourse and practice on transitional justice’ and help steer the debate on peace and justice ‘towards a more balanced and, ultimately, more effective approach.’

 

At a time when there is widespread recognition of the limits of international justice, notably that of the International Criminal Court (ICC), these documents present much needed legal materials to fill the gaps resulting from the limited scope of application and approach of ICC based justice and to offer mechanisms for translating ICC based principles into national processes. The value of such an avenue and its possibility has already been demonstrated from how the delicate balance between peace and justice has been successfully and sensitively struck in the Colombia peace agreement referred to above, which has beenhailed as a landmark example in the field of designing transitional justice.

 

Beyond and above its elaboration of a conception of transitional justice sensitive to the historical, structural, political and socio-economic conditions of the countries in transition and the need for non-impunity, the value of these instruments lie in the useful guidance that they proffer for countries engaged in developing and implementing transitional justice processes. Given the large number of countries in transition and those that will be in transition on the continent, such guidance helps African states not only in identifying the range of options and the rich normative resources available for developing and implementing TJ processes tailored to their specific conditions. They also help societies in transition to understand the margin of maneuver or appreciation available to them in pursuing transitional justice processes and doing so in compliance with and drawing on the applicable norms including the human and peoples’ rights instruments key for non-impunity and redress for violations.

 

These instruments are alsolandmark achievements in terms of the processes of their elaboration and the range of voices they represent. Mirroring the process of their elaboration, these new transitional justice instruments reflect rich synthesis of the voices ofvarious sectors of the public including civil society organizations, representatives of affected communities, experts from diverse disciplines and state representatives.In this sense, the process is manifestation of what Thomas Tieku calls the 3-dimensional character of AU norm development and implementation – reflecting the role of Afrocrats (AU technocrats), Outisiders (actors with no formal role in the AU but with influence in the AU) and state actors.

 

While acknowledging the heavy weight of power dynamics and politics in the designing and implementation of TJ processes, the two instruments also emphasize inclusiveness, participation and recognition of the diverse experiences and expectations of all sections of society, including with particular attention to youth and women as well as marginalized or vulnerable groups.   

 

Despite the fact that the two documents stand on their own and have different focus and emphasis, they are also inter-related not only in the nature of the subject they cover but also in their conceptual and normative approach to the question of transitional justice.It was no coincidence that the two documents were launched simultaneously during the 64th ordinary session of the African Commission held in Sharm El Shiekh in May 2019. It is worth noting that AU Commission Chairperson, His Excellency MrMoussaFakiMahamatpointed out in his preface to the TJ Policythe complementarity of the two instruments. Indeed, to benefit from the full scope of the richness and depth of the conception and resources of transitional justice that they systematically articulate and present one has to rely on and make use of these documents together.

 

Beyond articulating a rich conception of transitional justice, what also makes the AU TJ Policy and the African Commission’s Study valuable is the homage that they pay to the rich and diverse TJ experiences of African societies and the wealth of resources that African legal instruments avail for designing and implementing tailor made TJ processes.With the new boundaries they have opened up, they also represent thenorm entrepreneurship role of the AU system, which over the years made major contributions to various areas of international law. These are the latest but ground breaking additions contributing to international discourse, norm setting and practice.

 

Without a doubt, these are hugely important instruments carrying far reaching normative, policy and scholarlyramifications that should be welcomed. However, their normative, policy and discursive benefits highlighted in the foregoing will not be harvested by the mere fact of their elaboration and adoption. A great deal depends on how these two instruments inform and shape TJ initiatives and how various actors including AU institutions, member states, civil society organizations, affected groups and research and academic institutions draw on and engage them as part of their implementation, advocacy, research and teaching activities.

 

Dr Solomon Ayele Dersso, a legal scholar with a specialization on human rights and transitional justice and analyst of African affairs, is a member of the African Commission on Human and Peoples’ Rights and adjunct Prof of Law at the College of Law and Governance Studies, Addis Ababa University. Follow him on Twitter @SolomonADerrso

 

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