Traditional Justice and Reconciliation after Conflicts in Africa 1-5
Introduction: tradition-based approaches in peacemaking, transitional justice and reconciliation policies
Luc Huyse
‘Traditional justice mechanisms, such as Culo Kwor, Mato Oput, Kayo Cuk, Ailuc and Tonu ci Koka and others as practiced in the communities affected by the conflict, shall be promoted, with necessary modifications, as a central part of the framework for accountability and reconciliation.’ This paragraph is article 3.1 of a preliminary pact on accountability and reconciliation, signed in late June 2007 by the government of Uganda and the rebel Lord’s Resistance Army (LRA). It could be a major step towards success in the Juba peace talks that must bring an end to the long and cruel civil war in the northern part of Uganda. The explicit reference to traditional justice instruments in the context of peacemaking and justice is innovative. It is one of the strongest signs of the rapidly increasing interest in the role such mechanisms can play in times of transition.
Almost ten years earlier, Rwandans, battling the heavy legacy of the genocide, began scouting the possibility of mobilizing an informal dispute resolution tool, called Gacaca, for their transitional justice policy. Since then, thousands of such lay tribunals have been set up. They have identified and tried numerous men and women who were suspected of participating in the events of April–June 1994. The Gacaca justice and reconciliation activities have attracted worldwide attention. Academics have written countless articles and books. International non-governmental organizations (NGOs) and donor countries have provided generous funding. Examples of the ritual reintegration of ex-combatants in Mozambique and Sierra Leone were given a similar welcome. A hype was born.
The first part of this chapter examines the rise of traditional techniques in peacemaking, transitional justice and reconciliation policies. It then sets out the difficulties of terminology and methodology in investigating the actual performance of tradition-based instruments. The third part presents a comparative analysis of such practices in the five African countries that are the subject of the case studies in this book.
1. Traditional mechanisms in a broader context
When a civil war, genocide or a brutal dictatorship ends the inevitable question arises of how to deal with those who have committed grave human rights abuses. From the end of the 1940s to the mid-1980s, the answer was to look away from such painful legacies.
This policy sometimes took on the appearance of a self-imposed silence, as was the case in post-Khmer Rouge Cambodia. Elsewhere, as in Spain after the demise of the Franco regime, amnesia was the outcome of a negotiated compromise between the successor elites, or impunity was established through formal amnesty legislation: Pinochet’s Chile at the end of the 1970s is a striking example. The dominant strategy was to (try to) ‘close the books’. This response is quite surprising. In the immediate post-World War II context the emphasis had been on accountability. A legal foundation was laid for the fight against impunity in the form of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide and the four Geneva conventions of 1949. The tribunals at Nuremberg and Tokyo tried the leaders of the wartime German and Japanese governments. But this trend towards greater accountability for grave human rights crimes was not continued in the decades that followed. Silence, amnesia and amnesty were the rule, with the trials of the junta leaders in Greece (in 1974) being a notable exception.
A major policy shift, both morally and politically grounded, occurred from the mid1980s onwards. The global growth of a human rights culture blossomed into a new, now much wider, fight against impunity. International agencies such as the United Nations (UN) and the Inter-American Human Rights Court as well as large human rights NGOs cooperated to develop both the norm and the practice of a duty to prosecute crimes against humanity, genocide and war crimes. This in turn resulted in the establishment of the ad hoc tribunals of The Hague (for the former Yugoslavia) and Arusha (for Rwanda) and of the International Criminal Court (ICC), and in the gradual spread of the principle of universal jurisdiction. Moreover, the choice of retributive justice as a strategy has even been written into internationally brokered peace agreements, as in Guatemala, Sierra Leone and Burundi.
Concurrently, however, questions were asked about the applicability of systematic prosecutions in contexts where regime change is an extremely delicate and/or complex operation. Local political and civil society leaders pointed to the many political, social, economic and cultural contingencies that may make it impossible for their societies to fulfil the duty to prosecute. Doubts about the use of trials led to a search for alternative and/or complementary mechanisms to avoid the dangers of too much and of too little criminal justice. The South African Truth and Reconciliation Commission (TRC), with its principle of ‘amnesty for truth’, was a turning point. Moreover, the conviction arose that in most circumstances one tool alone would not suffice. A combination of measures and instruments was called for—limited amnesty or temporary immunity, vetting or lustration, a truth commission, and a few (token) trials. Such a mixture had and has to be innovative because of the uniqueness of each society that emerges from a violent conflict. What we are thus witnessing is the domestic appropriation of previously existing models of dealing with a painful past, with the aim of taking into account the numerous risks that trouble transitional societies. The overall result is the move from a de facto dichotomy (impunity or trials) to multiple conceptions of justice and reconciliation— state and non-state instruments; legal, semi-judicial and non-judicial techniques.
As part of this important development some post-conflict societies have now turned their attention to their legacy of indigenous practices of dispute settlement and reconciliation. The argument is that traditional and informal justice systems may be adopted or adapted to develop an appropriate response to a history of civil war and oppression. Kofi Annan, the then UN secretary-general, officially acknowledged this evolution in his August 2004 report on The Rule of Law and Transitional Justice in Conflict and PostConflict Societies: ‘due regard must be given to indigenous and informal traditions for administering justice or settling disputes, to help them to continue their often vital role and to do so in conformity with both international standards and local tradition’ (United Nations 2004: 12). This is the societal, political and academic context in which this report must be located.
Source: IDEA
