Traditional Justice and Reconciliation after Conflicts in Africa 2-5
Luc Huyse
1.1. An ongoing debate
In the ongoing public debate on transitional justice, political leaders, members of civil society and academics are divided on numerous points. By far the most divisive question is how to balance the demands of justice against the many political constraints.
Those who emphasize the beneficial effects of prosecution bring forward two categories of arguments. One is victim-oriented: a post-conflict society has a moral obligation to prosecute and punish the perpetrators, because retribution is exactly what most victims want. It serves to heal their wounds and to restore their self-confidence because it publicly acknowledges who was right and who was wrong and, hence, clears the victims of any labels of ‘criminal’ that were placed on them by the authorities of the past or, indeed, by rebel groups or the new elites. Only trials, the argument runs, lead to a full recognition of the worth and dignity of those victimized by past abuses.
A second set of arguments has to do with establishing and upholding peace and political stability. Prosecutions will avoid unbridled private revenge, it is said. Otherwise, victims may be tempted to take justice into their own hands. The risks then are vigilante justice, summary executions and spirals of revenge. In addition, such ‘self-help justice’ can trigger social and political disturbance. Trials also protect against the return of those who were the cause of the miseries of war and repression. The survival of a newly established regime depends on swift and firm judicial action against those who are responsible for the gravest violations of human rights. This is seen as a necessary protection against sabotage ‘from within’ and as a way of achieving some minimal physical security.
In addition, criminal courts establish individual accountability. This is essential to the eradication of the dangerous perception that a whole community (e.g., ‘the Hutu’, ‘the Tutsi’) is responsible for violence and atrocities. This idea of collective guilt is often the source of negative stereotypes, which in turn may provoke more violence. Also, prosecutions are seen as the most potent deterrent against future abuses of human rights and the most effective insurance against sustained violence and atrocities. They can successfully break the vicious circle of impunity that causes injustice in many parts of the world. Finally, criminal action against perpetrators of war crimes, genocide and crimes against humanity is a duty under international law.
On the other hand, some question whether outright punishment is the appropriate response in any and every context. The end of a civil war or of a period of violent repression creates an intricate agenda—rebuilding the political machinery and the civil service, guaranteeing a minimum of physical security, disarming rebel movements, reorganizing the army, rebuilding infrastructure, reconstructing the economy, stabilizing the currency, establishing a non-partisan judiciary, organizing elections, healing the victims, repairing the damage inflicted on them and so on. Dealing with the perpetrators, possibly by means of criminal prosecution, is only one of many challenges. More often than not it will be impossible to tackle all tasks simultaneously. Choices have to be made.
It is argued that the place of justice in general, and of trials in particular, on the postconflict agenda depends on the particular conjunction of political, cultural and historical forces. Other problems and needs may be more important and/or more urgent than seeking justice through trials. In addition, prosecutions are ambivalent in certain transitional contexts. They can have highly destabilizing effects on a peace settlement or a fragile shift to democracy. In fact, precisely to avoid such an outcome, Latin American policy makers throughout the 1980s deliberately opted against trials.
Moreover, prosecutions have some intrinsic limitations. They are perpetrator-oriented and do not give victims the full attention they are entitled to in order to be healed of the injustices they suffered. Trials identify individual guilt, not patterns of atrocities. Moreover, they may contradict the legal culture of a post-conflict society. Desmond Tutu, chair of the South African Truth and Reconciliation Commission, argues that Western-style justice does not fit with traditional African jurisprudence. It is too impersonal. The African view of justice is aimed at ‘the healing of breaches, the redressing of imbalances, the restoration of broken relationships. This kind of justice seeks to rehabilitate both the victim and the perpetrator, who should be given the opportunity to be reintegrated into the community he or she has injured by his or her offence’ (Tutu 1999: 51). Finally, there may be a whole range of practical shortcomings and risks. Evidence may have been destroyed. In many cases the criminal law system will be in shock, seriously crippled or perceived as an integral part of the old order. Lack of proof can lead to the acquittal of well-known perpetrators. Such justice, perceived as arbitrary, will seriously damage victims’ trust in the whole system.
1.2. The rise of a cross-cultural perspective
At first sight the debate is a clash between two opposing models. On the one side, full priority is given to prosecution. The tribunal is the gold standard. The international community, through its permanent ICC or via the principle of universal jurisdiction, must act if local authorities willingly or from sheer necessity abstain from retributive action. In all cases, professional judges play the principal part. More attention goes to the suspect than to the victim. The duty to prosecute is a stronger argument than the many contingencies the local context creates. International institutions such as the UN and large NGOs such as Human Rights Watch and Amnesty International deliver the growing-power for this model. At the opposite extreme is the choice of a strategy that tries to avoid the tribunal as much as possible. The centre of gravity moves from the courtroom to the hearing, from the judge to the local civil society leader, from a fixation on individual guilt to the search for societal patterns in atrocities, from legal retaliation to ritual reconciliation, from the internationally driven retributive impulses to the full acknowledgement of the opportunities the local context offers.
Using more analytical language, one can position the two models at the extremes of a continuum. At one end is a strategy that is initiated, organized and controlled by (national or international) state institutions. Its procedures are formal and rational-legalistic. The criminal court is the prototype. At the other end of the continuum are policies that are community-initiated and community-organized. They are predominantly informal and ritualistic-communal. The north Ugandan rite of stepping on the egg, exercised to reintegrate former child soldiers, is a striking demonstration of this type of approach.
There are, good reasons to correct the picture of two ‘pure’ strategies that differ on all points and are mutually exclusive. First, in real-world situations many transitional justice policies will combine, albeit to different degrees, ingredients of both extremes. The Gacaca, for example, has been highly formalized and can impose prison sentences, yet operates with lay judges. Second, the original approach of reasoning in absolute terms (to prosecute or to forgive and forget) has gradually been abandoned. An explanation for this development should run along a variety of lines. One is the relative success of the South African TRC, a creative mix of formal and informal procedures and of international norms and domestically designed techniques. There is also the growing awareness that broadening the scope of local variation is totally justified. That is exactly what Diane Orentlicher, a professor of international law and the United Nations’ independent expert on combating impunity, meant when she recently wrote: ‘Given the extraordinary range of national experiences and cultures, how could anyone imagine there to be a universally relevant formula for transitional justice?’ (Orentlicher 2007: 18). In addition, planning post-conflict justice and reconciliation has become an intrinsic and unavoidable part of any peace negotiation process. There is therefore a real and major risk that a peace agreement that mandates prosecutions will kill the prospects for peace. The case of northern Uganda is a convincing demonstration of the difficult dilemmas local people and international facilitators then have to tackle.
1.3. Traditional justice and reconciliation systems: from a normative approach to a more realistic view
The shift in transitional justice paradigms has opened up ample space to discuss the role of traditional mechanisms. At first, the strengths of the formula (home-grown, locally owned, culturally embedded and so on) received overexposure. Awareness of the many weaknesses was not lacking, but they were too often kept in the shade. The outcome was a great deal of myth making, of discussing ‘invented traditions’. The resulting knowledge gap produced decision making that was based on weak data, ex ante evaluation and speculation.
The mood changed as soon as the results of empirical studies started to circulate. This was most visible with regard to the Gacaca initiative. The programme ran into a multitude of operational problems. In addition, two dubious effects have been observed of what had been labelled a very promising model. The Gacaca courts were expected to drastically reduce the number of people in prison (c. 120,000) and to deal with the backlog of genocide cases. However, as is discussed in the chapter on Rwanda, questionable instrumentalization of the lay tribunals resulted in more than 800,000 men and women being put on the list of suspects. A second unwanted effect is that mutual trust between the two ethnic communities—the Bahutu and the Batutsi—has tended to decrease.
However, the most important shift in perception and evaluation is the insight—now commonly accepted—that traditional techniques, in Rwanda and in other African post conflict countries, have been greatly altered in form and substance by the impact of colonization, modernization and civil war. Normative approaches are thus gradually giving way to more realistic, empirically based assessments of the potential role of traditional mechanisms within the broader reconciliation and transitional justice policy framework.
The ambition of this book is to develop insights, based on case studies by local authors, which will both enlighten the debate and heighten awareness among all involved stakeholders, local and international, of the range of policy instruments and contextual resources available to them in the pursuit of sustainable peace in post-conflict societies. The next step now is to tackle the intricate problems that arise in the search for an acceptable terminology and methodology.
2. Investigating tradition-based practices: problems of terminology and methodology
‘The term “traditional” with its Eurocentric connotations tends to suggest the existence of profoundly internalized normative structures.’ It also refers to patterns that are seemingly embedded in static political, economic and social circumstances. But ‘it must be borne in mind that African institutions, whether political, economic or social, have never been inert. They respond to changes resulting from several factors and forces’. Both quotations come from Joe Alie’s case study on Sierra Leone (in chapter 5). They point convincingly to the problems that arise in any study of tradition-based justice and reconciliation instruments. Terminology is problematic. How justified still is the label ‘traditional’ if the mechanism is susceptible to almost continuous change? Are there any satisfactory alternatives? In addition, if the subject of the study is a constantly moving target, where should the focus of the observation be directed? Second, many questions of a methodological nature appear, such as how to avoid ethnocentrism in developing the key notions that will guide the analysis and whether it is at all possible for Western observers to interpret these phenomena in a basically sound way.
These are questions that cannot be avoided. This part of the chapter tackles them, but it cannot be other than an unfinished exercise.
2.1. A tricky terminology
In the section of his chapter on the substance of traditional practices in northern Uganda (chapter 4), James Latigo writes that there is still a need to carry on tracing the processes that led to the development of some of the original practices, to the decay of others and to the appearance of new ones, such as various forms of psychotherapeutic healing.
Colonizing authorities and processes of modernization, civil war or genocide have had deeply disturbing effects on the original institutions so, strictly speaking, they are no longer traditional. The problem is that alternative terms also tend to provoke embarrassing questions. ‘Customary’ is too close to ‘traditional’. Some prefer ‘informal’, so as to make the contrast with the formal and formalistic character of state justice institutions, but some of our case studies show that the mechanisms in question acquire formal attributes once they are more or less part of a transitional justice policy. This is firmly demonstrated in the case of the Rwandan Gacaca, as chapter 2 argues. A similar problem arises when ‘non-state’ is used as the adjective. Mobilization of these techniques in the context of a broader transitional justice policy tends to bring them into the sphere of influence of state authorities and institutions. No satisfactory generic term thus seems to exist.
This discussion is more than a purely terminological excursion. It puts a finger on a crucial aspect of traditional instruments today: they are hybrids and move back and forth between their origin and capture by the state.
This book retains the word ‘traditional’ as the key label, for want of a more accurate alternative. But we explicitly acknowledge the dynamic processes that drive the form and content of our subject. Each case study describes the life cycle of tradition-based justice and reconciliation techniques, thus confronting their actual format with prior states of affairs. The analysis in terms of strengths and weaknesses, however, focuses on the present characteristics and performance.
2.2. Methodological pitfalls and choices
Ethnocentrism is like nature: chase it away through the front door and it comes back through a window. It is a major source of misconceptions in viewing the practices of the outside world. This is a specific risk in any study of or report on tradition as a sociopolitical phenomenon in African societies. A strong tendency to romanticize persists, particularly in European and North American academic and NGO communities. What is more, some of the cultural barriers that block the line of sight are extremely high, as are language barriers. In his book Trial Justice: The International Criminal Court and the Lord’s Resistance Army, Tim Allen, an expert on northern Uganda, shows how confusing some critical notions in the local idiom may be for external observers: ‘in the Lwo language, “amnesty” and “forgiveness” are not distinct—the same word (timo-kica) is used for both. The Christian organizations and the “traditional” leaders were especially prone to confuse the two ideas, even arguing that there is an Acholi system of justice based on forgiveness which is superior to mere conventional law-making and enforcement. Rather naively, many NGOs have taken this at face value’ (Allen 2006: 76–7).
To avoid these and other pitfalls, International IDEA has chosen to engage local authors for this project. The only exception is the chapter on the Rwandan Gacaca. Its author is a Belgian scholar who has spent lengthy periods of field research in the rural areas of that Great Lakes country. (The Rwandan experts who were originally involved in the project pulled out.) The other case studies have been written by Africans with an intimate knowledge of their own societies. The outcome, as their contributions demonstrate, is a set of well-informed and highly relevant country studies. These authors are in various degrees themselves actors in their society, not far-away observers who read and write from the comfort of a university or an NGO or a newspaper. A few have even been insiders to the conflict in focus. This results in firm, even provocative, opinions on the causes of the war that ravaged their country. They also have outspoken views on the role of traditional justice and reconciliation mechanisms. Some readers may find that, as a consequence, balance and neutrality have suffered. Our approach, however, has the advantage of injecting clarity into the debate on transitional justice policy choices. To further stimulate the dialogue, International IDEA will open its Reconciliation Resource Network website (http://www.idea.int/rrn) for discussions related to this book.
A case study depends to a great extent on the analytical frameworks that guide research and observation, especially if the ambition is to make the output as comparative as possible. To this end the team (the lead researcher, the other authors and the project leader) worked with a common checklist of issues and topics that was meant to cover the subject matter of the project. A draft of the list was presented and revised extensively at a meeting with the authors in Pretoria on 25–26 September 2006. It was agreed, however, that the list was not intended to be an operational straitjacket, since that would lead to so-called observation blindness. Society constantly shapes new forms and expressions of existing patterns. Only research instruments that are fully flexible will register novel appearances of, for instance, informal justice mechanisms. Victor Igreja and Beatrice Dias-Lambranca deliver a convincing example in their case study. Victims and offenders in Gorongosa, Mozambique, have used old models of healing and reconciliation to develop new rituals that are better suited to the actual post-conflict circumstances.
Two factors explain the choice of the five countries that are part of the project. They are sufficiently similar for comparison to be possible. All have a legacy of extremely violent conflict. At the same time, they represent a wide diversity in terms of the type and status of the domestic conflict (ongoing in northern Uganda, close to peace in Burundi, ended in the three other countries in focus), kind of transition, and degree of involvement of indigenous instruments in the transitional justice programmes of the country (formally integrated in Rwanda, officially linked to a truth commission, as in Sierra Leone, planned incorporation in Uganda, no explicit inclusion in Burundi and Mozambique). The choice of cases was also based in part on consultations with staff of the Belgian Ministry of Foreign Affairs, the project’s funders.
Source: IDEA
