[Reflections by Kasande Sarah Kihika during the East Africa Transitional Justice Tafakari( Reflection) in October 2014 held in Uganda.">

Good afternoon, my discussion this afternoon shall focus on locating the agency of victims in the Transitional Justice (TJ) discourse. As noted earlier language, is often used as a powerful tool to disempower and silence key voices. I will reflect on how the disempowering language of victimhood has limited the involvement and silenced the voices of victims in policy process that shape TJ. This consequently adversely impacted on the effectiveness of TJ processes in addressing the needs of victims. Transitional processes and the mechanisms (such as trials, truth commissions and reparation schemes) through which they work tend to be prescriptive and top-down developed by elites in state institutions with limited regard to the voices and interests of victims.

This takes us to the key question that has been often asked, whose justice are we advancing? For TJ to be relevant and effective any approach to justice must be informed by local understandings of justice. The form of justice should be informed by local priorities as identified by victims and survivors. TJ processes should give primary consideration to victim’s views and concerns of justice give them an opportunity to participate more effectively.

We should resist the urge to define justice primarily by western conceptions of retribution and accountability. As Brian Kagoro rightly observes in the Refugee Law Project’s 2011 publication, ‘When Law meets Reality’, for most post conflict societies on the continent, it doesn't make sense to devote billions of dollars pursuing a few criminals at the expense of reconstruction , rehabilitation of victims and development. It doesn't make sense to spend billions prosecuting perpetrators yet survivors of the gross violations of human rights remain impoverished and living with continuing effects of the violations they suffered, with very little access to rehabilitation programs and basic social services. To be clear, I believe accountability and social reconstruction are not mutually exclusive; however when a post conflict society confronted with numerous competing demands, policy choices and priorities should be based on interventions that have a greater impact in empowering and restoring the dignity and humanity of those most affected.

In addition to going beyond the retributive and restorative justice paradigms it is necessary to incorporate measures or approaches which address the structural inequalities that triggered human rights abuses. An African transitional justice paradigm should adopt an expansive view of justice that includes restorative, retributive and distributive justice. TJ should go beyond criminal accountability and truth seeking and move to include targeted policy and institutional reforms as well as the enforcement of social economic rights. TJ should lead to the transformation of societies into those grounded on principles of equality rule of law and respect for human rights.

As noted this morning, Transitional Justice is a field with several binaries: Victims or perpetrators retributive or restorative, peace or justice. These binaries do not often reflect the unique complex dynamics and nuances of each post conflict context. The multiple identities of victims, as is the case in Uganda.

Quite often TJ limits the experiences of survivors of conflict and human rights abuses to that of victimhood. The field conveniently neglects aspects of their resistance and agency. Victims are perceived as passive individuals who play no active role in resisting their oppression. Yet most survivors and victims are not simply silent victims but active agents and resisters during armed conflict. Take an example of what we commonly refer to as child or girl mothers, a label I find problematic because it infantilizes the women, the dominant narrative about their experiences has been one of sexual violence, helplessness and abuse, yet most of them made remarkable attempts to protect themselves during situations of severe violence, some played active role of combatants. On return from captivity the TJ discourse has tried to fit them into neat boxes that they do not fit in. TJ practitioners have taken it upon themselves to limit their experience to a single story of victimhood.

The narrowing the experience of victims and survivors to that of vulnerability and victimization results in their exclusion from key processes that seek to address their plight, as TJ practitioners assign themselves the responsibility of speaking their behalf. Voices of victims and survivors are often appropriated repackaged and presented to suit the aims of the TJ practitioners. In addition to TJ practitioners, we have politicians who now speak on behalf of victims or with victims at their side, so long as the victims take the political line.

We should be wary of this paternalistic approach; it serves no aim but to diminish their agency of victims as full citizens with rights. To be clear I am not saying only victims and survivors can legitimately become involved in advocacy work of course most are still traumatized and la k skills or capacity have little access to power and resources, this means they need support to access resources and platforms to speak.

Instead of focusing solely on victim’s vulnerability and victimization it is important for TJ to shift its focus to self-efficacy of victims, resilience, and the multiple roles during conflict which go beyond victimhood. The perspectives of victims should be considered central and indispensable in not only analyzing the conflict, but in developing transitional justice interventions victims and survivors should be supported and empowered to speak for themselves, to articulate their demands for justice in a language and manner that reflects their actual needs even if it may not fit neatly in the TJ paradigm.

Part of social reconstruction and healing is recognizing the agency of victims as full citizens capable of determining what justice means to them and how to achieve it.From a TJ perspective, agency is the inherent power of victims to define their own interests and preferences for justice. They should participate in national processes aimed at designing policies of transitional justice. It includes defining justice on one's terms based on the contextual realities.

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