By Ms. Munini Mutuku

The African Union Transitional Justice Policy (AUTJP) which is a new milestone in the continents conquest for African solutions to African problems[1] is a home grown tool kit that is crucial for the promotion of: human rights and justice, peace and security, good governance and development[2]. Developed through a consultative process, it attempts to steer away from the dogmatic pursuit of justice which more often than not is planned and implemented in a top-down and State-centric manner with an exclusive focus on the criminal dimension of human rights atrocities in question, and a selective disregard of the local context[3]. Instead, the AUTJP adopts progressive methodologies and approaches rooted in African shared values and traditional justice systems and experiences[4]. In the efforts to address the realities of post conflict reconstruction and development, this aspects make it a unique transitional justice instrument that will give attention to the indigenous peace and justice traditions, and hopefully offer sufficient platforms for the voice and agency of those most affected by the conflicts[5].

The Policy enriches the field of transitional justice by giving focus to aspects that are traditionally not the mainstream of transitional justice initiatives but are necessary for the continent. It enshrines within its substance: collective rights or ‘third generation’ rights – using the term peoples’ rights possibly in recognition of the diversity of the groups it could accommodate; recognition of the continued struggle against traumas of slavery and post conflict societies, colonialism, and apartheid; socio-economic aspects under redistributive justice; post conflict reconstruction and development; amongst other aspects.

The inclusion of redistributive justice with a focus on social and economic rights challenges the prevailing practice where truth commissions, human rights trials and reparation programs largely engage with civil and political rights violations[6]. In a continent struggling with ‘mass poverty and socio-economic concerns’ and whose conflicts largely emanate from the use, access and ownership of natural resources at the local, national or regional level, the expansion of the elements of transitional justice provides an opportunity to enshrine within its practice considerations on the right to a general satisfactory environment favorable to the peoples’ development which is entwined with the right to life and dignity of the human person.

The AUTJP indicates that: “The benchmarks and standards for redistributive justice may include:

Land reform and protection of property rights, including traditional ownership, access and use of land and resources on land …”[7] This brings to discussion the need to recognize and respect the relationship, understanding and responsibility related to land and the resources thereof, which comprises of nature and at large the environment. This further speaks to the provisions of the African Charter on Peoples’ and Human Rights which, in Article 21, stipulates that: “All peoples shall freely dispose of their wealth and natural resources…”[8] which brings to the fore sovereignty over natural resources, which when expounded, denotes the peoples’ right to exercise control over the natural resources in their vicinity, critical for their livelihood[9].

Though, the actualization of this stipulations are far from reality as the sovereignty on resources is limited. It has been curtailed by; extractive capitalism, the power of authoritarian local elites, predatory multinational entities both domestic and foreign, neo colonial relationships that continue the plunder and exploitation of natural resources[10] causing an ecological crisis.

The ecological crisis finds its clear expression in acute environmental degradation, land exhaustion, over-exploitation of natural resources, destruction of natural flora and fauna, pollution and disease, dumping of toxic wastes, remnants of war, amongst other realities[11]. The deleterious impact on the environment and ecosystems is a threat to peace, security and development within the continent[12]. Thus, this urges transitional justice to have a more nuanced understanding of violent conflicts by expanding focus and including environmental crimes and abuses[13]. Eventually this improves coordination between its efforts, peacebuilding and development operations in post conflict justice[14] and enhances the opportunity to nurture a sense of ownership among the people of societies in which transitional justice mechanisms are pursued[15].

Munini Mutuku is Senior Programme Officer, Kenya National Cohesion and Integration Commission, based in Nairobi, Kenya

[1] African Union Transitional Justice Policy 2019
[2] Ibid
[3] Ibid
[4] Ibid
[5] Sharp, Dustin N (2013) Beyond the Post Conflict Checklist: Linking Peacebuilding and Transitional Justice Through the Lens of Critique. Chicago Journal of International Law. Vol. 14 No. 1. Article 6.
[6] Carranza Reuben (2008) Plunder and Pain: Should Transitional Justice Engage with Corruption and Economic Crimes? The International Journal of Transitional Justice, Vol. 2, 2008, 310–330, doi: 10.1093/ijtj/ijn023. Published by Oxford University Press.
[7] See Supra note 1
[8] African Charter on Human and Peoples’ Rights Art 21
[9] FIAN International Briefing: December 2015. Rights to sovereignty over natural resources, development and food sovereignty. https://fian.org/files/files/PeasantsRights_Sovereignty_NaturalResources.pdf Accessed 11th September 2021
[10] Environmental and Climate Justice in North Africa. Published March 20th, 2020. https://roape.net/2020/03/20/environmental-and-climate-justice-in-north-africa/  Accessed 14th September 2021
[11] A UNEP – Interpol Rapid Response Assessment, 2016: The Rise of Environmental Crime: A Growing Threat to Natural Resources, Peace, Development and Security.
[12] Ibid
[13] Harwell E. Emily (2016) Buidling Momentum and Constituencies for Peace: The Role of Natural Resources in Transitional Justice and Peacebuilding, Governance, Natural Resources, and Post Conflict Peacebuilding, ed. C Bruch, C. Muffet, and S.S, Nichols London. Earthscan.
[14] Ibid
[15] See Supra Note 6