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Hellen1 2

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Richard Mvula
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BACKGROUND AND INTRODUCTION

As is noted by the founding charter of the organization of African unity,


“freedom, equality, justice and dignity are essential objectives for the
achievement of the legitimate aspirations of the African peoples, […] and […]
in order to translate this determination into a dynamic force in the cause of
human progress, conditions for peace and security must be established and
maintained"1, the need for just peace and human dignity was the main
reason for the perils of the African continent and it contributed more to the
fight against colonial rule. After the end of direct colonial rule, however, the
excitement from independence never lasted long as many nations could not
decipher the instruments of evil that the colonialists used in the pre-
independence. Consequently, many nations resorted to one-party
dictatorship, bad governance and/or military coups. This led to gross
violations of human rights, and the way people respond to the legacy of
these massive and serious violations is termed transitional justice.

Accounting for the events of the past, mending the resultant divisions,
rebuilding national cohesion and achieving impartial democratic
transformation are the major obstacles faced by a transitioning country. For
instance, Tunisia in 2011, Burkina Faso in 2014 and the Gambia in 2017.
Besides the need to the violations of the past, the conflicts and violations
they impose on the African society also raises the demand for removing the
circumstances that made the violations passivity and for creation of a just
society that respects people's rights and dignity.

Despite transitional justice Initiatives being carried out across the continent,
they are not always seen to have a transitioning effect. This was the case in
Nigeria after the end of Biafran Civil war. There is a wide range of judicial
and non-judicial options available to help in the transitioning from conflict
and violence to peace and justice. These approaches include reconciliation,
reintegration of fighting forces, reconstruction programs, accountability
measures and investigation commissions.

The processes mentioned above dwell on the societal need for political
reconciliation and different beliefs and norms, including those in the ACHPR.
From ACHPR' pperspective, there are three concerns in the transitional
process:1) the identification of ongoing violence and violations due to armed
conflicts and the provision of remedial measures fire victims. 2) the
institutionalization of legislative and institutional measures to give effect to

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the rights in the Charter and 3) the establishment of a political system willing
and able to enforce these legislative and institutional measures.

The following are the TJ processes that have been implemented in various
African counties.

1) Establish the truth through commissions of Inquiry or investigate truth


commissions. 2) initiate accountability processes through prosecutions etc a
well as attempt to undertake vetting 3) provide redress for victims through
reparation programs. 4) make use of local and community-based processes
of justice (traditional just).5) initiate reconciliation programs aimed at
rebuilding social relationships and national consensus and,

6) provide for and initiate institutional reforms for democratic and


transformative remaking of the political and socioeconomic systems of
governance.

Forms of Transitional Justice Processes Used In Africa.

In various transitioning countries, criminal proceedings have been utilized to


foster accountability and restore the rule of law. Such trials have taken place
in national courts, including regular courts, specialized courts 2, and hybrid
courts3, as seen in Sierra Leone and proposed for the Central African
Republic and South Sudan. Rwanda's Gacaca courts employed a community-
based jury system aimed at acknowledging victims' suffering and holding a
large number of suspects accountable for their involvement in the 1994
genocide.

There is also an increasing trend of military tribunals being established to


hold soldiers accountable for their actions, as seen in countries like the
Democratic Republic of Congo, South Sudan, and Tunisia, although not
always within a broader transitional justice framework. In Uganda, divisions
within the judiciary have been set up to enforce international criminal law,
while Sierra Leone and Chad have created courts specifically dealing with
international crimes. International courts have also been used for
prosecutions, though with mixed success; while Rwanda and Sierra Leone
made use of international tribunals for justice, Ethiopia's efforts to prosecute
crimes by Fascist Italy and South Africa's apartheid crimes were
unsuccessful. Cases have been pursued under the International Criminal
Court (ICC) framework but often with limited outcomes.

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Criminal prosecutions in post-conflict settings often face contextual
challenges. For instance, the Gacaca courts and Ethiopia’s Red Terror trials
were criticized for not meeting international fair trial standards. Local judicial
systems frequently lack the capacity to manage complex mass crime cases
adequately. In Rwanda, the enormity of accused individuals (up to one
million) and the diminished judicial infrastructure post-genocide led to the
establishment of Gacaca courts, which involved community members in the
pursuit of accountability and truth-telling. However, these courts faced
accusations of lacking impartiality and fairness. The reality of transitional
justice involves difficult trade-offs between accountability and adhering to
international fair trial norms; nonetheless, these trade-offs can be acceptable
if they serve the public interest.

Truth,reconciliation and social healing process

While criminal prosecution can sometimes be pursued, it inherently has


significant limitations when it comes to addressing the human and peoples’
rights issues that arise from widespread violations. As Justice Albie Sachs of
the South African Constitutional Court notes, “[courts focus on individual
accountability in a limited way […] and often overlook the broader social
processes, cultural dynamics, and institutional frameworks that contribute to
these violations.”4 One effective approach for giving victims a platform to
acknowledge their suffering, while providing perpetrators the chance to
recognize, repent, and seek forgiveness for their actions, is through truth
(and reconciliation) processes5. These processes involve legally mandated,
non-judicial national investigative bodies made up of respected independent
figures who examine and report on the nature and patterns of human rights
abuses over specific periods or in relation to particular conflicts.

According to the African Charter, various mechanisms can be implemented


to address human rights violations, as long as they provide redress and
accountability. It is crucial that the selected mechanism aligns with
expectations related to remedying human rights abuses while promoting
peaceful resolutions. One of these legal expectations is the requirement to
investigate and determine the facts surrounding the violations, such as their
nature, contributing circumstances, and the individuals responsible for
them.In transitional contexts characterized by unstable sociopolitical and
weak institutional environments, this expectation can also be met through
non-judicial processes. Truth and Reconciliation Commissions (TRCs) are a

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prevalent non-judicial response used after significant crises. Though their
structure and mandate vary among countries, TRCs have been established in
over 16 African nations. However, several concerns regarding TRCs have
emerged when viewed through the legal expectations of the African Charter.
One pressing issue is the establishment process for these commissions,
which must adhere to the Charter's standards of independent and credible
investigations. Ensuring a transparent and participatory approach in forming
these commissions is essential. For instance, the initial appointment of
commissioners for the Liberia TRC faced significant pushback due to
questions about the legitimacy and credibility of the process, as well as the
independence of those appointed. Similarly, the selection of Bethuel Kiplagat
as chairperson of the Kenyan Truth, Justice and Reconciliation Commission
(TJRC) was met with challenges from various stakeholders, including TJRC
commissioners and civil society, who called for his resignation due to
concerns over his suitability.

Local

Considering the limitations of retributive justice in transitional contexts, post-


conflict societies in Africa have begun to explore local justice systems and
indigenous methods of conflict resolution and reconciliation 6. A central goal
of these indigenous approaches is to create a more comprehensive
framework that incorporates local cultural values and belief systems into the
mechanisms designed to address injustices. Often referred to as local or
indigenous justice, these methods are also termed "traditional," a
Eurocentric label implying that non-European justice practices are primitive
and lack human rights legitimacy. Despite their inherent flaws—like any
justice system—these local processes are crucial for administering justice
and resolving disputes for a significant segment of the population across
various regions in Africa.

The African Charter, by underscoring the continent's values of social


cohesion and endorsing a "rights culture," provides a robust legal foundation
for utilizing local or indigenous mechanisms in transitional justice (TJ). Article
17(2) emphasizes individuals' rights to participate in cultural life, while
Article 22 acknowledges the collective rights of peoples to cultural
development. Furthermore, Article 29(7) highlights the importance of
preserving and enhancing positive African cultural values, which include local
dispute resolution mechanisms. Examples of innovative local TJ processes
include the Mato Oput in Uganda, Gacaca in Rwanda, Magamba spirit
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mediums in Mozambique, Fambul Tok in Sierra Leone, and Bashingantahe
(Council of Wise Men) in Burundi. Many indigenous practices share similar
principles, focusing on restoration, truth-seeking, acknowledgment,
apologies, and reparations through compensation or service. These
approaches are restorative, aiming to repair harm to victims, rehabilitate
offenders, restore harmony, and rebuild relationships.

However, there are concerns regarding the sufficiency of local justice


systems to address mass atrocities without significant reform. While using
local justice processes for large-scale violence is not entirely unfamiliar in
African societies—as demonstrated by the Gacaca courts in Rwanda—there
are lingering questions about their effectiveness in handling gender-based
violence that arises during conflicts. Although these methods possess
community and cultural legitimacy and are accessible, concerns persist
about their potential to reinforce oppressive structures or be manipulated
without appropriate safeguards. Additionally, the need for greater
involvement of women and youth in these processes is a significant area that
requires attention.

Current issues

In addition to the specific challenges faced by various transitional justice (TJ)


mechanisms established in African nations, broader issues have also
emerged. These include the role of gender in TJ processes and the ongoing
debate between peace and justice. This discussion prompts considerations
regarding the timing and sequencing of TJ initiatives, as well as how to
balance divergent TJ goals, which involve adaptations to criminal
proceedings and the stipulations surrounding amnesty and clemency.

Significant strides have been made in acknowledging the distinct


experiences of women and men during conflict and in the aftermath. This
recognition has gained traction over the past two decades through the
establishment of regional and global norms, particularly regarding sexual
and gender-based violence.7 Notably, the International Criminal Tribunal for
Rwanda defined rape in international law in 1998 8, recognizing its use in
genocide, while the Special Court for Sierra Leone was the first to convict
individuals for forced marriage in 2009. The 2016 life sentence of former
Chadian president Hissène Habré for war crimes, including sexual violence,
marked a significant advancement for women’s rights in Africa 9. The

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successful prosecution of gender-based crimes can largely be ascribed to
tailored measures, such as all-female hearings and supportive court
environments, along with legal teams that adopt a progressive stance
informed by the local context. Recent developments now address gender-
based crimes against all genders.

Incorporating gender experts into TJ processes has proven beneficial. For


instance, the AU Commission of Inquiry into South Sudan was innovative in
this respect, utilizing a range of expertise to assess the inclusion of gender
considerations. Article 20 of the Maputo Protocol guarantees women’s rights
to engage in peace promotion.

Despite these advancements, challenges persist. One major concern is the


discrepancy between the aspirations of legal frameworks and their actual
implementation10, which is often hindered by entrenched social attitudes.
Issues of procedural fairness are also notable, particularly concerning women
accused in such processes11. There remain significant barriers to women’s
participation and representation in peace and TJ processes, calling for policy
measures that foster inclusive environments as advocated by UN Security
Council Resolution 1325. 12

Certain Truth and Reconciliation Commissions (TRCs), such as those in Sierra


Leone, Liberia, and South Africa, have worked to ensure that women's
experiences are acknowledged in their final reports, addressing violence
against women and proposing reparations that consider their specific
situations. The TRC in Sierra Leone specifically mandated the inclusion of
victims' accounts of sexual abuse. Morocco has been recognized for its
progressive approach to reparation, providing equal payments to female
relatives of victims, thereby challenging traditional inheritance laws.

In conclusion, the implementation of TJ processes has, as seen from the


above analysis, faced both challenges and successes in Africa.

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