By James Gondi and Rebecca Muthoni Mwangi
African countries face a particular challenge when addressing their past. Neither independence nor the end of the Cold War brought effective democratic change, peace or prosperity. The most violent conflicts that shook the continent—the collapse of Somalia, Sierra Leone and Liberia, the Rwandan genocide of 1994, and the subsequent eruption of war and foreign occupation in neighboring DRC—prompted African leaders to seek African solutions to the problems of impunity and corruption that fueled much of the violence.
In its 2000 Constitutive Act, the African Union (AU) committed itself to intervene in member states to protect civilians from war crimes and other mass atrocities, even at the hands of their own governments—an African commitment to the “responsibility to protect” doctrine even before this concept was endorsed by the broader international community. As enthusiasm for justice through international courts begins to temper, transitional justice experts are considering the potential role of traditional, ethnic- or tribal-based conflict resolution. Activists in Uganda and the Darfur region of Sudan argue in favor of recognizing traditional practices such as inter-communal compensation and conciliation mechanisms—a development likely to gain traction in other countries.
The African Union Transitional Justice Policy (AUTJP) is built upon African heritage from the African Shared Values of governance and Agenda 2063’s aspirations. The policy serves to provide the African continent with an African context specific framework to build a peaceful and prosperous Africa.
The policy is not a one size fits all framework to be enforced as its success lies in the maximisation of country and context customization to achieve justice, peace and prosperity at a national and continental level. It serves to “guide AU Member States in need of TJ interventions as the concept of Transitional Justice is a necessary step in moving from a divided and painful past to a commonly shared and developed future” (AUTJP, Article 1(1), p. 6)
The concept of transitional justice is not new to Africa as different Member States have embraced different mechanisms to address the various types of conflicts and meet the needs of redress while building peace, security and development such as reparations, dialogue and commissions. Progress is relative based on the context of the conflict and the needs of the people and status of the state. This policy is multidimensional in scope as the status of the state can be monitored and evaluated through the four areas of the African Shared Values, obtained from the African Governance Policy Framework. The four areas are: democracy and good governance, the rule of law and human rights, peace, security and governance and finally continental integration, cooperation and security.
When locating the Transitional Justice Policy in the African context, they are “the local processes, including rituals, which communities use for adjudicating disputes and for restoring the loss caused through violence in accordance with established community-based norms and practices. They include traditional adjudicative processes such as clan or customary courts and community-based dialogue. Such mechanisms form an important part of the AUTJP conception of Transitional Justice. They should inform and be used alongside the formal mechanisms to address the justice, healing and reconciliation needs of the affected communities with due regard to the ACHPR and the Protocol to the African Charter on Human and People’s Rights on the Rights of Women in Africa. African traditional justice mechanisms may assume the following characteristics:
- Acknowledgement of responsibility and suffering of victims;
- Showing remorse;
- Asking for forgiveness;
- Paying compensation or making reparation;
- Reconciliation.” (AUTJP, Article 1(19), p. 4)
There are several examples of transitional societies that have successfully applied traditional and complementary justice mechanisms alongside formal mechanisms. These include Rwanda (Gacaca) and Northern Uganda (Acholi traditional rights such as ‘Mato Oput’).
James Gondi is a human rights and democratic governance practitioner. He holds an LL.M in International and Comparative law from Vrije Universiteir Brussel in Belgium and an LL. B from Keele University in Law and Politics (Dual Honours) in the United Kingdom (U.K). He has previously served as Research & Policy Advisor at the African Centre for Open Governance (AfriCOG), Head of Kenya Programme at the International Centre for Transitional Justice (ICTJ) and Legal Officer at the International Commission of Jurists (ICJ), Kenyan Section among other role
Muthoni Mwangi is a transitional justice practitioner. She holds a BBA in International Hospitality Management from Stenden University, in the Netherlands and a PGDip in Peace Studies from the University of Bradford, (United Kingdom). She is currently working on a research paper, “Analysing the contribution of memorial museums in post conflict societies in Africa”. Her areas of specialisation and consultancy focus on: transitional justice, symbolic reparations, the relationship between tourism and transitional justice, nation and destination branding and the role of the private sector in peace building, security and development. She has worked as a researcher at ICTJ in the Memory, Museums and Monuments Program, at Brand Kenya Board and at several hospitality establishments.