Toward a different transitional justice paradigm: Women, Land and other women-centred issues

By UBuhle Zulu

In 1962, American philosopher, Thomas Kuhn, introduced the world to the term ‘new paradigm’ in The Structure of Scientific Revolutions. According to Kuhn, “ A paradigm is a universally recognizable… achievement that, for a time, provides model problems and solutions to a community of practitioners.”[1]  In Transitional Justice, the current model approach has been around since post-World War II, with a few changes here and there, and its core aim was to assist “… countries emerging from periods of conflict and repression large-scale systematic human rights violations”[2] the aims and approaches of transitional justice have remained the same over the years and as a result, the current transitional justice model has fallen into the tendency of offering old solutions to the new worsening problems of the times. Perhaps what makes Kuhn’s work timeless, is the question of what happens when this so-called ‘universally recognized paradigm’ no longer works? Like Kuhn’s criticism of old paradigms that no longer work, the current transitional justice paradigm approach is now threatened by the same fate. When it comes to being inclusive of women, the current western model of transitional justice has often offered the same modus operandi of appearing to consider the plight of women in the African continent on paper but not in implementation, the African Union Transitional Policy (AUTJP)’s stance on the issue of land and women illustrates this point.

When the African Union Transitional Policy (AUTJP) published its Transitional Policy in 2019, one of the sections designated to women in the document sought to include ways to also make women an issue of priority in the transitional justice paradigm. It stated the following; “The benchmarks or standards for retributive justice… Land reform and protection of property rights, including traditional ownership, access and use of land and resources on land, having regard to the need to guarantee the inheritance and property rights of women in accordance with national laws;”[3] While this approach is commendable and is a step in the right direction, it falls into the trap of being stuck in a well-written document chronic complacency. The current issues that women in the continent face in terms of land show that little has been done to truly ensure that these rights are implemented. So, what is post about post-transitional justice, especially, when it comes to the issues of women and land? Little and also nothing. Old transitional justice models often look at the crimes committed during the conflict, where the scrutiny of ways to address ‘human rights’ ends up being the default for ‘human’ to mean men and less about the exclusion and othering of women. It is becoming apparent that perhaps one of the ways that show us that the old model of transitional commissions does not work anymore, is in how women-centred issues are often less considered or thought of last, especially when transitional commissions are tasked with transitioning a society. What this paper argues is that African women’s positionalities in the continent, in transitional justice, must be relooked through a decolonized lens and also through adopting progressive and emerging approaches in transitional justice such as Process Pluralism.

A decolonized transitional justice approach can be defined as an approach that seeks to look at the transitioning of a society beyond just conflicts but rather through dismantling the old colonial thinking, such as dissecting and unpacking the history of Africa women’s positionalities, (at a stretch, an African centred transitional commission designated to look into how colonialism has manifested into societies and how we witness this in more intensified occurrences such as conflict, is imperative.), which may aid in explaining why land rights when it comes to women have been difficult to implement, to which McClintock answers, in the South African context that women were never seen as citizens but rather were seen as “…figured as mere scenic backdrops to the big-brass business of masculine armies and uprisings”[4] and now even conflicts.

The point is, seeing women as merely ‘scenic backdrops’ in what should be all-inclusive human rights transitional justice approach is the result of the old colonialist thinking that influences the tendency of newly freed countries in Africa, too often have the proneness of using the previous (colonialist thinking) master’s tools to dismantle the master’s house in their approaches to issues pertaining to women and land. The current transitional justice model does not work. There is a need for the undoing of the old colonialist thinking of how women are seen. Ergo, a decolonized transitional justice approach especially, in tackling how “Theorists of nationalism [‘are] seldom moved to explore how nationalisms are at every minute implicated in gender power.”[5], is crucial. Since, it is one-sided, gendered power keeps the rights that AUJTP is trying to address at a stalemate and this is due to the residues of colonialist thinking regarding women.

This can only be achieved by taking a previously defanged term- decolonization- that has been marketed back to transitional justice commissions to be socially performative and re-arming the decolonized transitional justice approach with new perspectives such as Process Pluralism, which is basically where multiple processes occur simultaneously or in sequence over time, this is based on the outlook that, a “wide range of different processes for civil society must include differentially experienced so that transitional justice can also be responsive to these”[6]  and as result, prevents the causes for women from being considered last.

uBuhle Maninginingi Zulu is an MPhil Justice and Transformation student at the University of Cape Town, South Africa.

[1] FutureLearn. 2012. The Structure of Scientific Revolutions by Thomas Kuhn. Last accessed: 4 September 2021. Available here: https://www.futurelearn.com/info/courses/open-social-science-research/0/steps/31470
[2] The International Center For Transitional Justice (ICTJ). What is Transitional Justice?. Last Accessed: 4 September 2021. Available here: https://www.ictj.org/about/transitional-justice
[3] African Union Transitional Justice Policy: An integrated, Propserous and Peaceful Africa. 2019. Last Accessed: 4 September. Available here: https://au.int/sites/default/files/documents/36541-doc-au_tj_policy_eng_web.pdf Page 14.
[4] McClintock,A. 1991. ‘“No Longer in a Future Heaven”: Women and Nationalism in South Africa’, Transition, No. 51. Page 105
[5]  McClintock,A. 1991. ‘“No Longer in a Future Heaven”: Women and Nationalism in South Africa’, Transition, No. 51. Page 105
[6] Menkel-Meadow, C. 2015. Process Plujralism in Transitional/Restorative Justice: Lessons from Dispute Resolution for Cultural Variations In Goals Beyond Rule of Law and Democracy Development (Argentina and Chile). University of California, Irvine, Sc hool of Law, Legal Studies Research Paper Series No. 2015-86.

By |2021-10-18T11:02:48+02:00October 15th, 2021|Uncategorised|0 Comments