Kevin Toro Sánchez, IJR 2021 PAREN Fellow

Kevin Toro Sanchez

Kevin Toro Sánchez is a scholar and practitioner interested in transitional justice, civil society, peacebuilding and human rights. He currently serves as an Advisor to the Zimbabwe Human Rights NGO Forum and the National Transitional Justice Working Group in Harare, Zimbabwe, and is actively pursuing his PhD in Law at the University of Leuven, Belgium. In his spare time, he enjoys cooking, swimming and photography, particularly that of lepidoptera.

The peace versus justice debate is said to create a dilemma of two mutually exclusive agendas. Whereas one is meant to focus on the criminal prosecution of political and military elites who facilitated the perpetration of human rights violations either through malicious actions or interested omissions, the other aims at reaching a settlement, often in the form of a peace agreement, between all parties involved. Both of these approaches have their detractors, as the justice road seems to be prone to allow the resurgence of violence and that of peace to allow for blanket impunity.

However, this interpretation of justice is eminently retributive and that of peace is eminently biased as the actors sitting at the decision-making table often are the political elites who have the ability of exerting violence upon one another. Moreover, in this context, peace tends to be limited to what Johan Galtung has coined as negative peace, this is, the mere absence of violence.

African Phenomenology and the AUTJP

The African continent, despite its diversity and complexity, continues to endure the consequences of the imperialist mindset of colonial forces. The inherent discriminatory and despot colonial system did not only deplete the continent of its resources but contributed to setting up a dual conscience. African societies sustain in parallel their own conscience (that of the oppressed) and that of the oppressor, which they have internalised. This idea was developed by Paulo Freire in Pedagogy of the Oppressed where he argued that by virtue of this ambiguous dual conscience and the internalization of their oppressors, the oppressed aim at becoming like the oppressor and take part in their way of life.

This setting is particularly true in Southern African countries where liberator movements have clung on to power and far from dismantling the colonial State have profited from some of its oppressive laws and institutions in a bid to remain in power and in control. Two sides of the same coin, power and control reinforce each other through the exertion of different types of violence.

To codify and advocate for the inclusion of both justice and peace ideals in post-conflict societies, the African Union adopted in February 2019 the African Union Transitional Justice Policy (AUTJP). The policy, whilst making up to thirteen different references to the need to combat impunity, offers a richer conception of justice in referencing to “restorative and transformational justice” (para 11), a postulation which embraces holistic approaches based on African shared values of peace, security and non-impunity (paras. 34 and 41). This idea is in line with the reflections of the Study on Transitional Justice and Human and People’s Rights in Africa developed by the African Commission on Human and Peoples’ Rights (paras. 84-89).

Despite the apparent margin of appreciation given to Member States in sequencing and balancing transitional justice elements, the AUTJP is unreserved in States that are unable to facilitate the prosecution of perpetrators and who ought to “galvanize national and regional consensus for and cooperate with relevant regional or international judicial processes that have jurisdiction” (paras 38 and 79).

Therefore, instead of choosing between peace or justice, the AUTJP opts to be a forward-looking document which brings harmony to the debate by declaring both elements part of the greater realm of African shared values. Both justice and peace, together with security, non-impunity, reconciliation and human and peoples’ rights to be equally pursued when attempting to address social cohesion and sustainable human development in post-conflict societies.