In a keynote address during the subregional launch of the United Nations Study on Children Deprived of Liberty, held at the University of Pretoria on December 9, former South African Constitutional Court justice Albie Sachs made a compelling case for the African conception of restorative justice as an important contribution that we, as Africans, can make to the world.
Last year was a watershed year for transitional justice in Africa — and 2020 is the year to make Sachs’s call for Africa’s contribution to the global discourse and practice of justice a reality.
After almost a decade of legislative process, the African Union assembly, the highest decision-making body of the AU, adopted the AU transitional justice policy in February last year. This was after the African Commission on Human and Peoples’ Rights — the AU’s premier human rights body — adopted a landmark study on Transitional Justice and Human and Peoples’ Rights in Africa.
Together, these two normative documents present a conception of transitional justice reflective of the richness of the norms and transitional experiences on the continent. Although these documents draw on useful contributions of existing dominant models and experiences, they also seek to problematise and rectify the major drawbacks of the mainstream discourse and practice of transitional justice. In so doing, they seek to map new frontiers of transitional justice, distilling the lessons from the transitional justice experiences of various African countries and the restorative justice approaches of indigenous justice thoughts and practices.
Although the process was a departure from conventional wisdom, the approach adopted in the AU’s new instruments fits very well into the landmark experience of Colombia’s peace agreement, which Sachs commended in his address. It thus defines the core challenges of transitional justice to be political, sociohistorical and structural, rather than being matters requiring only criminal probing.
A restorative and rehabilitative approach
Certain points illustrate how the two instruments push the frontiers of transitional justice. First, these instruments advance a conception of transitional justice that entails measures that facilitate “fair institutional, social and economic systems of governance and inclusive development”, which goes beyond the actions required to remedy the wrongs committed. Thus, they enjoin societies in transition to balance the use of backward-looking measures emphasising punishment with forward-looking ones that help transform victims and perpetrators into law-abiding citizens. These measures are, in the words of Sachs, more restorative and rehabilitative, rather than principally criminal-based approaches to justice.
Second, the two instruments highlight restorative justice approaches emphasising conciliation, community participation and restitution; healing and restoration of broken social and institutional relationships, as well as bonds of community among individual members of society. Accordingly, going beyond the limited focus on punishment, these instruments, as AU Commission chairperson Moussa Faki noted, “will be of great assistance to countries in addressing the challenges of reconciliation, social cohesion and nation-building more effectively, all of which are central to peacebuilding and sustainable human development”.
Third, drawing on the lessons from South Africa’s experience that focused on civil and political rights violations, they envisaged transitional justice approaches that also focus on the socioeconomic rights dimension. Emphasis is put on the need “to address economic, social and cultural rights violations, historical and structural inequalities, and issues of sustainable development”, as pointed out in the African Commission’s study.
Additionally, it is noted that the various experiences on the continent “highlight the importance of taking local conceptions of justice into account, especially in terms of collective approaches to justice and reconciliation” and “acknowledging the differential impact of conflict on women and the need for women’s participation in the design and implementation of [transitional justice]”.
Striking a balance
Fourth, on the perennial debate of peace versus justice, the policy and the African Commission’s study introduced a bold concept of balancing, recognising the unavoidable tensions between these interrelated, but at times competing, objectives of transitional justice. The concept of balance, as elaborated in these instruments, thus accepts both the necessity and legitimacy of striking the delicate balance and achieving a just compromise based on both a conception of accountability that goes beyond criminal punishment, and identification of institutional and policy innovations.
This balancing encourages creating conditions that facilitate acknowledgement of responsibility and the suffering of victims while facilitating reconciliation and restoration. One thus agrees with Faki’s hope that such articulation of transitional justice is sure to make “a significant contribution to the global discourse and practice on transitional justice” and help steer the debate on peace and justice “towards a more balanced and, ultimately, more effective approach”.
Fifth, at a time when there is widespread recognition of the limits of international criminal justice, notably that of the International Criminal Court (ICC), these documents present much-needed legal materials to fill the gaps resulting from the limited scope of application and approach of ICC-based justice and to offer mechanisms for translating ICC-based principles into national processes. The value of such an avenue and its possibilities has already been demonstrated in the case of how the delicate balance between peace and justice has been successfully and sensitively struck in the Colombia peace agreement referred to above, which has been hailed as a landmark example in the field of designing transitional justice.
These instruments are also landmark achievements in terms of the processes of their elaboration and the range of voices they represent. These new transitional justice instruments reflect a rich synthesis of the voices of various sectors of the public, including civil society organisations, representatives of affected communities, experts from diverse disciplines and state representatives. In this sense, the process is manifestation of what political scientist Thomas Tieku calls the 3D character of AU norm development and implementation — reflecting the role of Afrocrats (AU technocrats), outsiders (actors with no formal role in the AU but with influence in the AU) and state actors.
Beyond articulating a rich conception of transitional justice, what also makes the AU transitional justice policy and the African Commission’s study valuable is the homage that they pay to the rich and diverse transitional justice experiences of African societies and the wealth of resources that African legal instruments and indigenous legal traditions possess for designing and implementing tailor-made transitional justice processes. These documents have opened new boundaries and they also represent the role of the AU system, which over the years has made major contributions to various areas of international law. These are the latest ground-breaking additions contributing to international discourse, norm-setting and practice.
Without a doubt, these are hugely important instruments carrying far-reaching normative, policy and scholarly significance that should be welcomed. However, their normative, policy and discursive benefits will not be harvested by the mere fact of their elaboration and adoption. A great deal depends on how these two instruments inform and shape transitional justice initiatives and how various actors, including AU institutions, member states, civil society organisations, affected groups, and research and academic institutions draw on and engage them as part of their implementation, advocacy, research and teaching activities.
Dr Solomon Ayele Dersso is a legal scholar specialising in human rights and transitional justice and an analyst of African affairs. He is also the chairperson of the African Commission on Human and Peoples’ Rights and spearheaded the drafting of both the AU Transitional Justice Policy and the African Commission’s Study on Transitional Justice. Follow him on Twitter @SolomonADerrso