It is not unusual to hear many activists, communities and the public in general asking, what is this Transitional Justice? Where are we transitioning from and to where? It might sound simple among advocates of global justice but the questions demonstrate the ambiguity that this concept has generated.

As a field of study and “practice” Transitional Justice is struggling to gain feet politically and academically as multiple critics question its glaring flaws and weaknesses to deal with past atrocities during repressive regimes or civil conflicts.

Many countries such as Burundi, Rwanda, Kenya, Cote D’ivoire, Sudan, Central Africa Republic, Mali, Libya and more recently South Sudan, to mention a few, have faced many types of civil strife, wars and conflicts in the post-colonial period. Many more conflicts are still ongoing in those countries or have transformed to other types of conflicts.

As the global community has sought to intervene, various processes have been suggested and fronted to realise justice for victims of individual and collective violence, accountability for perpetrators of violence of human rights violations, truth seeking, reparation for victims, reform of State institutions and vetting of public officials to promote accountability.

These Transitional Justice processes have assumed that:
• Realising an ideal of justice for those who are vulnerable and powerless in society, transitional justice seeks to contribute to social coexistence and democratic stability.
• Breaking the cycle of impunity is necessary to prevent the recurrence of similar widespread and systematic violations.
• Dismantling or overhauling the structures that caused gross violations in the first place is regarded as a prerequisite for judicial, security sector, civil service and constitutional reforms.
• Investigating, prosecuting and punishing perpetrators of mass atrocities is a means of deterring similar minded individuals and groups.
• Engaging in honest introspection about the past, through truth seeking, is cathartic as it offers better prospects for the stability of a post-conflict society than indifference and denial. It is also believed that societies that confront their past are better off than those that do not.
• The creation of well-functioning institutions through reforms and the rule of law lead to a responsiveness by the State to the interests of the general populace and the inclusion of the least powerful sections of society.

However, a critical evaluation of these assumptions and hypotheses has proved otherwise. Various mechanisms such as truth seeking processes in South Africa, Sierra Leone, Kenya, Mali and Cote D’Ivoire have demonstrated their complexities in getting the truth as well as dealing with their other diverse mandates such as reconciliation or justice.

In reference to criminal prosecutions for individuals with the greatest responsibility in violence in Kenya, Democratic Republic of Congo, Sierra Leone and Cote D’Ivoire, cases remain much politicised with few chances of reconciling communities that were in conflict. Supporters of former president Laurent Gbagbo in Cote D’ivoire have questioned why the other parties to the conflict who were highly responsible for mass atrocities in 2010 have not been summoned also at the International Criminal Court.

Reparation for victims of atrocities in Kenya, South Africa and Cote D’Ivoire have either been marred by corruption, mismanagement or empty promises to individuals who struggle to rebuild their past. For example in South Africa only a small number of those enlisted during the TRC process have been compensated; nor have the survivors been fully consulted in the Draft Regulations Relating to Community Reparations. Beyond publication in the Government Gazette, the Government did not undertake any effort to ensure that victims are made aware of and understand the regulations and allowed less than three months for stakeholders to comment on the regulations. Victims have remained victims forever with no urgency to rebuild what they lost.

While Transitional Justice has sought to enable societies to come to terms with legacies of large-scale past abuse, in order to secure accountability, serve justice and achieve reconciliation towards a future that is democratic and free from violence, many dilemmas have emerged along the way. One such dilemma is the attempt to draw a demarcating line between victims and perpetrators. The international humanitarian law has promoted the crystallizing of the distinction between combatants and non-combatants, between victims and perpetrators, between individual and collective responsibilities, and between the architects of violations, the commanders and rank-and-file executioners.

In many ways this process has failed to realise the complex dynamics of most conflicts in Africa where combatants from conflicting communities have been engaged in fighting and revenge attacks leading to mass loss of life and property. In these scenarios it is quite difficult to define who is the victim and who is the perpetrator. Transitioning in such contexts must question whether only the law can assist such communities to move from conflict to realizing sustainable peace. Additionally another question that arises is, is prosecution of the perpetrators of crimes committed during the conflict effective in fully creating cultures and structures that ensure non-repetition of such conflicts? But more important in these conflict spaces there are also spectators who sometimes take up positions to become combatants or perpetrators.

If the truth seeking process is to be relied on in enabling communities make progress in dealing with the atrocious past then serious rethinking of this mechanism is needed. The South Africa’s Truth and Reconciliation Commission (TRC) demonstrated one weakness during its operations. It assumed that bringing together perpetrators to confess their crimes would lead to an automatic reconciliation. This reconciliation has not been achieved to date, reason being the commission failed to address core practices of apartheid that created deep racial divisions in South African society for almost a century, including the forced removal and displacement of millions of people based on race and everyday policies and practices of apartheid. These, among other challenges in the truth seeking processes, have not been useful in informing countries such as Kenya, Mali and Cote D’Ivoire during their TRC’s conceptualization, clarification of mandate, investigation of what happened, reporting and above all getting to the core of what caused violence and conflicts.

The begging question now is, have all these commissions enabled these African countries transition to the present and future their people would like to live in? This is very doubtful. A classic example is in Kenya: the Truth Justice and Reconciliation Commission elaborate report has not been officially made public by the government as most of its top officials have been adversely mentioned for numerous human rights violations. This means that its recommendations, albeit weak, are yet to be implemented as several court cases have been filed to stop the Attorney General from acting on the recommendations.

Many analysts have roundly criticized the Cote D’Ivoire Commission on Dialogue, Truth and Reconciliation (CDVR) as having done nothing to reconcile warring sides in the conflict in the country. Its troubles started with the legitimacy of its chairperson who has been highly accused by former president Laurent Gbagbo as an ally of the current president, Allasanne Ouattara. Moreover there has been a question around the period that was being investigated as being very political. CDVR was mandated to document abuses and causes of the decade-long crisis that followed the 1999 coup and a 2002 army mutiny. This has failed to account for the many conflicts that happened prior to that period which have shaped the current political quagmire in Ivory Coast. Can transition really happen in such a scenario where there is selective amnesia in the application of justice?

Interesting to observe in post-authoritarian transition, almost everyone suffered from repression in many countries in Africa. But a dynamic that is missing in the discussion about the past atrocities committed by authoritarian leaders is their collaboration with the Northern and Eastern governments in the training of State officials in torture or sale of ammunitions or support to rebels groups of other countries. Proponents of trial of despots in Africa have selectively failed to remember that they had their allies abroad who don’t deliberately feature in the accusations.

It is public knowledge that the massive atrocities committed by colonial governments were egregious and gross violations of human rights. These violations were systematic and deliberate. They were meant to suppress the African people from dissenting against colonial rule. The effects have been far reaching with the truth nowhere near documentation in many countries. While there have been knee-jerk efforts to seek for the truths about the crimes and atrocities when a conflict arises by African governments, they have failed to think about the structural violence that has been created by the historical injustices committed by the colonisers over five decades ago and other early occupiers of Africa. Why is this past history deliberately excluded from the radar of Transitional Justice?

One of the least popular mechanisms in Transitional Justice has been the reform of State institutions from being repressive and corrupt to those serving the citizenry and promoting integrity. These reforms have depended on the political will and an active citizenry. In the case of Kenya while there were deliberate recommendations on which institutions to reform such as police, judiciary and the civil service, this has been proved an uphill task. The ruling political elites have been adamant to spearhead radical transformation of certain institutions that were responsible for gross human rights violations. Some of the individuals who were involved in gross violations during security operations are yet to be held accountable and still remain in public office.

Civil Society groups and security analysts in Kenya have criticized the police vetting process due to its repeated delays, lack of transparency and failure to adequately engage the public. This process, which started in November 2013 designed to check the professional background of every police officer in Kenya’s 78,000-strong force, has barely vetted 1,000 officers and worries are that it may not be concluded by the set schedule of August 2015.The greatest puzzle in that is disturbing is how can there be reforms of such institutions if the systems that give rise to corruption and abuse of office are not dismantled? How can a transition occur if security officers still live in deplorable situations that have dehumanised them?

Lastly, when the issue of conflict is mentioned in Africa there is always a quick and narrow link with natural resource as a trigger. In part that could be true but Transitional Justice discourse is mute on holding accountable the multinational corporations that have financed the war economy with a lot of interest in the outcome of the conflict. In the case of Congo these ‘opportunists’ have not been held accountable for their role leading to violence against women, men and children. Do the victims of the decades of conflicts have a chance to get justice through Transitional Justice in the current dispensation?

The greatest worry is that countries that are going through conflict such as South Sudan are leaning towards adopting the same Transitional Justice models without much modification but where did Africa’s creativity and ingenuity disappear?

In conclusion, I would argue that Transitional Justice processes if implemented as given, would be clearly blind to the many dynamics and contexts of African societies. While I would not like to be look like a pessimist we need to consider a number of suggestions towards a transformative Transitional Justice discourse and practice:
• There need to move from over-prioritization of formal retributive justice processes which have prolonged the recovery of post-conflict countries as it sucks most resources and energy at the expense of other conflict transformational strategies. It should not be assumed that prosecutions fully serve as deterrent to commission of future crimes. Indeed societal values that deter repetition of crimes are actually built on a proactive education and education process rather than punishment.
• It is important to appreciate that the current Transitional Justice approaches are rooted on a neo-liberal hegemony that prioritises secularism. This is far removed from the African worldview that harnesses faith and communalism for people to recover. Transitional justice approaches should refocus on the realities of most communities in Africa as well as their need to recover.
• Funding for Transitional Justice in Africa is heavily external. Africans must transition from such bondage and fund its recovery from the past from its natural and human resources endowed to them;
• From a gender perspective there is need to question what exactly is a transition and when does it occur as when violence stops in the public domain it begins in the private spaces. Transitional Justice should reconfigure gender relations by confronting hegemonic and violent masculinity, which inform why violence occurs pre, during and after conflicts. Mechanisms must be careful not to entrench pre-existing gender hierarchies and discrimination;
• Transitional Justice mechanisms must be careful not to re-victimise people who have suffered from atrocities by failing to acknowledge their agency in moving from their helpless situation to one that is forward despite their adversities. Mechanisms should recognise the wide continuum of victims’ needs before, during and after the conflict;
• There cannot be a transitional from the past if we fail to question the formation of African nations-states that has been one of the contributors of structural violence that has been manifested in various ways in Africa and
• Africa must be clear on the kind of relationships, structures and systems we want to have in the current and in the future as we transition from our past. This cannot be achieved in my view by the current or future governments it’s the people’s movement for justice and transformation that can shape this narrative and fight to have.

* George Mwai works with Fahamu Africa.

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