NAME : KHETHIWE MALABA

STUDENT NO : L0200131K

PART : 2.1

FORMAT : BLOCK

FACULTY : HUMANITIES AND SOCIAL SCIENCES

PROGRAMME : PEACE, CONFLICT AND SECURITY STUDIES

QUESTION : DISCUSS THE STATE OF TRANSITION JUSTICE IN

by Western powers, to conflict between and amongst each other as citizens of particular

nations. With that in mind, efforts have been made to bring peace and justice to those who have

been deemed to have been abused through the concept of transitional justice. It is therefore the

purpose of this essay to discuss the state of Transitional Justice in Africa.

To start the discussion, it would be wise to define the concept of transitional justice.

Transitional justice (TJ) is described by the African Union (AU) as "the various (formal and

traditional or non-formal) policy measures and institutional mechanisms that societies, through

an inclusive consultative process, adopt to overcome historical wrongdoings, divisions, and

inequalities and to foster both security and democratic and socio-economic transformation." TJ

is therefore focused on putting an end to violence and the accompanying inequities in societies

emerging from armed conflict or authoritarian repression and creating an inclusive rule-based

political and socioeconomic system that is able and willing to uphold human and people's

rights. This is accomplished via a variety of judicial and extrajudicial actions that have

components of retribution and restorative justice, ensuring that offenders are brought to justice

while compensating victims, fostering social cohesion, and promoting institutional change and

socioeconomic inclusion.

Moving on with the discussion, it is worth mentioning that, over the past three decades, TJ has

become a common feature of peacebuilding in Africa. Since the end of direct colonial authority,

some nations on the continent have had intra-State disputes, ranging from election violence to

civil war, as a result of a mix of poor governance and outside involvement. These conflicts

have their roots in the socioeconomic injustices brought about by colonialism as well as the

oppressive and extortionate actions of dictatorships, military juntas, and post-independence

State elites. Old complaints have been made worse by fierce competition and the lack of
agreement among competing elites in environments of political polarization that is fueled by

ethnocultural factors.

Most nations that have gone through violent conflicts or brutal authoritarian rule have

implemented—or are implementing—some type of transitional justice system. Different

transitional justice procedures have been put into place in numerous African nations since the

1990s. Many nations have put transitional justice systems into place, established legislation to

support them, or included provisions for them in peace agreements or other legal documents.

These include Angola, Algeria, Burundi, Chad, Cote d’Ivoire, the Democratic Republic of the

Congo (DRC), Ethiopia, Ghana, Kenya, Liberia, Mozambique, Nigeria, Namibia, Rwanda,

Sierra Leone, South Africa, Sudan, and Uganda. Criminal trials or prosecutions are often

employed methods. These are carried out by national criminal justice institutions that depend

on specific prosecution bodies in nations like Ethiopia and Sudan/Darfur. The Central African

Republic, Chad, Liberia, Rwanda, Sierra Leone, Uganda, and the Democratic Republic of the

Congo have all used international, hybrid, or a combination of national and international

criminal processes or regional criminal tribunals. Truth and reconciliation commissions

(TRCs) or commissions of inquiry are additional often employed techniques, although having

diverse designs and locations. These have been employed in South Africa, Morocco, Ghana,

Liberia, and Chad among other locations, with varying degrees of success and in a variety of

institutional settings. Traditional judicial systems have also been applied in Sierra Leone,

Mozambique, northern Uganda, Rwanda, and the Gacaca process, despite their restricted scope

and application.

As the discussant seeks to highlight the authentic state of TJ in Africa, it is true to note that,

although transitional justice is frequently used in African societies in transition and has entered

the mainstream of discussions on peace and security as well as the work of policy-makers and

advocacy groups, the level of consensus surrounding its conceptual, normative, and operational
content and scope, as well as the requirements for its success, leaves much to be desired. The

fundamentals of transitional justice, including what it entails and what it implies, are still up

for debate, despite the continent's extensive and rich experiences with it.

Transitional justice is primarily conceptualized in terms of legal and judicial processes in

mainstream practice and discourse. Criminal prosecution is the preferred method for the

mainstream traditional practice of or discourse on transitional justice, which was modeled after

the Nuremberg trials of the Nazis following World War II. This type of justice, often known

as adversarial or retributive justice, is focused on holding people suspected of violating human

rights and humanitarian law accountable through the use of fair trial criteria. It is broadened to

include truth commissions, which typically employ legal methods and tools. Legal and judicial

forms of justice primarily concern the documentation of human rights violations and the

establishment of accountability for the violations through legal investigation methods and

processes, regardless of whether they take the form of prosecutions, truth processes, or a

combination of the two.

Hence, in African countries affected by or going through violent conflicts or authoritarian

repression, there is unquestionably a place for judicial and legal forms of justice for violations.

However, the emphasis placed on these types of justice by conventional mainstream

transitional justice systems has several faults, making these types of justice completely

insufficient to satisfy the needs of the African transitional environment in terms of justice. First,

the liberal tradition's leaning toward individuality is manifested in the juridical and legal

systems of justice. As a result, there is a propensity to place sole blame for massive crimes and

human rights breaches. This is insufficient because the purpose of criminal proceedings is to

assign blame and punish the "guilty." Each person uniquely receives this. The South African

Constitutional Court's Emeritus Justice Albie Sachs (2009), a prominent judge, notes that legal

and judicial forms of justice are "focused with accountability in a narrowly individualized
sense. They primarily deal with punishment. Truth commissions also exhibit this

individualization of responsibility, which is not just a trait of criminal prosecutions. "The TRC

was less an alternative to Nuremberg than an effort at a proxy," Mamdani (2015) writes. Its

fundamental concept, that all violence is unlawful and that everyone is responsible for it, was

shared with Nuremberg. Also, it is worth mentioning that, this emphasis on the

individualization of violations and accountability is problematic in the African transitional

context, where group and community identity is profoundly ingrained in the cultures of the

people and the multinational or multicultural nature of the African state (Mutua, 2011). As the

recent experience of South Sudan demonstrates, violent instability or armed conflicts

frequently follow ethnocultural lines, and in such environments, a strategy with a focus on

individualism would prove wholly ineffective. Thus, a notion of human rights is required that

adequately considers the communal and group nature of wrongdoings and obligations.

Second, the Nuremberg-inspired transitional justice's individualist tendency frequently

obscures the location or origin of the violations. Instead of focusing on the considerably more

complex causes of mass atrocity crimes, it places an excessive amount of emphasis on specific

people as the problem's root. The frameworks of the state's political, socioeconomic, and

cultural power, as well as how this power is used and distributed among various segments of

society, are typically the origins of mass atrocity crimes. The outcome of such a legal process,

according to Justice Sachs, is that "the social processes and cultural and institutional institutions

accountable for the infractions remain (or are left) un-investigated."

A more substantive issue is whether criminal justice is the justice that victims primarily seek.

In its report “Darfur: The Quest for Peace, Justice, and Reconciliation”, the AU High-Level

Panel on Darfur shows that for victims and Darfuris, while supportive of the International

Criminal Court (ICC) process, the prosecution of a few individuals is not their only or

immediate concern. The report states that "their most pressing demand was for protection and
security guarantees, followed by a political settlement that can result in an equitable

distribution of wealth, development, the rule of law, and a political system that gives them a

significant say over their affairs within Darfur."

The focus of modern transitional justice practice and discourse is restricted to how to remedy

historical wrongdoings, with a concentration on human rights breaches. Transitional justice is

thus focused on identifying those activities that are viewed as violations within the human

rights framework, regardless of the form it takes. In other words, this method of transitional

justice strives to hold offenders accountable for violations of the law, either through criminal

prosecution or through truth-seeking procedures. This strategy focuses on reaffirming the rule

of law and, at the very least, penalizing wrongdoing. There are various reasons for this

restricted focus.

First, it derives from the historical precedent—the Nuremberg trials—from which the idea and

paradigm of transitional justice were developed. Second, transitional justice draws on the

liberal tradition of accountability for crimes, which advocates an adversarial, retributive model

of formal legal justice, as an outgrowth or by-product of the human rights movement, which

was primarily led and supported by Western players (Lambourne; 2009). Third, this specialized

approach to transitional justice is also a result of the field's professional bias, which has been

predominantly dominated by attorneys and human rights activists.

All the same, it is important to emphasize that several problems result from the traditional

mainstream approach to transitional justice in Africa's limited focus and breadth, as reiterated

by Posner (2004). The first has to do with how it defines what constitutes a violation, which

tends to emphasize violations of the rights to life, physical security, and liberty because they

are most often characterized in terms of physical violence. There is unquestionably merit in

seeking the upholding of political and civil rights and freedoms through legal and judicial
processes. However, as South Africa and Zimbabwe have shown, they can only go so far in

resolving the outrage and injustice brought on by historical and current structural inequities

and socioeconomic disadvantages. The concept of violations that occur in situations of armed

conflict or violent authoritarianism should be broadened in this context and go beyond just civil

and political rights. Additionally, it needs to discuss the many socioeconomic disadvantages

and unjust power dynamics that influence different societal groups and perpetuate disparities.

Another significant flaw in the typical mainstream transitional justice discourse's restricted

focus is that it places far more emphasis on the past than on the present and future. Of course,

societies that have experienced violence want to see justice served and that those who have

committed terrible crimes are held accountable. For societies that have suffered from armed

conflict and the destruction caused by mass atrocity crimes, there is also a much greater interest

in outlining an inclusive, just, and democratic order that upholds stability and peace fosters

national harmony and cohesion, and protects the rights of all citizens. It is unlikely that a

transitional justice strategy that is restricted to punishing past wrongs can serve as an effective

framework for addressing calls for changing the power structures and relations that underlie

violent conflicts or authoritarian control.

Third, transitional justice's narrow emphasis on legal culpability in the personalized sense

focuses more emphasis on the perpetrator than on the victim, as well as on the past rather than

on the demands of people who have been impacted by violence in the present and the future.

Sanctions against criminals, whether criminal, civil, or political, are significant in any idea of

transitional justice, but they are not fundamentally victim-centered, as Makau Mutua correctly

notes. They are perpetrator-centered by design and effect. According to Lambourne (2009),

they may not help the victim and instead are solely intended to appease society as a whole for

the transgression of societal norms that the violations represent.

transitional justice, the widespread use and growing acceptance of these procedures in Africa

have taken on a formulaic nature. The mechanics of creating and putting into practice a single

tool or a group of related ones that are designated as transitional justice mechanisms have

therefore received a lot of attention. The August 2015 peace deal for the resolution of the

conflict in South Sudan included a transitional justice architecture consisting of a hybrid court,

the Commission for Truth, Reconciliation and Healing, and a reparations commission, using

this formulaic approach to transitional justice. In addition to turning transitional justice into a

technical exercise, this formulaic approach also involves the legal abstraction of specific issues

from a broader context. The complexity, conundrums, tensions, and contestations that arise in

transitional settings are obscured or impossible for transitional justice to address as a result of

its transformation into a technical exercise. As a result, regardless of the availability of the

objective conditions required for their design and implementation, transitional justice

procedures or mechanisms are proposed, constructed, and attempts are made to implement

them in all kinds of conditions. Chidi Odinkalu, Mamdani, and Brian Kagoro point out the

ineffectiveness of such a transitional justice strategy. In Africa, transitional justice must deal

with "the messy reality of centuries of colonial dominance and exploitation, decades of

plutocratic and kleptocratic rule, deeply ingrained anti-national social pathologies, notorious

ethnic chauvinism, and gender and class apartheid," according to Kagoro (2012).

Despite the particularities of the African post-authoritarian or post-conflict situation, this

template or formulaic approach gives transitional justice an apolitical impetus that is primarily

linked with Nuremberg's shadow over transitional justice. Thus, according to Mamdani,

Nuremberg redefines the issue and its resolution. Extreme violence—radical evil—is the issue,

and the question it raises is who is to blame for the violence. The remedy summarized as

"lessons of Nuremberg" is to view violence as criminal and individual responsibility for it;
governmental instructions cannot absolve officials of individual culpability. This obligation is

primarily regarded to be ethical rather than political.

What has been referred to as the implementation gap is connected to the aforementioned. In

African states emerging from conflict or authoritarian rule, transitional justice systems are

increasingly popular or customary to suggest or even embrace; nonetheless, they are at best

ineffectively administered and at worst not implemented at all. When criminal proceedings

have been tried, either they have been used as tools to legitimize the new system or their scope

has been severely constrained. The use of criminal proceedings by one of the conflicting parties

in Ethiopia, Rwanda, and even Chad acted as a type of victor's justice, legitimized the newly

emergent order, and started the procedures for making a break with the past. According to

Garima (2013), even when hybrid or multinational courts have been employed, like in Sierra

Leone and Rwanda, their impact was minimal, they were expensive, and they left no lasting

impact on the afflicted societies other than their addition to international criminal

jurisprudence. Only 13 people were indicted by the Sierra Leone hybrid tribunal, compared to

the 80 people who were charged by the International Criminal Tribunal for Rwanda, which

resulted in 20 convictions and three acquittals.

Moreover, truth commissions have not performed or pursued their mandates any more

satisfactorily. The difficulties in this situation concern not only the structure, membership, and

investigative techniques of such commissions but also their coverage of a wide range of

subjects and actors, the publication of their conclusions, and the implementation of their

recommendations. Humphrey (2003) articulates that the South African TRC, which

popularized truth commissions worldwide, has come under fire for several shortcomings, such

as failing to refer cases for prosecution (Cole, 2007), implementing recommendations, such as

those relating to reparations, insufficiently, and failing to look into the economic and social
effects of apartheid (Aronson, 2011). Other African nations, including Kenya, Sierra Leone,

and Zimbabwe, among others, have disregarded the recommendations of such mechanisms.

Therefore, to draw the discussion to a conclusion, It's crucial to realize that the circumstances

and historical background of the transgressions in the African context necessitate a thorough

and substantive vision of transitional justice that goes beyond judicial and legal forms of

justice. A concept of transitional justice along these lines is comprised of what Mutua refers to

as principles that "are guided by their ability to heal; put victims at the center; seek cooperation

with perpetrators; understand abominations as injuries to social relations; de-emphasize the

punitive or criminality of offenses and emphasize the causes of the abominations." Thus, it can

be argued that the state of Transitional Justice requires some reforms if authentic peace and

reconciliation are to be achieved due to the factors mentioned.

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missing persons. International Journal of Transitional Justice, 5(2), pp.262-281.

Cole, C.M., (2007). Performance, transitional justice, and the law: South Africa's Truth and
Reconciliation Commission. Theatre Journal, pp.167-187.

Gahima, G., (2013). Transitional justice in Rwanda: accountability for atrocity. Routledge.

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105.

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