Traditional Justice and Reconciliation after Conflicts in Africa 4-5

Luc Huyse

3.2. Two salient features
In 2002 Penal Reform International (PRI), an NGO, published a report on the role informal justice systems play in Sub-Saharan Africa—but without the focus on a post conflict context. It contains a long list of ideal-typical attributes of such systems (see box 1). This list is highly instructive. The first two items refer to reconciliation and accountability and, via the term ‘restorative’, to elements of truth seeking and reparation— the instrumental objectives which were discussed in section 3.1.2. Next are six traits that give a concrete expression of their ritualistic-communal character, an aspect that marks a crucial difference with rational-legalistic instruments such as criminal courts. The remaining points on the list express yet another dominant attribute, namely that most processes are initiated and run by civil society actors—in distinct contrast with state based models of conflict resolution.

Box 1: The ideal-typical attributes of informal justice systems in Sub-Saharan Africa
1. The focus is on reconciliation and restoring social harmony.
2. There is an emphasis on restorative penalties.
3. The problem is viewed as that of the whole community or group.
4. The enforcement of decisions is secured through social pressure.
5. There is no professional legal representation.
6. Decisions are confirmed through rituals aimed at reintegration.
7. The rules of evidence and procedure are flexible.
8. The process is voluntary and decisions are based on agreement.
9. Traditional arbitrators are appointed from within the community on the basis of status or lineage.
10. There is a high degree of public participation.
Source: Penal Reform International (PRI), Access to Justice in Sub-Saharan Africa: The Role of Traditional and Informal Justice Systems (London: PRI, 2002), p. 112, by kind permission.

3.2.1. Ritualistic-communal procedures
Western justice systems claim to encompass the principles of accountability, reparation and, albeit to a lesser degree, truth and the restoration of broken relationships. Modern and indigenous dispute resolution institutions thus pursue the same objectives. However, they differ, mainly with regard to the procedures they develop to reach these goals. The specificity of the mato oput ceremonies in northern Uganda and of the efforts to reintegrate former child soldiers in Sierra Leone is the use of ritualistic ingredients—stepping on an egg, washing away the evil past with holy water or oil, drinking the juice of a plant or a tree, evoking ancestors, provoking trance. Spirits dominate the scenario in Mozambique. As Victor Igreja and Beatrice Dias-Lambranca write, People in Gorongosa, as in many other parts of Africa, live in a social world that traditionally practises the belief that the death of individuals through traumatic acts, or the breaking of taboos such as the killing of human beings without metaphysical and/or social legitimization, is an offence that requires immediate redress through atonement rituals. If wrongdoing is not acknowledged, the spirit of the innocent victim will return to the realm of the living to fight for justice.

Ritual elements are not completely absent in modern courts. Look at the solemn language, the robes and wigs of judges and advocates. But the dominant tone there is rational. Another critical difference lies in the absence of legalistic tools in almost all traditional justice practices. There is no professional representation and the rules of evidence and procedure are flexible. In addition, the logic of criminal law is different. It has to generate ‘yes or no’ decisions. The outcome of a trial must be ‘guilty’ or ‘not guilty’. To arrive at such clear verdicts, criminal courts must have strict rules. They also limit the amount of information that is processed. However, during violent conflict the behaviour of perpetrators often falls into a grey area in which different forms of guilt and innocence are mixed. Child soldiers, forcibly abducted from their families and compelled to commit horrendous crimes in the course of the conflicts in Sierra Leone, Uganda and elsewhere, are a clear case in point. Courtrooms are not usually capable of the subtlety needed to deal with such complexities. A combination of palavers, the African way of prolonging discussions, and ritual events creates in principle more opportunities for exploring issues of accountability, innocence and guilt that are integral to the legacy of violent conflict. The actual Gacaca institution, however, is more ambiguous. Bert Ingelaere, the author of the case study in this book, notes: ‘it is the repeated act of coming together in the Gacaca sessions, irrespective of what is done there in the sense of content, that seems to have a transformative influence on social relations with those encountered in those meetings. But the substance of the encounters is handled according to the purely prosecutorial logic which limits the discursive aspects normally connected with ritual doings or the dialogical and healing dimension of truth-telling processes’.

Even more important, perhaps, is the communal dimension. Guilt and punishment, victimhood and reparation are viewed as collective in most African societies. A community will be incited to accept responsibility for the deeds of a perpetrator or to engage in the healing of a victim. Modern justice systems are designed to identify individual responsibility. Moreover, trials only recognize criminal guilt, not political or moral responsibility.

3.2.2. Civil society as the main stakeholder
Sizeable components of transitional justice policies are initiated and organized by state authorities. Criminal prosecutions are the prototype. Even truth commissions often operate in the shadow of the state. The case studies in this book show that the centre of gravity is different in the case of almost all indigenous practices. Civil society in its various forms (traditional, cultural and religious leaders; elders; local NGOs and the media) normally sets the rules, appoints the key personnel (mediators, arbitrators, lay judges) and watches over the implementation of the decisions that are taken. In addition, there is in principle a high degree of public participation. Gacaca sessions at the level of the Rwandan hills are intended to attract large parts of the population (presence there is compulsory). Such broad sharing of experiences also typifies the other cases. Criminal courts, on the other hand, are much more distanced from those who were involved as victims or as offenders. This has led to complaints, particularly with regard to the ad hoc tribunals in The Hague (for the former Yugoslavia) and Arusha (for Rwanda), and to the permanent International Criminal Court. The perception of the distance of internationally instigated tribunals from the victim populations and the lack of direct access to these courts is sometimes framed in terms of questioning the basic legitimacy of such ‘international’ institutions for dealing with ‘local’ war crimes.

3.3. An impressive diversity
Up to this point in the comparative analysis the accent has been on the many similarities between the traditional mechanisms in the five countries. There is, however, considerable variation in content and form.

All indigenous justice and reconciliation practices are, strictly speaking, no longer traditional. But some are newer than others. The gamba spirit ceremony is an instance of a newly invented mechanism, based on existing ingredients. It was needed to fill the vacuum created by the culture of denial in Mozambique. War survivors in the Gorongosa area managed to develop their own socio-cultural mechanisms to attain justice and reconciliation in the aftermath of the civil war. The Juba agreement between the Ugandan Government and the rebel LRA stipulates that local justice instruments shall be promoted, ‘with necessary modifications’ (emphasis added). This will change mato oput and other existing practices in northern Uganda. But the most radical transformation has hit the Rwandan Gacaca. Lars Waldorf writes: ‘In fact, gacaca has always been an uneasy mix of restorative and retributive justice: confessions and accusations, plea-bargains and trials, forgiveness and punishment, community service and incarceration’. But its modernization by the actual regime has made it ‘increasingly retributive, both in design and in practice’ (Waldorf 2005: 422). Legislation has introduced legalistic procedures, state control and forced participation for the population. The Gacaca court of today is unquestionably an outsider in the context of this project.

Practices also differ in the way the objectives of reconciliation, accountability, truth seeking and reparation are ranked. Reintegration and cleansing rituals in Sierra Leone (as in Liberia) fully prioritize bringing together returning rebels, their families and their victims. In the gamba spirit case the emphasis is on truth telling, although the other goals are not absent. Accountability is the main intention in the Gacaca proceedings. The Ubushingantahe in Burundi involves a more or less balanced mixture of the four components.

Finally, substantial variety is caused by the broader context in which traditional mechanisms have to function. The Mozambican amnesty law creates an environment that is completely different from that in Sierra Leone, with the presence of a special court and a TRC. The next section explores this source of diversity.

3.4. Tradition-based mechanisms: from aversion to full integration
Publications on transitional justice have often tended to study amnesty legislation, trials, truth commissions and other strategies as if they operated in a societal vacuum. But, as a recent report notes, ‘Strategic interventions or planned change in one part of a system affect all parts in reverberating pathways’ (Baines, Stover and Wierda 2006: 3). Preference should indeed be given to a more comprehensive approach.

3.4.1. The need for a comprehensive approach
All regimes coming out of a devastating conflict are confronted with a formidable transition agenda. This raises intricate problems of prioritizing and sequencing. When to address a legacy of mass violence if basic needs in the areas of physical security, housing and so on remain unanswered? Or if the conflict has not ended yet, as in northern Uganda, will it be peace first or justice instead?

Given the volatility of an immediate post-conflict context, timing and sequencing in particular represent an extremely important but difficult dimension. Policies must not come too soon or too late. Questions and challenges abound. When to develop justice and reconciliation activities? Decisions will inevitably impact seriously on the final outcome. To get the time as right as possible, policy makers must ‘understand the times’, that is, make an adequate reading of the forces that influence the transition agenda; be conscious of the importance of measures for the long term; and be aware that the mere passage of time will not ultimately heal all individual and collective wounds. Then, once the decision to tackle the crimes of the past is taken, what is the proper timing? Any policy needs a ‘flight plan’ to control the right sequencing of the steps and dimensions of the process. What should come first—healing initiatives, locking up leading offenders, starting cleansing and reintegration rituals, or saving vital documents for the future search for truth? Wrong sequencing may have undesirable effects. The threat of trials may incite suspects to destroy evidence. To give priority to truth telling may frustrate victims who are in urgent need of healing. Finally, what is the appropriate pace? Experience suggests that a rushed approach, as regularly advocated by national and international peacemakers and facilitators, will almost certainly be counterproductive. In the immediate aftermath of a civil war or of an inhuman regime, victims are too preoccupied with their own distress to develop firm views on how to reach justice and reconciliation.

The particular conjunction of political and cultural forces in and around the post-conflict country weighs heavily on prioritizing and time management.

Politics
A political system has a variety of relevant actors. Official authorities are crucial. The many groups and organizations that populate civil society form another important category. Both operate on the national, the local and the international level.

State authorities
The case study on Burundi clearly shows that the bashingantahe institution has not yet been accepted as a vital component of dealing with the legacy of an almost continuous and brutal conflict. There is no reference to that effect in the 2000 Arusha Peace and Reconciliation Agreement, it has no place in the law on the proposed national truth and reconciliation commission (commission nationale vérité réconciliation) and it is absent in the current negotiations between the government and the UN regarding the mandate and composition of the Burundian commission. This is partly due to an aversion that exists in the Bahutu-controlled government, where the bashingantahe are viewed as still in the hands of the Batutsi. Opposition also exists at the local level. Traditional leaders clash with those who received their authority through elections. The former mostly have to yield. The international community, in its role as a facilitator in the peace negotiations, has apparently not felt the need to counter these sources of resistance.

How to understand this outcome? Justice after transition is part of a broader objective a new regime has to pursue, namely to consolidate its authority and legitimacy, internally and vis-à-vis the outside world. This is a question of nation and state building. New or renewed control over the justice sector is a vital factor in these processes. In countries like Rwanda political leaders have formalized informal justice mechanisms, bringing them under closer scrutiny. Non-state actors and traditional authority structures (elders, lay judges and so on) are also important targets of ‘state capture’. The politicization of the traditional leadership is often one of the consequences, resulting in problems of weakened credibility, inefficiency and corruption. This, in its turn, may considerably reduce the potential of the traditional institutions of conflict regulation, since they rest on these local leaders. In some instances the legitimacy of these tools has been compromised by the role that traditional leaders played (albeit often under duress) during the conflict.

Source: IDEA