This is a guest article by Samuel Wai Johnson, a former graduate student at Ohio University
Truth and Reconciliation Commissions (TRC’s) are gaining prominence around the globe. TRC’s are established to help societies that have been through tragic political periods, such as repressions and civil wars, come to terms with the tragedy. Therefore, TRC’s complement a society’s efforts at restoring public trust in national governance institutions and serve as viable transitional justice mechanism that brings the benefits of justice to victims of these circumstances and the political culture. As will be seen below, the biggest challenge of this type of transitional justice is ensuring reconciliation and establishing justice for the victims.
In his work, “Reconciliation as Political Necessity: Reflections in the wake of Civil and Political Strife”, Charles Villa-Vicencio states that such a tension between justice and reconciliation and revenge, prosecution and amnesty expresses the internal struggle between deep emotions, unresolved memories and uncertain futures within both the victims and the victimizers. Thus, while TRC’s provide a forum for reconciliation and accountability for the violations of the human person, the choice of purpose for a TRC in any country is the country’s decision. To this end, Tina Rosenberg, in her work titled “Afterword: Confronting the Painful Past”, in Martin Meredith, “Coming to Terms: South Africa’s Search for Truth”, suggests that a country’s decisions about how to deal with its past should depend on the type of dictatorship or war endured, the type of crimes committed, the level of societal complicity, the nation’s political culture and history, the conditions necessary for a recurrence of dictatorship, the process of the transition, and the power and resources of the new democratic government.
The mandate of the TRC’s is to provide a balance between restorative justice and punitive justice. However, while it is argued that TRC processes are insufficient in establishing the truth of past crimes and an avenue for victim’s catharsis to promote peace and reconciliation, there continues to be increased demand for TRC processes. This growing interest might be grounded in the desire for architectures to identify wrongs of the past, and punish those that bear the greatest responsibility for these wrongs which are mostly human rights violations. Many new governments coming to power in the wake of the establishment of TRCs, according to Priscillia Hayner, author of “Same species, different animal: how South Africa compares to truth commissions worldwide”, in Charles Villa-Vicencio and Wilhelm Verwoerd, “Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa” have turned to mechanisms outside the judicial system such as TRCs to confront the horrific crimes of the past.
In the case of the South African Truth and Reconciliation Commission, the endeavour was to achieve forgiveness and reconciliation, without impunity. In support of this approach, Naomi Roht-Arriaza argues in her book, “Amnesty and the International Criminal Court”, that if perpetrators take a stand before an independent Truth and Reconciliation Commission that hears petition for conditional and accountable amnesty, they should not face prosecution. In this case, the purpose for the award of amnesty is reconciliation and not to protect a perpetrator from prosecution. This, however, raises the following question: How does a TRC process ensure reconciliation without shielding perpetrators of heinous crimes from prosecution. In answer to this question, James Crawford of the University of Cambridge states:
It’s going to require extreme care by the prosecutor. There may be some problems there with the capacity to subvert those processes if they are reasonable, and we’ll just have to hope that the institutions within the court take a sensible view about it. But complementarity extends to covering internal processes which don’t necessarily involve prosecutions of individuals, so there’s no reason why the principle of complementarity ought not to cover an appropriately constituted truth commission.
Crawford suggests that one way to evaluate the international legitimacy of a TRC is to look at the process of its legislation so that it is not just a scheme used by warring factions to sign their amnesty as they exit the stage. Was the process leading to the establishment of the TRC endorsed by other stakeholders other than faction leaders? Was it freely ratified by the successor regime? How democratic or transparent was the process? To what extent were voices of stakeholders’ especially civil society incorporated into the TRC Act? Incorporating the active engagement or participation of civil society and other non-factional stakeholders in the legislation of the TRC ensures that the creation of the TRC is not just a process that faction leaders and their commanders can use to grant amnesty to themselves and escape accounting for human rights violations they may have committed during the conflict. Alternatively, how viable can these commissions be since peace accords are negotiated by the same elites who were involved in the perpetration of conflict? To this end, Charles Villa-Vicencio suggests the following minimum criteria for evaluating the legitimacy of a TRC:
- There needs to be convincing evidence that the majority of citizens endorse the provision as a transitional justice mechanism;
- There should be the disclosure of as much truth as possible concerning the gross violations of human rights; – Accountability of those responsible for gross violations of human rights, recognizing that this need not to be in the form of retributive sentencing by the state;
- The mechanism provides a form of cathartic relief or reparation to victims whose rights are suspended by a qualified amnesty provision;
- The suspension of prosecutions in a transitional process does not serve to abrogate requirements of international law;
- A forum in which victims and survivors may tell their stories and questions; – Prosecutions should remain an option both during and after the TRC against those perpetrators who did not adequately participate in the process.
The articles in this series are not intended to pass a judgment on the work of the work of the TRC; the intension is to examine the process of truth-telling and prosecution and the question of international legitimacy. Primarily this series intends to evaluate the contribution of the truth commissions in the state building process in Africa. Out of the 30 truth commissions that have taken place worldwide, African countries that have used this type of transitional justice include, South Africa, Rwanda, Sierra Leone, DRC, Morocco, and most recently Liberia. In addition, debates have started in Kenya and Zimbabwe about establishing truth commissions to address the human rights violations that occurred in the political violence in both countries. This is an attempt to discuss the implications of the TRC’s for the African state and thus the series will feature articles from Liberia, Kenya, Ghana, South Africa, and Rwanda amongst other countries. What lessons can other African countries emerging from conflict can learn from the experiences of these above countries? What does this mean for the evolution of the African state, the state as an entity and the citizens of that state? What are the implications for the African Union’s policy on post conflict reconstruction and development in Africa?