Traditional Justice and Reconciliation after Conflicts in Africa 3-5

Luc Huyse

3. Five African experiences
Traditional justice in general, particularly as it functioned in pre-colonial and colonial times, has been the subject of an abundant literature. The approach was and is anthropological or has its focus on the phenomenon of legal pluralism, that is, the coexistence of state and non-state forms of adjudication. Reconciliation rituals have also received a great deal of attention. The specificity of the International IDEA project, however, lies in its analysis of the role such mechanisms play or might play in dealing with the legacies of widespread human rights abuses.

3.1. The ambitions of justice after transition
Mention is made above of the complexity of the political agenda once a civil war or a repressive regime has ended. Dealing with the fate of victims and per-petrators is one of the huge tasks the successor elite and civil society have to tackle. They may enact amnesty legislation, prosecute offenders, establish a truth commission, seek reconciliation through local rituals, build memorials or develop a combination of these measures. Academics and practitioners have coined the term ‘transitional justice’ to cover the various policies for challenging a grisly past. This section examines the extent to which traditional techniques of dispute resolution fall within the range of that key notion.
To enable such an exercise, we first need a brief description of the goals of justice after transition.

3.1.1. General goals
The study of how post-conflict societies handle a legacy of grave human rights violations is relatively young. As a consequence, views on its core subject still differ. However, gradually a prudent consensus has appeared with regard to the minimum goals of transitional justice policies.

Two general objectives lie at the level of individuals and local communities. Healing the wounds of victims and survivors is the first. The second is aimed at social repair—restoring broken relationships between members of a group and between communities. The second general objective operates at the level of a society or of a nation as a whole. The main aim here is to prevent the recurrence of deadly conflict, not least by strengthening and/or creating institutions and processes tailored to the purpose.

Do these general ambitions feature in the traditional techniques that are the focus of this book? The answer is that they mostly do. Victor Igreja and Beatrice Dias-Lambranca see healing, addressing war-related conflicts and avoiding new aggression as inherentlyy connected to local practices in Mozambique (chapter 3): ‘By making use of available and accessible endogenous resources, war survivors were able to begin the paramount task of repairing their individual and collective lives’; and, elsewhere in this case study, ‘In the social spaces that are thus created, the violence of the past is re-enacted: the grudges, bitterness and discontentment in the hearts of the survivors can be conveyed without the risk of starting fresh cycles of abuse and violence’. According to Joe Alie, in the chapter on Sierra Leone: ‘Societal resources such as indigenous accountability mechanisms are very useful in peace building, especially after a violent conflict. They have the potential to facilitate the reintegration and healing processes, since the community members can easily associate with them’. Writing on the rich body of traditional practices of the Acholi people of northern Uganda (chapter 4), James Latigo shows how they can lead to the remaking of relations of trust, the restoration of social cohesion, and the prevention of gruesome new crimes.

There is a growing conviction in political and academic circles that the general goals (healing the victims, repairing the social fabric and protecting the peace) are best pursued through a search for reconciliation, accountability, truth telling and restitution for the damage that was inflicted. These can be called the four instrumental objectives that all transitional justice policies must ideally have. Our report also sees them as the critical dimensions of tradition-based forms of conflict resolution after civil war and genocide.

3.1.2. Four instrumental objectives
The notions of reconciliation, accountability, truth, and reparation are discussed below will be used here as the main gateways to a comparative review of tradition-based techniques in the countries that are part of the project.

Reconciliation
‘The ultimate goal of traditional justice systems among the Kpaa Mende (and indeed among most African communities) is reconciliation.’ This is one of Joe Alie’s conclusions in the Sierra Leone case study. Local reconciliation activities are very often focused on the return of ex-combatants. Curandeiros, traditional healers, in Mozambique conducted reintegration rituals for ex-soldiers. Another example is the moyo kum (‘cleansing the body’) ritual in northern Uganda. During a meeting of the elders, men and women who have come back from captivity have their guilt washed away and may begin living together in harmony again. Caritas Makeni, an NGO working in Sierra Leone, ‘successfully reunified child ex-combatants with their families. The latter sought to “change the hearts” of their children through a combination of care, support and ritual action. Usually, the eldest member of the family prayed over a cup of water and rubbed it over the child’s body (particularly the head, feet, and chest), asking God and the ancestors to give the child a “cool heart,” a state of reconciliation and stability in which the child is settled in the home, has a proper relationship with family and community’ (Shaw 2002: 6).

The Liberia TRC Act of June 2005 has provisions for the employment of traditional mechanisms of conflict management. In Sierra Leone, too, TRC commissioners were able to ‘seek assistance from traditional and religious leaders to facilitate its public sessions and in resolving local conflicts arising from past violations or abuses or in support of healing and reconciliation’ (Sierra Leone, TRC Act, article 7.2). According to Tim Kelsall, a lecturer in African politics who observed hearings of this commission, it is clear that the addition of a carefully staged reconciliation ceremony to the proceedings was extremely significant. He writes that the ritual ‘created an emotionally charged atmosphere that succeeded in moving many of the participants and spectators, not least the present author, and which arguably opened an avenue for reconciliation and lasting peace’ (Kelsall 2005: 363). The mato oput ceremony in northern Uganda has the reconciling of victims and perpetrators as its central purpose. In Mozambique the magamba spirits create a socio-cultural context that allows individuals and communities to refrain from violence and re-establish broken relationships. In 1993, after a most gruesome period in the ‘undeclared civil war’ in Burundi, members of the Ubushingantahe—a local dispute resolution institution—tried to develop processes of reconciliation. They succeeded in several communities, but failed in the majority of the others. Reconciliation, although mainly seen as a way to national unity, was one of the stated objectives when the Gacaca tribunals in Rwanda became part of a broader transitional justice policy. Their actual experience, however, raises serious doubts about whether the outcome can be called successful.

Accountability
James Latigo writes in chapter 4 that the practice of mato oput ‘is predicated on full acceptance of one’s responsibility for the crime that has been committed or the breaking of a taboo. In its practice, redemption is possible, but only through this voluntary admission of wrongdoing, the acceptance of responsibility’. Similar principles apply in reconciliation rites that are performed in neighbouring regions of Uganda. In Mozambique, as the case study demonstrates, acknowledgement of guilt by the offender is a crucial element in the gamba spirit scenes. The reconciliation ceremonies of the Sierra Leone TRC were oriented explicitly towards the perpetrators accepting their wrongdoing. The bashingantahe in Burundi are not today dealing with the legacy of grave human rights violations, but the accountability component is very prominent in their customary dispute settlement sessions. The Gacaca mechanism in Rwanda originally had a certain tendency to record blame, although the restoration of social harmony was the first goal. The actual Gacaca is strongly oriented towards retribution.

The extent to which these rites require full accountability has become a key element in the discussion on the international lawbased duty to prosecute. The argument is that a tendency to reconcile and even to forgive does not exclude the search for acknowledgement, responsibility and restitution. This is, at the moment, a core element in the debate on the role of the ICC in northern Uganda. It has also been invoked in the June 2007 Juba agreement between the Ugandan Government and the leaders of the Lord’s Resistance Army.

Truth telling
Truth telling is an integral part of local dispute resolution practices in many African countries. This is clearly the case in the Mende society in Sierra Leone, as chapter 5 demonstrates. James Latigo’s description of traditional systems of justice in northern Uganda shows how one of their objectives is to establish a common view of the violent collective history. Lars Waldorf, who ran Human Rights Watch’s field office in Kigali from 2002 to 2004, notes that, when the idea of incorporating the Gacaca into the genocide trials was first discussed, local scholars proposed using the institution instead as a Rwandan version of a truth commission because its original version had the capacities to develop such a role (Waldorf 2006: 49). Truth seeking through ritual public narratives is extremely important in the case of Mozambique. After the civil war ended the political response was to bury the past and impose a curfew of silence. This culture of denial has prevented victims evoking their suffering and restoring their dignity. The gamba spirit ceremonies create opportunities for both victims and perpetrators to engage with the past. In Burundi, members of the Ubushingantahe are expected to develop conditions that are conducive to the establishment of the real facts in a dispute. However, while truth telling may be integral to many traditional mechanisms, the actual form it takes is not necessarily the ‘Western’ public/confessional model of the South African TRC.

Reparation
All the authors of our case studies indicate that traditional mechanisms in their countries require the performance of reparation for the victims. It is not, however, clear whether such reparation has sufficiently materialized in the context of dealing with mass violence.

Magamba healers in Mozambique assert that to deal successfully with the legacy of the civil war offenders must repair the damage they inflicted. In Rwanda, the actual Gacaca legislation provides for two types of reparation. A fund has been set up to compensate individuals, their family or their clan, but it has not become operational. The other form is of a collective nature. It prescribes community labour (travaux d’intérêt général). This measure too has run into problems.

Source: IDEA