A Comparative Study of Transitional Justice: Learning from the Experiences of African Countries

This study investigated the role of mediation in grassroots transitional justice processes. The major aim of the study was to understand the role of mediation in transitional justice processes, ascertaining its effectiveness as a grassroots transitional justice mechanism and how its demand for use in transitional justice can be increased. The study was carried out using action research methodologies, with a mediation project carried out in the Makoni District of Manicaland in Zimbabwe. The mediation project involved community members addressing transitional-justice-related conflicts using mediation as a tool for conflict resolution. The mediators were provided with mediation skills through a training programme and their work was evaluated thrice to ascertain the role and impact of the mediation interventions on transitional-justicerelated conflicts. The project was termed Mediation for Everyday Transitional Justice because it was implemented in a natural community’s daily environment, by local people and for the local communities. The continuing failure of transitional justice mechanisms in Zimbabwe amid continued human rights violations justifies the undeniable value of this study. Zimbabwe’s past transitional justice efforts (since 1980, when the country became an independent republic) failed to build sustainable peace hence the country’s continued relapse into political and socio-economic turmoil. However, with appropriate transitional justice interventions that are built on grassroots-informed processes, sustainable peace is conceivable in Zimbabwe. Mediation, as an alternative dispute resolution process that is both persuasive and non-retributive, offers an interesting opportunity to the practice of transitional justice. The research concluded that the role of mediation in transitional justice is to facilitate truth telling, reparations, healing, and reconciliation among disputants without the need to use national-level transitional justice infrastructures. This means that, at the grassroots level, transitional justice processes can take place without waiting for the statist transitional justice approaches. However, in cases where the past human rights violations being addressed are tied to structural violence, driven from outside the community, local mediation processes may not be possible without the consent, cooperation, and willingness of those who sustain such conflicts. In addition, mediation cannot play any significant role in enabling prosecutorial justice, memorialisation, and institutional reforms at the grassroots level. Prosecutorial justice cannot be achieved because perpetrators can withdraw quickly when possibilities exist to be held criminally accountable for past human rights abuses. Institutional reforms also require changing governance policies and practices which are issues beyond the control of specific local communities. The study also observed that mediation is an effective tool for grassroots transitional justice issues because it is efficient, it saves time and financial resources, and it can be undertaken by local actors. To increase its demand and use in transitional justice processes at the grassroots level, these is a need to increase communities’ awareness of the importance of mediation in transitional justice, provide mediation-skills capacity-development interventions to potential mediators, and enhance the agency of various mediation actors at the grassroots levels.

Transitional justice ideas, processes, and institutions offer post-conflict and tormented societies the glimmer of hope of a more stable future erected upon values of the rule of law, accountability, justice, post-conflict reconstruction, and development. Societies wracked by violence see transitional justice as offering the tools to midwife a democratic, rule-of-law state. Broadly speaking, transitional justice can be said to be concerned with how societies address legacies of past human rights abuses, mass atrocity, or other forms of severe social trauma, including genocide or civil war, in order to build a more democratic, just, and peaceful future. Epistemically, the field of transitional justice is variegated, comprising theoretical debates, the comparative assessment of domestic accountability schemes, international criminal justice, the study of truth commissions, and ethical-legal debates concerning the morality of compromise on accountability for gross and systemic violations of human rights. Several subthemes to the discipline suggest the absence of complete coherence in its characterization and praxis. The focus of this article on transitional justice in Africa domesticates the exploration of the subject matter in the African experience. Transitional justice in the African context takes on a special character and orientation. While the core objective of transitional justice praxis in Africa remains similar to transitional justice orthodoxy in the international context—namely, the fight against impunity and the push for accountability and post-conflict reconstruction and development—the emerging consensus points to the effective realization of socioeconomic justice, gender justice, and the right to development as equally critical, if not central, to the redress of past injustices. Instrumental to the successful delivery of this broadened set of objectives is a combination of traditional and nontraditional frameworks embedded in a wide range of laws, policies, institutions, and community norms and customs. In combination, they present the rough contours of an African model and mechanism for not only dealing with the legacies of conflicts and violations of human rights, but also addressing governance deficits and developmental challenges in line with the African Union’s Agenda 2063. This article is structured around a number of themes aimed at deepening appreciation of the field of transitional justice in Africa, namely: Transitional Justice Laws, Policies, and Norms; Transitional Justice Accountability Systems; criminal accountability in Africa’s transitional justice praxis; Human Rights, Democracy, and Governance; Decolonization and Postcoloniality; Conflict and Transitional Justice; Transitional Justice Goals and Outcomes; Reimagining the Field of Transitional Justice; and journals publishing on transitional justice.

The article examines the EU’s policy framework, programs and tools on support to transitional justice, and evaluates their impact and challenges. Transitional justice refers to the various ways of addressing the past human rights violations and serious crimes that occurred in contexts of political transition, such as post-conflict or post-authoritarian situations. The EU has adopted a comprehensive policy framework on support to transitional justice in 2015, which defines its principles, objectives, and modalities of engagement with partner countries and international and regional organisations on transitional justice issues. The EU has also used various instruments and actions to support transitional justice initiatives worldwide, such as providing financial assistance, engaging in political dialogue, offering technical expertise, and advocating for transitional justice norms and standards. The article also illustrates how the EU has supported transitional justice processes in different contexts and regions, such as dealing with the legacy of World War II, the fall of communism in Central and Eastern Europe, the war in the former Yugoslavia, and the Arab Spring. The article concludes by identifying some of the achievements and shortcomings of the EU’s involvement in transitional justice processes, such as contributing to accountability, recognition, trust, reconciliation, and non-recurrence; but also facing inconsistency, selectivity, conditionality, interference, cooptation, politicisation, fragmentation, duplication, etc. The article also suggests some ways to improve the EU’s policy framework, programs and tools on support to transitional justice, such as enhancing consistency, coherence, coordination, complementarity, and adaptability. The article also explores how the EU’s role and approaches in the field of transitional justice can affect its own identity and credibility as a global actor that promotes human rights, democracy, and the rule of law as core values of its external action.

Responding to sexual violence in armed conflict

Through the Comprehensive Peace Agreement and the Interim Constitution of 2007, Nepal has vowed to address the conflict-era human rights violations including through adopting a credible transitional justice processes. However, the national commitments towards ensuring accountability for past human rights violations and ensuring non-repetition of such violations in future are yet to be fulfilled. In this context, the judicial activism appears to have been a silver lining in terms of taking forward the transitional justice issues. In this backdrop, this chapter aims to analyse the decisions of Supreme Court of Nepal pertaining to promoting accountability for the past human rights violations and to examine the strengths and weaknesses of judicial response in the light of victims’ right to effective remedy guaranteed under the international human rights treaties and jurisprudence. This chapter finally provides a set of suggestions towards strengthening the transitional justice process in Nepal.

This article analyses the Indonesian efforts to resolve past human rights abuses under the mechanism of transitional justice following the downfall of President Soeharto on May 21, 1998. The focus of analysis is the implementation of transitional justice in the cases of Aceh, Papua, and East Timor during the transitional period. This article shows that the efforts to enforce transitional justice in these cases have been faced with obstacles. Although there have been notable efforts in terms of both judicial and non-judicial to enforce transitional justice, the final results are not satisfactory. Transitional justice mechanism to resolve past human rights abuses was implemented only with half-baked and supported with half-hearted. As a result, it has failed to bring justice for the victims. There are lessons can and should be learned from these transitional justice cases for resolving other past human rights abuse cases in Indonesia today. The current Indonesian government should pay attention to the lessons in order to resolve past human rights violations in accordance with its promise during presidential election campaign in 2014. Otherwise, it is likely to repeat the same mistake and failure of justice dealing with past human rights violations.

The economic and social dimension of transitional justice has been largely ignored in favour of traditional emphasis on violations of civil and political rights. While early transitional justice processes mainly focused on criminal prosecutions for bodily integrity violations, socioeconomic issues, including economica and social rights (herein ESRs) violations, were seen just as part of background. However, scholarship and practitioners are increasingly calling to include ESRs violations in transitional justice processes. Indeed, economic and social conditions are frequently linked to human rights abuses, often constituting a cause, means or consequence of conflict and authoritarianism. Including the assessment of ESRs violations as an issue for transitional justice might serve the purpose of establishing a more comprehensive understanding of the root causes of past human rights violations as well as to facilitate the pathway to achieve a sustainable peace.

IntroductionAfrican Union (AU) since its creation has witnessed large scale violence and conflict in several member countries.1 Although violent conflicts in Africa are not new, they have drawn special attention due to the fact that they are more intense and extensive in scope, highly destructive, as civilian populations were targeted deliberately. It has produced large number of civilian victims, refugees and displaced persons. There have been gross human rights violations in these conflicts. Furthermore, owing to the fragility of African state boundaries, some intra-state conflicts have spilt over the borders and exerted pressure on neighbouring countries. For instance, the war in southern Sudan claimed more than two million lives. Violence in Africa has taken various forms ranging from genocide, as in Rwanda and Darfur beginning from 2003 till date, to interpersonal violence. Besides extremism in brutality, armed conflicts in Africa have also been characterised by warlordism, targeting of vulnerable groups, such as children, women and refugees, using children as soldiers, state sponsorship of violence, and war economies. In such situations a prompt and efficient regional organisation was required. AU as a regional organisation has shown proactiveness to solve violence and conflicts in Africa.Darfur Crisis emerged at the same time that AU was created. Moreover, the negotiations for peace to end two decades of civil war in the south was also reinvigorated. Thus, Sudan has provided an opportunity for AU to solve the crisis and establish itself as a major regional organisation. The African Union (AU) has been admirably engaged in the Darfur Crisis but has proved ineffectual, hindered by poor resources and a weak political will. Since 2004, the African Union's efforts have included the negotiation of a ceasefire, the deployment of a peacekeeping operation, the African Union Mission in Sudan (AMIS), and the mediation of a peace agreement between the belligerents in the Darfur War.This article examines the overall role of the African Union as a negotiator for peace, as a peacekeeper and one that would end the conflicts in Darfur. It also discusses the role of AU as a facilitator of comprehensive peace agreement between the Sudanese Government and the Southern Sudanese Government. African Union since its inception has acted to bring peace and stability in Africa. Such actions have been strongly reinforced by 'African solution for African problems'. It views the Sudanese crisis from this perspective as well. But even after six years of active involvement in Sudan and particularly in Darfur AU has failed to bring sustainable peace, end to the atrocities and human rights violation against the civilians nor has it been able to disarm the 'janjaweed tribal militias'.2Background to Sudanese ProblemsThe Sudanese crisis is unique to the AU. It is the largest country in Africa in terms of area. And since independence it has been suffering from an acute crisis of national identity. In this war of national identity, millions of people have perished and more than 5 millions have been displaced. The Sudanese Government has faced a violent response from the regional rebel groups in the south, east and west. These rebels are at war with the government demanding a share in resources, self autonomy and equal rights as Sudanese.Presently, Sudan has the dubious record of the largest number of internally displaced people in the world. It is the result of civil war in southern Sudan and the Darfur conflict. A peace agreement was concluded to the former cause in 2005. At the same time Darfur conflicts erupted.The Darfur Conflict is one among the many conflicts arising out of the historical grievances of discrimination inflicted by the Government of Sudan. The present crisis emerged in early 2003 when non-Arab rebels from Darfur, frustrated with attacks on their land and convinced that their interests were not being represented in the ongoing peace talks between Khartoum and the southern rebels, launched a guerrilla war on government forces (ICG, 2004, I). …

Human rights violations and violent conflicts in the Niger Delta of Nigeria have elicited interest from scholars and international agencies. Although studies provide significant insights into the conflicts in the Niger Delta, the issue of transitional justice has not been adequately considered. This article examines human rights violations and transitional justice in the Niger Delta. It begins with the conceptualization of human rights violations and transitional justice. It then offers a historical contextualization of oil production in Nigeria and an overview of the human rights situation in the Niger Delta. The key argument of the article is that efforts to ensure peace in the Niger Delta have not been associated with an effective transitional justice system. Since transitional justice is a requirement for sustainable peace after periods of gross human rights violations and violent conflict, efforts should be made to put transitional justice mechanisms in place to punish perpetrators of human rights violations and provide redress for victims.

Within the study and practice of transitional justice, the roles played by the arts in addressing past human rights violations have become increasingly well accepted. This article examines the role of the arts in Cambodia’s transitional justice process, from the initial coupling of attempts to revive the arts with the pursuit of human rights in the early 1980s to the reparations orders provided by the Extraordinary Chambers in the Courts of Cambodia (ECCC). It identifies five main contributions the arts may make to transitional justice processes—evidence, complementary justice, outreach, activism, and critique—and demonstrates not only that various art forms have assumed each of these roles in Cambodia but also that this case extends the place of the arts in transitional justice. In particular, by highlighting the role played by local activists in seeking to revive the arts in the aftermath of the Khmer Rouge period, this article reveals the significance of arts initiatives, instigated in the absence of a formal justice process, for formal processes once they eventually emerge. In doing so, it argues that without the arts initiatives and activism that preceded it, the formal inclusion of the arts in the ECCC process would not have been possible.

IntroductionIn previous works I have argued extensively that the notion of an African phi- losophy of education in the form of Ubuntu (human interdependence and humaneness) is capable of counteracting inhumane acts, such as genocide, torture, murder and the abuse of human beings (Waghid & Smeyers 2012; Waghid 2014). I have argued that Ubuntu is a moral concept that can contribute towards the eradication of human rights violations, which have become so endemic in many parts of African society - whether perpetrated by military rulers in oppressive Egypt after the Arab Spring (people's revolt against unjust state rule in several northern African countries), or the ongoing rape of thousands of women and the maiming of innocent children in the Democratic Republic of Congo by Hutu militia. These acts of human rights violations have not abated, and the very idea of Ubuntu has been questioned by several critics of the concept as being incapable of disrupting gross inhumanity since more and more people are suffering the fate of genocide, torture and abuse. It is with such an understanding of unabated human rights violations in mind that I offer a reconsidered view of Ubuntu - one that can deal more positively with the inhumanity that seems to be increasing on the African continent.Human Rights Violations on the African ContinentHuman rights violations, in the form of mass slaughter on religious grounds in the Central African Republic, ethnic targeting and civil war in South Sudan, massive loss of life (genocide) and atrocities in the Democratic Republic of the Congo, and political repression in Egypt by the militarydominated authorities, are poignant examples that all is not well on the African continent. Drawing on the 2014 Human Rights Watch World Report: Africa, the following gross human rights violations are reported in several countries: arbitrary detentions of political dissenters (Angola), ill-treatment and arbitrary arrests of religious worshippers (Burundi), raping of women and girls and destruction of villages by oppositional Seleka forces (Central African Republic), sexual violence against children (Cote d'Ivoire), war crimes against civilians by rebel forces (Democratic Republic of Congo), torture, prolonged detentions and unfair trials against political opposition (Equatorial Guinea), indefinite conscription and forced labour (Eritrea), massacre of civilians (Guinea), extra-judicial killings (Kenya), recruitment of children and child labour (Mali), Boko Haram violence against civilians with the intent to enforce a harsh form of Shari'ah law (Nigeria), genocide (Rwanda), al-Shabaab suicide bombings (Somalia), xenophobic attacks (South Africa), anti-insurgency abuses and ethnic conflict (South Sudan), illegal arrests and detentions (Uganda), and intimidation by security forces (Zimbabwe) (Human Rights World Report: Africa 2014:73-198).All the mentioned atrocities against humanity persist, despite African communities' apparent awareness that Ubuntu should be actualised in their lived experiences, particularly in relations between individuals and others. Ubuntu (human interdependence and humaneness) has been constitutive of African communal practices (and nowadays popularised through the media) for a very long time, to the extent that the practice has been linked to forms of communitarianism that should be actualised, such as having respect for elders, treating the destitute and helpless with care, and cultivating sharing and trust amongst Africa's peoples (Waghid 2014:58-62). One cannot deny the need for Ubuntu to manifest itself in the practices of people, considering the escalating levels of human indignity that have become endemic in certain parts of African society. There are those critics of Ubuntu who use the inhumanity that prevails in certain parts of the continent as reason to take issue with the practice, and even to question whether Africa has the moral commitment to remedy its own continuing societal demise (Horsthemke, 2004). …

A recent United Nations report on North Korea reports of widespread human rights violations inside North Korea.1 The right to life, liberty, freedom of religion, freedom of association, and assembly are regularly violated by the government and its agents.2 Over the years, many people have been subjected to detention, torture, and forced labor in government-operated detention camps in North Korea. Oppressive rule is always associated with gross violations of human rights. One of the challenges that a unified democratic Korea would have to face is how to deal with human rights violations perpetrated in the past. In transitional justice literature relating to societies transitioning from oppressive and authoritarian rule or conflict to democratic governance, one of the major points of discussion is always what to do with perpetrators of past human rights violations when conflicts or oppressive regimes have ended. The United Nations has a long history of assisting societies devastated by conflict or emerging from repressive rule to reestablish the rule of law and develop mechanisms to deal with large-scale human rights violations. For the United Nations, transitional justice is the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale human rights abuses, in order to ensure accountability for the abuses, serve justice, and achieve reconciliation and the transformation of society to establish a democratic society that is underpinned by human rights values.3

For the past two decades, transitional justice has been a worldwide political agenda. The issue of how to deal with the past human rights violations is an important task to reconstitute democratic normality and reconciliatory relationships. Current researchers and human rights activists generally take two kinds of perspectives or approaches: one is the moral philosophy of universal human rights and law; and the other is transitology on types of regime change and balance of power elites Perspective of moral philosophy and law requests to take the political and legal responsibility of perpetrators, compensation for the victims and to emphasis on human rights and the reconstruction of democracy and the rule of law. About guilt and responsibility, they prefer to prosecute perpetrators of human rights violations. Transitology suggests the balance of political power matters most for transitional justice decision. They concern about the reality of political bargaining between old and new political elites. Most political scientists consider the character of the third wave democracy, and take practical use of amnesty and pardon. In other words, forget is the cost of social reconciliation. This article considers that they both neglect the role of the civil society, symbolic meanings, emotions, collective choices, and the effects of the passage of time. I theorize the framework of politics of memory and bring up the framing effect of public discourse and political memory. The interaction of discourse-memory and institutional decision contributes to realize the consciousness of guilt and accountability. Finally, Spain's case proves that politics of memory is a promising and useful perspective to observe transitional justice policy selection and change.

Since the 1980s, states have been increasingly addressing past human rights violations using multiple transitional justice mechanisms including domestic and international human rights trials. In the mid-1980s, scholars of transitions to democracy generally concluded that trials for past human rights violations were politically untenable and likely to undermine new democracies. More recently, some international relations experts have echoed the pessimistic claims of the early `trial skeptics' and added new concerns about the impact of trials. Yet, relatively little multicountry empirical work has been done to test such claims, in part because no database on trials was available. The authors have created a new dataset of two main transitional justice mechanisms: truth commissions and trials for past human rights violations. With the new data, they document the emergence and dramatic growth of the use of truth commissions and domestic, foreign, and international human rights trials in the world. The authors then explore the impact that human rights trials have on human rights, conflict, democracy, and rule of law in Latin America. Their analysis suggests that the pessimistic claims of skeptics that human rights trials threaten democracy, increase human rights violations, and exacerbate conflict are not supported by empirical evidence from Latin America.

ABSTRACTThis article critically examines how multifarious levels of division among victim constituencies have shaped legal and non-legal transitional justice responses to human rights violations. It submits that this division has caused such responses to operate in accordance with the notion of being a ‘victim of’ rather than that of simply being a victim of human rights abuse per se. Expanding from this position, it proffers the theoretical viewpoint that transitional justice responses are premised on the nuanced typologies of being a victim of a particular perpetrator or being a victim of a particular harm or being a victim of particular circumstances. When determining which victims to offer redress to, which victimisers to punish and which harms to repair, these approaches have by necessity fallen back on hierarchies that favour certain victims and harms above others. This process of hierarchisation is multi-layered and involves interplay between ideological, gendered and class-based factors that place certain victims outside the reach of transitional justice discourses and processes. The exclusion of these victims, the article argues, creates an invisibilised category of victims of the peace that fail to benefit from transitional justice processes that struggle to deal with the complexity their situations present.