New AU policy pushes frontiers of transitional justice

14.01.2020

Solomon Ayele Dersso

Balancing of looking back and looking forward encourages creating conditions that facilitate acknowledgement of responsibility and the suffering of victims while facilitating reconciliation and restoration. The AU policy is a homage to the wealth of resources that African legal instruments avail for designing and implementing tailor made TJ processes.

This has been a watershed year for transitional justice in Africa.

After almost a decade of legislative process, the African Union (AU) Assembly, the highest decision-making body of the AU, adopted the AU Transitional Justice Policy in February this year.

This followed the adoption, by the African Commission on Human and Peoples’ Rights – AU’s premier human rights body – of a landmark Study on Transitional Justice and Human and Peoples’ Rights in Africa.

Together, these two normative documents, which were developed with technical support from the Centre for the Study of Violence and Reconciliation (CSVR), present a conception transitional justice reflective of the richness of the norms and transitional experiences on the continent. While these documents drew on useful contributions of existing models and experiences, they also sought to problematize and rectify the major drawbacks of the mainstream discourse and practice of transitional justice. In so doing, they sought to map new frontiers of transitional justice distilling the lessons from the transitional justice experiences of various countries on the continent.

While 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. It thus defines the core challenges of transitional justice to be political, socio-historical and structural rather than being matters requiring criminal probing only.

There are some points worth highlighting for illustrating how the two instruments push the frontiers of transitional justice globally. First, going beyond the actions required to remedy the wrongs done, these instruments advance a conception of transitional justice that entails measures that facilitate ‘fair institutional, social and economic systems of governance and inclusive development.’ Thus, they enjoin societies in transition to balance the use of backward-looking measures emphasizing punishment with forward looking ones that help transform victims and perpetrators into law-abiding citizens.

Second, the two instruments highlight approaches emphasizing conciliation, community participation and restitution as well as healing and restoration of broken social and institutional relationships. Accordingly, going beyond the limited focus on punishment, these instruments, as Chairperson of the AU Commission, 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 TJ approaches that also focus on the socio-economic rights dimension of transitions. Emphasis is thus put, as pointed out in the African Commission’s study, on the need ‘to address economic, social and cultural rights violations, historical and structural inequalities, and issues of sustainable development’. Additionally, it is also 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 TJ.’

Fourth, on the perennial debate of peace versus justice, the policy and the African Commission’s Study introduced a bold concept of balancing, recognizing the unavoidable tensions between these interrelated but at times competing objectives of transitional justice. The concept of balancing 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 the hope that Chairperson Faki expressed 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 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 possibility has already been demonstrated from 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. Mirroring the process of their elaboration, these new transitional justice instruments reflect rich synthesis of the voices of various sectors of the public including civil society organizations, representatives of affected communities, experts from diverse disciplines and state representatives. In this sense, the process is manifestation of what Thomas Tieku calls the 3-dimensional 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 TJ Policy and the African Commission’s Study valuable is the homage that they pay to the rich and diverse TJ experiences of African societies and the wealth of resources that African legal instruments avail for designing and implementing tailor made TJ processes. With the new boundaries they have opened up, they also represent the norm entrepreneurship role of the AU system, which over the years made major contributions to various areas of international law. These are the latest but 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 highlighted in the foregoing 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 organizations, affected groups and research and academic institutions draw on and engage them as part of their implementation, advocacy, research and teaching activities.

Further information: African Union Transitional Justice Policy (adopted February 2019) [pdf, 52 pages]

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Issue: Politics

Dealing with the past is often subject to passionate political struggles - on the national, as well as on the international level. They can lead to rather supportive or suppressive, truly effective or ineffective frameworks, institutionalised by state-policies and laws. However, below the surface, political struggles are about the access to scare resources, institutions or, more generally, the distribution of power. What political initiatives exist that try to foster inclusive and coherent processes of dealing with the past? Why do they exist and what is their room for manoeuvre?

Author

Dr Solomon Ayele Dersso is, a legal scholar with a specialization on human rights and transitional justice and analyst of African affairs, is the Chairperson of the African Commission on Human and Peoples’ Rights and adjunct Prof of Law at the College of Law and Governance Studies, Addis Ababa University. Follow him on Twitter @SolomonADerrso