Truth, Justice, and Reconciliation in Africa: Issues and Cases

Abstract: This essay identifies a number of problematic issues concerning transitional justice and restorative justice in particular and suggests that they can be fruitfully explored through thoughtful examination of the truth-seeking projects of this issue's case countries: South Africa, Rwanda and Sierra Leone. One debate is whether political transitions genuinely require a unique type of justice or whether transitional justice results from a mere political choice which compromises justice. A second issue concerns transitional justice's goals. Related to this issue is the lack of clarity concerning the criteria for a successful transitional judicial structure. A third debate is whether truth commissions do actually bring healing and reconciliation among former enemies. Finally, there is a set of very practical concerns that need attention: what are the ideal balances between trials and truth commissions, domestic and international initiatives, efficiency and effectiveness? ********** Pardon rather than punishment, or pardon for the many alongside punishment of the few, has become a trend for transitional societies coming out of eras marked by intrastate conflict. Restorative justice, which favors reconciliation among former foes over punishment of perpetrators of crimes, has been increasingly applied since 1974, with truth commissions implemented in approximately two dozen countries around the world. Most prominent among these in Africa has been South Africa's Truth and Reconciliation Commission, but Rwanda, Sierra Leone, the Central African Republic, Ghana, Morocco and Nigeria have also embarked on "truth telling" processes that emphasize reconciliation. Moreover, the Kenyan government recently announced that it will establish its own truth commission by the end of 2004, and peace agreements in Liberia and the Democratic Republic of the Congo have provided for the formation of truth commissions. These developments suggest that the idea of restorative justice is not just a fad but represents an innovative approach for citizens of many countries wrestling with the question of how to live with former enemies. This essay identifies a number of problematic issues raised in the literature concerning transitional justice in general as well as restorative justice in particular and introduces the three case study countries highlighted in this special issue. In the articles that follow, authors analyze transitional justice efforts in South Africa, Rwanda, and Sierra Leone and discuss lessons that emerge. ISSUES During the ongoing wave of democratic transformations, one can observe a "paradigm shift" in the means by which new leaders address their nations' violent past. (1) There is a new commitment at both domestic and international levels to bring justice and healing to people who have experienced gross human rights atrocities perpetrated by ousted regimes or rebel groups. Political leaders and legal theorists have argued that learning the truth about past human rights violations and punishing those responsible for them are prerequisites for the establishment of democracy and respect for the rule of law. Thus, they call for structures of transitional justice during an interim period to confront the crimes of the past in order to lay the foundations for legitimate judicial systems and democratic norms. Such structures have included the ad hoc international criminal tribunals for the former Yugoslavia and Rwanda as well as truth commissions, hybrid UN-funded courts, and revived traditional judicial structures such as Rwanda's gacaca. Transitional justice processes have inspired a growing field of study. Legal scholars tackle theoretical and ethical issues surrounding transitional justice norms, participants and researchers have analyzed a number of transitional justice institutions, and a small number of scholars have published comparative studies. (2) A survey of the literature reveals that a number of significant issues concerning transitional justice and its structures continue to bedevil practitioners attempting to implement it and scholars hoping to conceptualize or interpret it. …