UPDATE: Transitional Justice in Africa: The Experience with Truth Commissions
By Charles Manga Fombad
Charles Manga Fombad is a Professor of law in the Institute for International and Comparative Law in Africa (ICLA), University of Pretoria. He holds a Licence en Droit (University of Yaounde), LL.M. and Ph. D. (University of London) and a Diploma in Conflict Resolution (University of Uppsala). He was, from 2003-2006, Professor Honorarius of the Department of Jurisprudence, School of Law, University of South Africa. Professor Fombad is the author of 8 books and has published more than 60 articles in international refereed journals, more than a dozen book chapters as well as numerous other publications and conference papers. In 2003, Professor Fombad received the Bobbert Association Prize for the best first article in the Journal for Juridical Science. He was also awarded the Wedderburn Prize in 2003 for a paper that appeared in the “Modern Law Review.” In two successive years, 2004 and 2005, he received a special commendation from the University of Botswana Research Awards Committee for research excellence. He has been a member of the editorial board of several international journals. He was the founding editor-in-Chief of the “University of Botswana Law Journal” and a Consultant Editor of the “BIAC Journal of Business, Management and Training.” Professor Fombad has been rated by the South African National Research Foundation. His research interests are in legal history, delict (torts), media law, comparative law constitutional law, and international law.
Published February 2012
See the Archive Version!
Table of Contents
Since independence in the late 1950s and early 1960s, most African governments have been undemocratic, repressive and authoritarian. This has often been marked by serious violations of human rights. The attempts to move away from this dark era of dictatorship with the advent of the so-called “third wave” of democratization in the 1990s has been accompanied by numerous challenges, one of which is how to deal with the trauma and wounds of the past by ensuring that past human rights violations are accounted for in a manner that respects and protects the dignity of survivors and their relatives without threatening future peace and security. The democratization process has therefore also posed the problem of transitional justice.
The movement from repressive to democratic systems of governance is a worldwide phenomenon and therefore the transitions in Africa have learnt from the inspiring experiences of other transitions in Central and Eastern Europe and Latin America. The transitional challenges have usually been enormous. How do you deal with people who ruled on a daily basis by violence, terror, blackmail, intimidation and division? How do you bring back trust, economic prosperity, political stability and congenial social relations?
This paper starts by looking at the whole issue of transitional justice: what it means, what it entails and its dilemmas. It then briefly reviews the different types of truth commissions that have at one stage or another been established in Africa. It is seen that although the experiences of each country are unique and its political and historical context different, there are many unifying themes common to them such that important lessons can be drawn from each experience. It is clear that the search for equilibria that achieves justice whilst ensuring social stability and reconciliation will remain a major challenge.
The concept of transitional justice can be traced back to the post-Second World War period in Europe with the establishment of the International Military Tribunal at Nuremburg and the various de-Nazification programs in Germany and the trials of Japanese soldiers for crimes committed during the war. Today, transitional justice usually refers to the range of approaches that societies undertake to reckon with the legacies of widespread or systematic human rights abuse as they move from a period of violent conflict or oppression towards peace, democracy, the rule of law and respect for human rights.[]
The third wave of democratization of the late 1980s and early 1990s has given transitional justice a new and added impetus. From its roots as a link between transition and justice in the late 1940s, the concept has now been transformed to assume a broader perspective involving a comprehensive re-examination of a society in transition from a retrospective position to a prospective one with democratic consolidation as one of its primary objectives. Generally, a transitional justice program usually aims to achieve the following goals:
These goals are usually served through establishing the truth, providing victims of human rights abuses with a public platform, holding perpetrators accountable, strengthening the rule of law, providing victims with compensation, effecting institutional reform, promoting reconciliation and promoting public deliberation.[]
Diverse approaches to transitional justice have been tried. These approaches are both judicial and non-judicial. However, four main strategies have been used:
i) Trials and prosecution: This judicial approach can be traced to the Nuremberg trials and involves a prosecution of perpetrators of human rights violations domestically, internationally or by some special body such as Sierra Leone’s Special Court.
ii) Truth commission: This is essentially a non-judicial body, which tries to investigate the past to determine the full extent of past abuses through truth-telling public hearings. It holds perpetrators of past violations accountable, promotes reconciliation, makes recommendations on reparations, memorializes victims, survivors or historical events and makes proposals for institutional reforms designed to prevent future abuses.
iii) Lustration and/or vetting: This is a process that attempts to promote accountability, democratization and credibility by purging the public service, especially the security services of corrupt, abusive and incompetent officials.
iv) Institutional reform: This entails a reform of institutions that were considered to have been responsible for past abuses such as the judiciary, the police, the military and the security services. It often involves amendment of abusive laws as well as constitutional reforms.
In addition to this, as we shall soon see, some local and traditional forms of transitional justice, such as the Gacaca courts in Rwanda, have been tried. Be that as it may, it is necessary to note that more often than not, different aspects of these four strategies are usually combined. Nevertheless, the most popular and widely used method is the truth commission. In this generic sense, the term truth commission refers to those bodies that are set up to investigate a past history of violations of human rights in a particular country and make recommendations for the future.[] Whilst many of these correspond with the second strategy described above, quite a good number, as we shall soon see digress from this.
Transitional justice in the form of truth commissions in Africa as elsewhere in the world have encountered numerous challenges. Two particular ones need to be underscored. First, the desire to ensure that there is no perception of the process being seen as “victor’s justice.” This involves a delicate balancing act dealing with issues of truth, justice, forgiveness, healing, compensation and amnesty. The second issue, also directly linked to the first is building the structures that will ensure that past abuses are never repeated. If the ultimate goal has been sustainable peace and democracy, it is clear that Africa is still grappling with this.
Almost half of Africa’s 55 countries have established truth commissions in one form or another to help them chart their way forward and many more are expected as the recent Arab spring dust that has seen the overthrow of long-term dictators, Muamar Ghadaffi of Libya, Hosni Mubarak of Egypt and Zine El Abidine Ben Ali of Tunisia, settles. The most significant of these truth commissions was however, the South African Truth and Reconciliation Commission, which in many respects marked the high-water mark for truth commissions generally. As pointed out earlier, in some cases, these truth commissions, which are basically non-judicial bodies, have preceded or operated side by side with judicial bodies. This brief overview looks at the type of body, the way it was established, its mandate and its report. []
Violence had broken out in the 1990s after an election that the opposition was winning was cancelled. Armed Islamist groups began targeting police and soldiers and eventually started attacking civilians indiscriminately. The intervention of the security forces was harsh and resulted in several thousand disappearances and over 150,000 deaths during the seven years of the conflict. When President Abdelaziz Bouteflika was elected president in 1999, he initiated a series of measures to bring about reconciliation. He started by granting an amnesty to all those who turned in their weapons and in 2001, he established a National Human Rights Institution. A presidential decree 03-299 of 11 September 2003 established for 18 months a body called “Ad hoc inquiry commission in charge of the question of disappearance.” The commission’s mandate was to identify cases of alleged disappearances and determine the fate of the disappeared as well as draft measures to provide aid and compensation to victims’ families. However, the mandate of the commission did not include identifying those responsible for the disappearances and its investigative powers were limited by the fact that it had no access to the archives of the security forces.
In a public statement, the commission estimated that there were about 7,000-12,000 disappearances and attributed about 6,146 disappearances on the file to the state. Its confidential report was submitted to the president on 31 March 2005 and has never been made public. During the period of its operation, the commission was consistently criticized for its limited investigative powers and the government’s limited engagement with issues of accountability. A “Charter of Peace and National Reconciliation,” was published by the government on 15 August 2005 containing proposals for amnesty for rebels and possible compensation for the families of the disappeared. In February 2006, a decree implementing this Charter was enacted allowing for a blanket amnesty to security forces and widened the amnesty provisions in a 1999 Civil Harmony law. Although as many as 2640 families have received compensation totaling $37 million, the Charter has been criticized for its specificity in its proposals and the promotion of impunity. Many of the victims feel that the government was simply trying to bribe them into giving up their quest for information and prosecution of those responsible for the loss of their loved ones. Commentators say that the most positive aspect of the process was the fact that the threat of an Islamist coup has been substantially reduced by the full amnesty granted to perpetrators of minor crimes and reduction of sentences for those who committed murder, rape or public bombings.
In Burundi, the UN Security Council decided on 21 October 1993 to establish an International Commission of Inquiry to investigate the assassination of the President Mechior Ndadaye, and the massacres and other serious offences committed between October 1993 and August 1995. The commission was expected to recommend measures to bring to justice those responsible and to end impunity and promote national reconciliation.
The commission was made up of 5 Commissioners, all foreigners, and heard a total of 667 witnesses. The final report was submitted to the Secretary General of the UN on 7 June 2002. In the report, the commission acknowledged that there had been acts of genocide against the Tutsis after the assassination of President Ndadaye but claimed that it could not identify the perpetrators by name. This commission does not appear to have achieved much because in the Arusha Accords of 2000, the parties agreed to ask the UN to set up an international commission to investigate serious crimes committed in Burundi since 1962. A UN team was sent out in April 2004 to investigate the feasibility of such a mechanism and it recommended the establishment of a truth commission to establish historical facts of the conflict, determine its causes and nature, classify the crimes committed since independence and identify those responsible. It also recommended the establishment of a special chamber within Burundi’s court system to prosecute those bearing the greatest responsibility for genocide, crimes against humanity and war crimes. These recommendations were approved by the Security Council in 2005. Since the Security Council approved these recommendations in 2000, negotiations between the government on one hand and the UN on the other hand, have dragged on and on with no end in sight. Whilst the two agree on the truth commission and a special tribunal (to replace the special chamber originally proposed), it is the relationship between the two bodies that has been the source of disagreement Whilst the UN wants the special prosecutor to be given the powers to decide who to investigate, the Burundi government wants the prosecutor only to deal with cases sent to him from the truth commission. In 2007, there were 3-party talks involving a committee consisting of two representatives of the Government, two from civil society and two from the UN who also held public consultations. Final arrangements will be made in a General Framework Agreement to be signed between the government and the UN. In July 2011, the Burundian President, Pierre Nkurunziza announced that the much delayed truth and reconciliation commission to probe into decades of ethnic killings would be set up early in 2012. A special tribunal is to be created when the commission completes its investigations.
A National Reconciliation Forum, which operated between 9 September and 27 October 2003 (six weeks only), was established by President Françoise Bozize. Its aim was to promote dialogue and reconciliation between different political, social, religious affiliations and make recommendations concerning how the country should be run after the civil war that had ravaged the country for years. Not much appears to have been achieved apart from the recommendation it made for the establishment of a truth commission to investigate human rights abuses committed during the period 1960 to 2003. A follow-up committee of 21 members was established in November 2003 to oversee the implementation of the recommendations of the National Reconciliation Forum.
Probably due to the inadequacy of the process, the Central African government in January 2005 decided to send a referral to the International Criminal Court (ICC) requesting an investigation of war crimes committed in the country. In January 2006, the ICC Prosecutor, Luis Moreno-Ocampo, announced the opening of investigations into crimes committed during the conflict between the government and rebel forces. In April 2006, the ICC issued a referral for former president Felix-Ange Patassé, who had been earlier convicted in abstentia of rape and murder and given a life sentence. Despite an international arrest warrant being issued, Mr. Patassé has not yet been arrested. Whilst the government’s recourse to the ICC was seen as an attempt to end impunity, the appointment of some ex-rebels who have been listed as potential subjects of ICC investigation into government casts a shadow over the latter’s commitment to ending impunity.
A body called, the Chadian Ministry of Justice Commission of Inquiry into the Crimes and Misappropriations Committed by Ex-President Hissène Habré’s regime, his Accomplices and/or Accessories was established by President Idriss Déby and it operated for a period of about 17 months from 1990 to 1992. Its mandate was to investigate the illegal imprisonments, detentions, assassinations, disappearances, torture, mistreatment and other attacks on the physical and mental integrity of persons and all violations of human rights and illicit trafficking in narcotics between 1982 and 1990. It was also required to investigate the embezzlement of state funds. In its final report, the commission documented 3,428 killings, unspecified number of cases of torture and arbitrary detention and accused the Habré government of an estimated 40,000 political killings.
The Chadian commission report is one of the few, which actually names those individuals that it concluded were the worst human rights abusers and publishes their photographs. When the report was released, many of those named in it were serving in the new government or its armed forces. Although it recommended that many of these individuals, especially those serving in the armed forces should be purged, this was not done. It was therefore no surprise that one of Habré’s former deputy director of national security led a police squad that allegedly attacked a lawyer working for the victims. Other individuals who tried to prosecute Habré and his accomplices have also received threats.
The report of the commission assumed special importance when a human rights organization used it to support their attempts to have Habré prosecuted for crimes against humanity in Belgium in 2005. Repeated requests for his extradition from Senegal where he had taken refuge to stand trial either in Belgium or in Chad where he had been tried and sentenced to death in absentia were rejected. After intensive pressure by the international community, the UN and the AU, Senegal undertook in 2007 to bring Habré to trial before a Senegalese criminal court and not a special tribunal that the international community had advocated for. Nothing was done and under intense international pressure, the Senegalese President, Abdoulaye Wade announced in July 2011 that Habré will be extradited to Chad but two days later reversed his decision and said he will be extradited to Belgium instead. It remains uncertain whether Wade will, after 20 years sheltering and protecting one of Africa’s vicious dictators, allow justice to take its course.
In recent times, numerous mechanisms and commissions have been tried to resolve the political crisis that has engulfed this country, which was once a haven of peace. It all started going wrong when the former head of the armed forces, Robert Guei seized power in a military coup in 1999. He changed the constitution to require that any presidential candidate must be born of Ivorian parents, in order to eliminate one of his main rivals, Alassane Ouattara. He then organized elections, which he lost but wanted to declare himself winner. Laurent Gbagbo was eventually declared winner. The new president by Presidential Decree of 20 November 2000 set up the Mediation Committee for National Reconciliation to investigate the post-electoral violence in Abidjan that claimed the lives of 171 citizens from 24-26 October 2000. One of the recommendations of this committee was for the creation of a National Reconciliation Forum, which held from 9 October to 18 December 2001. The most important achievements of this Forum were the acknowledgment that Alassane Ouattara was an Ivorian and that the election of Laurent Gbagbo was legitimate.
Violence erupted in Côte d’Ivoire again after a failed September 2002 attempt to overthrow President Gbagbo. This ultimately led to a protracted rebellion that saw the country divided into two. In January 2003, after the Linas-Marcoussis peace agreement, UN and French peacekeepers were brought and another International Commission of Inquiry led by the UN Office of the High Commissioner for Human Rights was set up. A second international commission of inquiry was set up in May 2004 by the UN Security Council to investigate all human rights violations committed in the country since 19 September 2002 and to determine responsibility. Although Côte d’Ivoire had not yet ratified the Rome Statute, in 2003 and again in 2005 the Gbagbo government asked the International Criminal Court to conduct investigations into crimes committed during the attempted coup and subsequent rebellion. Subsequently, in February 2005, the government sent a declaration accepting the jurisdiction of the International Criminal Court.
After years of protracted negotiations, the UN organized elections in November 2010 under the terms of a 2007 Ouagadougou Political Agreement (OPA) aimed at reunifying the government-controlled south and the rebel-controlled north. This ended in a run-off between the incumbent president, and the main opposition leader and former Prime Minister, Alasanne Ouattara, both of whom claimed to have won the runoff and each separately inaugurated himself as president. Ouattara based his victory on the UN-certified results announced by the country’s Independent Electoral Commission (IEC) whilst his rival claimed victory on the basis of a decision by the country’s Constitutional Council. The international community (especially the UN and the AU) broadly rejected Gbagbo’s electoral victory and endorsed Ouattara as legally elected president. The standoff resulted in political tension, violence, numerous deaths and accusations of flagrant human rights abuses on both sides. About 3000 people were killed and 500,000 displaced. The fighting ended only after Gbagbo was captured and his forces defeated. On 30 November 2011, he was transferred to the International Criminal Court where he has been charged on four counts of crimes against humanity, murder, rape and sexual violence.
On 28 September 2011, President Quattara swore in a Truth, Reconciliation and Dialogue Commission aimed at forging unity after the deadly violence that had followed the 2010 presidential elections. The Commission of 11 members is headed by a former Prime Minister, Charles Konan Banny and includes religious leaders, regional representatives and the Chelsea footballer Didier Drogba. The Commission is modeled on the South African Truth and Reconciliation Commission but there are lots of uncertainties on exactly how the Commission will operate and whether it will be issuing amnesties and pardons. Besides this, the two-year mandate for a country that has seen so much bloodshed in the last decade is rather short especially when it is not exactly clear how the Commission will operate.
The removal of long time dictator, Mobutu Sese Seko during a campaign by Laurent Kabila in 1996 to 1997 set off a trend of violence and civil war in Democratic Republic of Congo (DRC) which has never fully ended. Although the conflict officially ended in 2002 with the signing of a peace agreement, human rights violations and international crimes have continued unabated. Two different strategies have been attempted in this vast and highly complex country: the ICC, and the truth commission. [] Both have met with very limited success.
In May 2004, President Kabila sent a blank referral to the ICC requesting them to investigate the crimes committed in the DRC since July 2002. The first ICC investigations into the atrocities that had taken place in the DRC were launched in June 2004, focusing on the eastern part of the country. On 10 February, the pre-trial chamber of the ICC issued warrants for the arrest of some rebel leaders on charges of war crimes through the enlisting and conscription of children under the age of 15 years and using them to participate actively in hostilities. The trials of some of those against whom arrest warrants were issued have been underway in the Hague since 2009 but others against whom arrests warrants have been issued remain at large in the DRC. One of the most prominent persons standing trial for war crimes is Jean-Pierre Bemba, a former rebel leader and former Vice President under the transitional government.
A truth commission, the Commission Verité et Réconciliation (CVR), was established as one of the five institutions in support of democracy encompassed in the Pretoria power-sharing agreement that was signed in December 2002. The mandate of the commission is to “reestablish truth and promote peace, justice, reparation, forgiveness and reconciliation, with the view of consolidating national unity.” The commission is also responsible for investigating political crimes and human rights violations, which took place from 30 June 1960 to the end of the transition. The commission was supposed to submit its final report before the National Assembly and the Senate by the end of the transitional period in June 2005, which was also supposed to coincide with the first democratic elections. The report was submitted two years later, in February 2007. The Commission in its recommendations, asked the international community for financial support to enhance transitional justice in the country. Given the limited involvement of victims, witnesses and perpetrators, the commission also recommended a public awareness campaign to pave the way for a future truth commission initiative.
The transitional justice efforts in the DRC have met with limited success for a number of reasons. The truth commission (CVR) process was flawed and lacked credibility. It failed to investigate the atrocities that had taken place and did not hold any public hearings to establish the truth about the conflict and mass killings perpetrated. The selection of Commissioners, whilst inclusive and representative of the political forces included too many people who were either implicated in the crimes or had ties with people implicated. It therefore chose to pursue reconciliation without finding out the truth. The UN and other international observers have been calling for a follow-up truth-seeking commission that will be more independent from those involved in the conflict.
In 1992, the Ethiopian President created the “Office of the special prosecutor: the special prosecution process of war criminals and human right.” Its mandate was to establish a record of abuses and prosecute those responsible for crimes during the preceding regimes between 1974 and 1991(the period referred to as the red terror). Prosecutions are undertaken within the ordinary judicial system. The emphasis has been less on truth telling and more on the prosecution of those accused, and the recording of what happened. The office of the special prosecutor hired more than 400 individuals, including foreign advisors in the mid 1990s.
The first report of the Special Prosecutor was released in 1994. It recommended, amongst other things, the establishment of a Public Defender Office to provide legal aid. The 1995 constitution provided for the establishment of such an office and by 2000, there were 13 public defenders at the federal level and additional regional public defenders’ offices. Meanwhile, prosecutions for crimes committed during the Mengistu Haile Mariam period have been ongoing. More than 1569 decisions have been handed down, with at least 1000 resulting in convictions. Mengistu himself was tried in abstentia and found guilty of acts of genocide and given a life sentence in 2006 but in May 2008, the Ethiopian Supreme Court changed this sentence to death. He lives in exile in Zimbabwe, which has refused to extradite him.
After the results of the 2005 elections were announced, there was violence in Addis Ababa and other parts of the country during which 193 peaceful protesters were shot and killed by the security forces. The Ethiopian Parliament established an Inquiry Commission to investigate the killings. The Commission was able to listen to the testimonies of 1300 witnesses and spent several months gathering evidence and interviewing witnesses. Parliament was adjourned for recess just a day before the Commission was to present its findings. The chairman and deputy chairman of the Commission who had been repeatedly harassed and threatened in order to force them to alter or reverse their findings fled Ethiopia. Although the original report had concluded that, the protesters were not armed and the shots fired by the security forces were not to disperse them but targeted their heads and chests, the subsequent report submitted by a newly appointed chairman cleared the security forces of any wrongdoing.
From 1966, Ghana went through four military coups and a series of civilian regimes, which were accused of human rights violations. The last military ruler, Jerry Rawlings initiated a series of changes, which saw the adoption of a new constitution and multiparty elections. After he declined to run for another term in 2000, his party lost the elections to the opposition led by John Kufour. The latter created the National Reconciliation Commission of Ghana, which was established under the National Reconciliation Act 2002, Act 611.
The mandate of the National Reconciliation Commission was to promote national reconciliation among Ghanaians by establishing an accurate historical record of human rights violations and abuses inflicted on persons by public institutions and public officers from 5 March 1957 to 6 January 1993, and recommend redress for the wrongs committed and institutional reforms. Any person could apply to have the commission investigate specific issues within its mandate. The commission set up 6 committees: legal profession; professional bodies other than legal; the press, the labor and student movements; the security services; religious bodies and chiefs. The commission met from January 2003 to October 2004 and published its final report at the end of its proceedings in April 2005.
The Commission heard testimony from 2,129 victims and from 79 alleged perpetrators. It noted in its report that the period of colonial government contributed to the legacy of human rights abuse and concluded that law enforcement institutions and the armed forces were responsible for the highest percentage of abuses. Its recommendations included a comprehensive reparation programme involving apologies, a memorial and monetary compensation. The Commission also recommended reparations for approximately 3000 victims of repression under Rawling’s rule and reforms within the prisons, the police and the military.
A 3-member reparations committee was mandated to ensure compliance with the recommendations of the commission. Although the government has paid reparations to many of the victims of human rights abuses, there have been complaints and the government itself has recognized the fact that the amounts paid were not entirely satisfactory. Some institutional reforms, especially of the judiciary has taken place but police brutality is said to be on the rise whilst proceedings of the justice system remain slow.
The first serious attempts to establish a truth commission in Kenya was made in 2003 when a task force on the establishment of a truth, justice and reconciliation commission indicated that 90% of Kenyans wanted such a commission. The plans were to establish such a commission to investigate the brutal tactics of the Kenyan African National Union (KANU) party under former President Daniel arap Moi, from Kenya’s independence in 1963 to December 2002. The Mwai Kibaki government showed little interest in doing this.
The 2007 presidential election results sparked a wave of violence resulting in the deaths of nearly 1500 and almost 300,000 were forced to flee from their homes. An AU brokered power-sharing coalition agreement provided for the establishment of several commissions of inquiry, including the Commission of Inquiry on Post-election violence, the independent Review Commission on the Elections, a National Ethnic and Race Relations Commission and the Truth, Justice and Reconciliation Commission.
In its 2008 report, the Independent Review Commission on the General Elections, also called the Kriegler Commission found that politicians on all sides incited the violence. A special tribunal to try those responsible for the violence was recommended. The Commission of Inquiry into the Post-elections Violence, or Waki Commission also issued its report in 2008. The Commission privately submitted the names of individuals implicated to the former Secretary General of the UN, Kofi Annan, who had been very active in negotiating an end to the violence.
The bill establishing the Truth, Justice and Reconciliation Commission (TJRC) was signed into law in November 2008. The TJRC was mandated to investigate and recommend appropriate actions on human rights abuses committed between 12 December 1963 and 28 February 2008 when the power-sharing deal was signed. The Commission is required, amongst other things to provide as complete a picture as is possible of the causes, nature and extent of the post-election violence. It is also required to cover cases of politically motivated violence, assassinations, displacements and major economic crimes such as grand corruption and irregular acquisition of land. The Commission is empowered to recommend policies with regard to reparations for victims, recommend prosecutions, and the creation of institutions conducive to a stable and fair society. It is composed of seven commissioners, four nationals and three foreigners nominated by the Panel of African Eminent Personalities, the group who helped to negotiate the power-sharing agreement.
The TJRC process is supposed to complement prosecution of those responsible for human rights violations by an international tribunal in Kenya or the ICC. However, in 2009, the Kenyan Parliament rejected a constitutional amendment bill for a special tribunal for post-election violence. Since March 2010, the ICC has opened an investigation into the post-election violence and has summoned six prominent Kenyans, including a deputy prime minister, an ex minister and an ex police chief to appear before it. There has been controversy because the Kenyan government is opposed to this. More generally, the TJRC law has been criticised, especially by civil society groups because it allows for amnesties for human rights violations excludes victims from the process and fails to offer sufficient protection for witnesses. In its progress report submitted to Parliament towards the end of 2011, the TJRC pointed out that it had lost a considerable amount of time in getting started due to the controversy surrounding the suitability of its chairperson, who ultimately had to be replaced and serious financial and resource constraints that resulted in recurrent delays and limitations on its operations. It therefore requested Parliament to extend its life span beyond the November 2011 deadline. Whether or not this request is acceded to, it is clear that it will not complete its task by this deadline.
The Liberian Truth and Reconciliation Commission was established against a background of civil war launched by Charles Taylor in which approximately 200,000 people were killed and more than one million displaced. The Commission was inaugurated on 20 February 2006 and was supposed to meet for two years with allowance for additional 3 months extensions up to one year. This was provided for in Part VI, article XIII of the Accra Peace Accord signed on 18 August 2003.
The Truth and Reconciliation Commission Act 2005, on which the commission is based states that it has a mandate to promote national peace, security, unity and reconciliation by:
i) investigating gross human rights violations and violations of international humanitarian law as well as abuses that occurred, including massacres, sexual violations, murder, extra-judicial killings and economic crimes, such as the exploitation of natural or public resources to perpetuate armed conflicts, during the period January 1979 to 14 October 2003 although it could also explore the period before 1979;
ii) providing a forum to address impunity;
iii) establishing an independent, accurate and objective record of the past, and paying particular attention to gender based violence; and
iv) compiling a report with findings and recommendations.
After many delays, largely caused by financial and logistical problems, the commission only started its public hearings in early 2008. Hearings fell into three categories: individual hearings based on statements or interviews; thematic hearings that looked at the trends and causes of the conflict; and institutional hearings, which examined how national institutions (such as the judiciary and education system) have been affected by the conflict, with a view to bringing about reforms. One of the unique features of the Liberian Commission was that it involved the active participation of the Liberian Diaspora. Diaspora hearings and outreach activities of the Commission took place in 11 US cities, in Ghana, Nigeria and Sierra Leone, all places where a significant number of Liberian refugees reside.
The final report of the Commission was released on 19 December 2008 although on 30 June 2009, the Commission released another report, which it called the final and consolidated and unedited report, which was submitted to Parliament. According to its findings, the major and root causes of the Liberian conflict was attributed to several factors such as poverty, greed, corruption, limited access to education, economic, social, civil and political inequalities, identity conflict, the lack of reliable and appropriate mechanisms for the settlement of disputes and the chasm between settler Liberian and indigenous Liberian. All factions to the civil conflict were said to have been responsible for abuses, including war crimes and crimes against humanity. The massive wave of gross violations and atrocities assumed a systematic pattern and external actors in Africa, North America and Europe were found to have participated, supported, aided, abetted, conspired and instigated the violence for diverse selfish reasons.
The Liberian Commission made a number of important recommendations, some of which were quite controversial. It advised that an Extraordinary Criminal Tribunal for Liberia in which certain named individuals, corporations and institutions would be prosecuted should be established. A list of individuals was recommended to be barred from holding public office for thirty years. The names on this list included that of the serving president, Ellen Johnson Sirleaf. In January 2011, the Liberian Supreme Court in the case of Williams v Tah, held that the recommendations banning a number of individuals from holding public office for thirty years was unconstitutional.[] The Commission also recommended that a Palava Hut process based on traditional dispute resolution mechanisms should be used as a complementary tool for justice and reconciliation. The Government was also asked to assume responsibility for compensating those individuals and communities victimized by years of instability and war, especially women and children. Institutional reforms to promote good governance and human rights were recommended as a means of preventing the recurrence of abuses.
The Act of Parliament establishing the Commission required that the president must report to Parliament on the implementation of the recommendations three months after the delivery of the report and thereafter every three months. After discussing the report, the Liberian Parliament on 28 August 2009 announced that it will consult constituents for about a year before deciding on whether or not to implement the recommendations. Probably due to this, there has been little progress in implementing the Commission’s recommendations especially in ensuring justice for victims of war crimes committed during the years of armed conflict.
On 1 February 2009, the Mauritian Truth and Justice Commission became operational. The main object of the Commission is to conduct inquiries into slavery and indentured labour in Mauritius during the colonial period and for that purpose, it may gather information and receive evidence from any person. The Commission has the responsibility to determine appropriate measures to be extended to descendants of slaves and indentured labourers; enquire into a complaint, other than a frivolous and vexatious complaint, made by any person aggrieved by a dispossession or prescription of any land in which he claims he had an interest; and prepare a comprehensive report of its activities and findings, based on factual and objective information and evidence received by it and submit the report to the President of the Republic.
What makes the Mauritian Commission different from all the other Commissions is the huge time lapse between slavery and its abolition and the various other activities that took place under the different colonial powers. It will therefore be investigating activities which took place centuries ago whereas all the other commissions have usually been limited to investigating more recent events that took place, in most cases, within the last 30 years.
Morocco gained independence in February 1956 under King Mohammed V, who because of his fear of the opposition taking over adopted very repressive tactics to stay in power. These repressive practices were continued by his successor King Hussein II when he took over in 1961. However, in 1990, he created the National Consultative Council on Human Rights, which began releasing political detainees in response to public protests. When the liberal minded King Mohammed VI took over, he responded to mounting public pressure by establishing the Independent Commission of Arbitration to deal with the compensation of victims of past abuses. When many victims and their families continued to protest, the King on 7 January 2004 established the Equity and Reconciliation Commission. It operated between 7 January 2004 and 30 November 2005 and its mandate was to:
i) investigate and document grave abuses (forced disappearances and arbitrary detention) that occurred from independence in 1956 until 1999, notably during the 38-year reign of King Hussein II from 1961-1999.
ii) decide on reparation packages for victims and survivors:
iii) propose other remedies for victims, and safeguards against a recurrence of abuses;
iv) provide a report by April 2005 that provides both a general historical record and specific information for families of victims.
This was the first truth commission in the Arab world and is also unusual in that it is the first one to be chaired by the torture victim of the former regime. In fact, five of the sixteen commissioners were political prisoners. The commission was given no powers to name individuals responsible for abuses or to compel testimony or the production of documents. Nevertheless, it investigated 16,861 cases and awarded compensation to 9,280 of these. It firmly established the state’s role in perpetrating abuses and demanded a public apology. It underscored the importance of constitutional reforms, particularly the separation of powers and the establishment of an independent judiciary. The final report was presented to the King in December 2005.
The report did not name the individuals responsible for abuses and in fact participants in the hearings had to sign an agreement not to identify individuals attributed with responsibility. The report recommended inter alia, the diminution of executive powers, the strengthening of the legislature and judiciary, reforms in the security sector, changes in criminal law and policies and the ratification of the statute of the ICC. More than 16,000 requests for reparations were reviewed and 9,779 victims were recommended to receive financial, medical and psychological assistance.
Although the King publicly endorsed the recommendations and asked the pre-existing Consultative Council on Human Rights to pursue follow-up action, not all the recommendations have been implemented. For instance, the ICC Statute has not been ratified. It was only after demonstrations in 2011 that some attempts were made to limit the powers of the executive and provide for some degree of separation of powers. However, by 2007, about 23, 676 people had received compensation for human rights violations committed during the reign of King Hussein. The impact of this is diminished by the fact that no trials have taken place and many of the alleged perpetrators continue to hold high government posts. Generally, both the reports and the process of reparations have been severely criticized by human rights activists and victims as having been limited in their delivery of truth and accountability. Worse still, the final report of the Commission was silent on the Western Sahara, yet this is the area hardest hit by the repression.
From independence in 1960, Nigeria has been destabilized by ethnic, religious and social tensions that have frequently led to violence and unrest. The massacre of Igbos in northern Nigeria in 1966 led to a civil war in which the Igbos wanted to secede. Although the civil war ended in 1970, a series of military coups from 1975 led to a long period of military dictatorship. The last of these military dictators, Sani Abacha who had seized power following a brief period of civilian rule presided over a very repressive regime during which numerous human rights violations took place. When Abacha died suddenly, in 1998, elections were held and this brought to power Olusegun Obasanjo, a former military ruler. On coming to power in 1999, he appointed a Human Rights Violations Investigation Commission, known as the Oputa Panel, to investigate human rights abuses that had taken place in the country.
The precise mandate of the Oputa Panel was to establish the causes, nature, and extent of human rights violations, in particular the assassinations and attempted killings between 15 January 1966 and 28 May 1999, to identify perpetrators (individuals and institutions), determine the role of the state in the violations, and to recommend means to pursue justice and prevent future abuses. The report of the commission was handed to Obasanjo in June 2002 but was never officially. The public only became aware of its contents when a US-based NGO, Nigerian Democratic Movement and Nigeria-based Civil Society Forum published an unofficial volume of the full report. [] The commission came to the conclusion that the Nigerian military had been responsible for gross human rights violations and that besides the military elite, powerful and rich civilians had collaborated with the military to prepare the numerous coups.
The commission recommended inter alia serious efforts to combat corruption, a drastic reduction of the size of the armed forces, reform of the military intelligence, police and academic institutions. It also recommended that victims of human rights abuses should be given compensation and a broad consultation of civil society about Nigeria’s constitutional structure, improved human rights education, a moratorium on the creation of further states, more local governments to avoid corruption and the fragmentation of the political system.
Because of financial constraints, the commission was not able to undertake investigations or corroboration into cases outside the questioning that took place at its hearings. Besides this, the commission’s selection of 150 cases that it dealt with was controversial. Another weakness of the Nigerian process was that it operated in an adversarial rather than victim-centered manner. At the end of the day, the impact of the work of the commission was very limited because its recommendations were not implemented. It is also worth mentioning here that at the end of 2007, the Governor of Rivers state announced that a truth commission local to the state will be established and charged with the responsibility for unearthing the remote and immediate causes of cult clashes in the state and identifying perpetrators and victims with a view to prosecutions and compensation.
There have been five different transitional justice processes that have been undertaken in Rwanda viz, a National Unity and Reconciliation Commission, an International Panel of Eminent Personalities to investigate the 1994 genocide, Gacaca courts, the International Criminal Tribunal for Rwanda and the International Commission of Investigation on Human Rights Violations in Rwanda.
The National Unity and Reconciliation Commission was provided for under the 1993 Arusha Peace Accords and was actually established by Law No. 03/99 of 12 March 1999. The broad objective of the commission is to sensitize the Rwandan people about reconciliation and unity as well as foster tolerance. It operates through three main programs, civil education, conflict mediation and community initiatives. The first national conference on unity and reconciliation was held between 18-20 October 2000, and a second one between 26-28 October 2002, and the third in December 2006. The commission now works as a permanent institution provided for under the constitution. It is required to publish annual reports giving details of its various activities.
The Organisation of African Unity set up the “International panel of eminent personalities to investigate the 1994 genocide in Rwanda,” in late 1998. It was charged with the responsibility of investigating the history of Rwanda and the circumstances leading up to the 1994 genocide and operated between January 1999 and June 2000. The panel published a report entitled, “Rwanda: The preventable genocide.”[]
The Gacaca courts were established by the Gacaca law of March 2001. The mandate of these courts was:
i) to reveal the truth;
ii) to speed up trials;
iii) to put an end to the culture of impunity;
iv) to reconcile the people of Rwanda;
v) to revive traditional forms of justice;
vi) to demonstrate the ability of local communities to resolve their own problems; and
vii) to solve problems caused by the genocide.
These courts are responsible for holding trials for crimes of genocide and crimes against humanity committed between 1 October 1990 and 31 December 1994. The pilot phase started on 19 June 2002 and full implementation started on 24 June 2002. The Gacaca law defines different categories of crimes: Category 1 – those who planned or directed genocide (numbering about 2,133; and will be judged by the ordinary courts or the International criminal court); Category 2- those who committed crimes with the intention to kill; or whose actions led to death; Category 3 – those who committed crimes which led to serious assaults against a person; Category 4 – offences against property. The Gacaca courts are responsible for crimes, which fall into categories 2-4. The system is closely linked to the national prosecutor’s office. In 1999, there were over 120,000 people held in prisons and detention centers on charges of genocide crimes. Only 6,000 cases had been judged between 1996 and 2002. The Gacaca system was created to address this problem. The expectation was that the process would be completed by the end of December 2007 but would continue should more time be necessary. By the end of 2007, approximately one million people accused of involvement in the 1994 genocide had appeared before these courts. About 800,000 of these have been tried. Whilst many courts have now finished their trials, a few still continue.
The International Criminal Tribunal for Rwanda was established by UN Security Council Resolution 955 of 8 November 1994 and charged with responsibility for the prosecution of persons responsible for genocide and other serious violations of international humanitarian law committed in Rwanda between 1 January 1994 and 31 December 1994. It was also given the power to prosecute Rwandan citizens responsible for genocide and other such violations of international law committed in the territory of neighboring states during the same period. It was made up of three trials and one appeals chamber composed of 16 judges elected by the UN General Assembly. The tribunal was expected to complete its mandate by 2008. As of December 2007, 35 cases had been completed while the trials concerning 23 were on going. Two cases had been transferred to France and 30 cases transferred to the Rwandan national courts. A completion strategy prepared in May 2007 predicts the completion of trials on schedule, by the end of 2008 but notes that the workload of the Appeals Chamber will still be heavy. Security Council resolution 1503 of 2003 states that all the work of the tribunal must be completed by 2010. Genocide trials are also taking place within the Rwandan national court system as well as in other countries. About 2500 trials have taken place in the national court system. The sentencing of approximately 900 perpetrators by the national courts to community service has been denounced as insignificant and humiliating to genocide survivors by critics. In a letter dated 16 November 2011 the President of the tribunal, judge Khalida Rachid Khan, updated the Security Council on the completion strategy outlined in resolution 1534 of 2004. According to this report, as at 4 November 2011, the tribunal had completed the work at the trial level with respect to 76 of the 92 accused, which included two referrals to national jurisdictions, two withdrawn indictments, and two indictees who died prior to or in the course of the trial. It also noted that the tribunal had delivered 50 first-instance judgments involving 70 accused, nine of whom pleaded guilty. Appellate proceedings had been concluded in respect of 37 persons and nine fugitives remained at large.
Finally, note should also be taken of the International Commission of Investigation on Human Rights violations in Rwanda since 1 October 1990, which was established by a federation of four international NGOs known as the Liaison committee of association in defense of human rights in Rwanda (CLADHO). It was mandated to investigate human rights violations between October 1990 and the time of the commission, 1993. After three months of investigation, it published a final report, which documents 2,000 killings and unspecified number of attacks on civilians as well as kidnappings.
Togo has been rocked by political violence, especially in the presidential elections of April 2005 after the death of dictator General Gnassingbe Eyadema who had ruled the country for 38 years. After consultations that took place from May to July 2008, President Faure Gnassingbe set up a Truth, Justice and Reconciliation Commission on 28 May 2009 to investigate political violence. The overall objective of the commission is to address a chronic pattern of violence in the country that dates to 1958. It is expected to hear evidence from victims and witnesses of some of the heinous crimes committed since independence. The commission was required to complete its work within 18 months but could request for a six months extension.
From September 2009 to June 2010, the commission did almost nothing. In fact, throughout 2010 it organized 24 meetings throughout the country calling for peace during the 2010 presidential elections. It therefore spent almost the entire time allocated to it to deal with preventing election violence in future elections and hardly had any time to probe into the causes of past violence.
There have been two processes in Sierra Leone: a truth commission and a special court.
The special court was established in January 2002 and began trials on 3 June 2004. It was supposed to end by 2006 but this was extended to December 2009. This court was established to try those who have the greatest responsibility for crimes against humanity, war crimes and other serious violations of international law committed during the 1991-1999 conflict. Thirteen people have been indicted, with 9 of them in custody. The trial of Charles Taylor, the former president of Liberia, resumed in The Hague on 7 January 2008 after a 6-month delay following Taylor’s decision to fire his legal team. The trial was expected to last 18 months. Taylor has been indicted on 11 counts including charges of terrorism, unlawful killings, sexual and physical violence and the enlisting of child soldiers. At the end of 2010, a completion strategy for the trial of Charles Taylor, which is the last trial by this court was supposed to come to an end by latest February. Due to delays attributed to Charles Taylor’s legal team, it is likely that the trial may go beyond 2012 especially if there is an appeal against the final verdict.
The Sierra Leone truth commission, established under the Truth and Reconciliation Commission Act 2000, was in accordance with the Lomé Peace Accord. Its mandate is to establish a historical record of violations and human rights abuses from 7 July 1991 to 1999; address impunity; respond to the needs of victims; promote healing and reconciliation; and prevent a repetition of such events in Sierra Leone. It operated between 5 July 2002 and October 4004 and was composed of seven commissioners, four citizens of Sierra Leone and three foreigners. Its 5000-page report contains testimonies, history of the conflict, human rights violations (with statistical apportioning of blame and names of responsible persons) external factors, recommendations etc. The commission had found that the central cause of the war in Sierra Leone was corruption and an overwhelming control of the executive. Colonialism and the subversion of traditional systems also had an effect. Amongst its recommendations was the need to fight against corruption, the creation of a new bill of rights developed in a participatory constitutional process, the independence of the judiciary, strengthening the role of parliament and stricter control of the security forces.
The National Commission for Social Action (NaCSA) has been designated by the government to implement the recommendations of the commission, particularly with respect to reparations. However, many NGOs have criticized the government for the long delays in the implementation of the commission’s recommendation, which not only includes a reparations programme, but also an official apology to the victims of the violence. By the end of 2007, the government had engaged in serious discussions with civil society organizations to increase public awareness about the commission’s report and to examine ways of implementing its recommendations. A total of 29, 733 victims were registered. As of early 2010, amputees, war wounded and victims of sexual violence received a USD 100 interim payment. Other reparative measures such as educational support and health care have also been implemented.
Perhaps the best known and third truth commission to be established in Africa is the South African Truth and Reconciliation Commission established under an Act of Parliament in 1994 to investigate gross human rights violations (abductions, killings, torture, and severe ill treatment) committed by the state and liberation movements between 21 March 1960 and 10 May 1994. The Act gave the commission the power to grant individualized amnesty, search premises and seize evidence, subpoena witnesses and run a sophisticated witness protection program. During the period of its operation, December 1995 to June 2002, it had three committees: the human rights violations committee, which collected statements and recorded evidence; the amnesty committee, which processed individual amnesty applications and; the reparations and rehabilitation committee, which designed and submitted recommendations for reparation program. The commission took the testimony of approximately 21, 000 people, more than 2000 persons appeared at public hearings and it considered 7,112 amnesty applications. Amnesty was granted in 849 cases and refused in 5,392 cases, whilst other applications were withdrawn. In 2006, what is known as a TRC unit was established to oversee the implementation of the commission’s recommendations, including the issues around reparations and exhumations. The payment of reparations began only in 2003; five years after the commission submitted its report and the amount paid to victims fell far short of what the commission had recommended. A missing person’s task team has also been established and is responsible for exhumations, reburials and further investigations into disappearances.
The South African truth commission was the first on the continent to explicitly include the objective of reconciliation and amongst its other innovations was the fact that it allowed a broad public participation in the formulation of the mandate of the commission as well as in the selection of the commissioners. It had numerous regional offices, employed more than 300 persons and had an annual budget of about USD 18 million. The commission also used a wide array of investigative tools such as search, seizure and subpoena powers and even had the power to include the names of perpetrators in its final report.
It is also necessary to mention here two other processes that were undertaken just before the end of apartheid in 1994. The first of these was the Skweyiya commission or “Commission of enquiry into complaints by former African National Congress (ANC) prisoners and detainees.” Initiated in 1991 by a group of 31 former ANC detainees, it was formally established in 1992 by then ANC president, Nelson Mandela and given the powers to investigate the complaints of these detainees occurring from 1979 to 1991 and to recommend further actions. The final report documented 29 cases of disappearance but did not name the responsible individuals. The report recommended the appointment of another commission to investigate disappearances and other abuses in an unbiased setting. This second commission, named the Motsuenyane commission or Commission of enquiry into certain allegations of cruelty and human rights abuse against ANC prisoners and detainees by ANC members was established in 1993 and operated for seven months. Unlike the previous commission that was made up of two ANC and one independent commissioner, this commission was made up of three independent commissioners. The final report documented 32 cases of torture and other abuse in ANC detention camps and named those responsible. The report was made public and Nelson Mandela accepted collective responsibility on behalf of the ANC leadership.
Three transitional justice processes have been used in an attempt to address the numerous political problems that Sudan has had since it became independent: a specialized attorney office for crimes against humanity, a special criminal court on the events in Darfur, and the ICC.
The specialized attorney office for crimes against humanity was created and supposed to have started operation in September 2005. This specialized prosecution office has jurisdiction in relation to crimes against humanity committed anywhere in the country and is based in Khartoum. However, very little is known about this office and about the cases that have been handled by it.
The special criminal court on events in Darfur was also established by the Sudanese authorities by a decree that was signed and published just one day after the ICC opened its investigation into Sudan. This court is supposed to deal with:
i) crimes as constituted within the Sudanese and other penal codes;
ii) charges submitted by committees set up to look at the Sudanese government’s commission of inquiry; and
iii) any charges as determined by the Chief Justice.
Its jurisdiction was later expanded to include any violations of international humanitarian law. This court has three seats, one each in the capitals of South, North and West Darfur. By the end of 2006, only 13 cases of low-ranking officials with relatively minor charges such as theft had been brought before these courts. Created just a day after the ICC investigations began, it is clearly an attempt to undermine the work of the ICC, which under the Rome Statute cannot conduct trials capable of being undertaken by national courts.
The UN decided in March 2005 to send a referral to the ICC Prosecutor to investigate and prosecute those most responsible for violations committed in the Sudan since 1 July 2002. The investigation was opened in June 2006. The prosecutor began by looking at the Report of the UN commission of inquiry that had been set up in 2004 to investigate allegations of violations of international humanitarian law and human rights law in Darfur by all the parties to determine whether or not acts of genocide had occurred and to identify the perpetrators of such violations with a view to ensuring that those responsible are held accountable. In April 2007, the ICC issued arrest warrants for a former Sudanese Minister of State for the Interior and the alleged leader of the Janjaweed militia. Both were indicted on 55 charges of war crimes and crimes against humanity including murder, rape and torture. The Sudanese government has refused to enforce the arrest warrants. In Darfur itself, few know or care about the actions of the ICC.
Uganda is another country, which has had a turbulent and troubled history since independence in the early 1960s. It is therefore no surprise that it established the first truth commission in Africa and the third one globally, after those of Bolivia and Argentina. So far, four transitional processes have been tried at one point or another.
The most recent is the ICC. In December 2003, President Museveni asked the ICC to investigate war crimes in the northern part of the country, particularly with respect to the atrocities committed by the Lord’s Resistance Army (LRA). Formal investigations against Joseph Kony and his commanders of the LRA by the ICC were started on 29 July 2000 and the first warrant of arrest against Kony and four others was issued on 8 July 2005. Although the ICC process was initiated by the Ugandan government, they appear to have changed their mind because the rebels have insisted that they will not sign a peace deal whilst the arrest warrants are still in place. The exact situation remains fluid, however, President Museveni has asked the ICC to maintain the charges against the LRA until a peace agreement is reached, but has stated that once an agreement is signed, the government will intervene to keep the commanders of the LRA out of the reach of the ICC.
Earlier, in 2000, the Amnesty Act established the Uganda amnesty commission as a means of promoting reconciliation, peace, security and tranquility in the country. The amnesty applied to actions dating to 26 January 1986. The commission was to be responsible for:
i) sensitizing the public about the Amnesty law;
ii) promoting dialogue and reconciliation;
iii) demobilizing and processing amnesty applications;
iv) re-insertion support, including providing resettlement package reporters; and
v) longer-term social and economic reintegration.
As of June 2005, although more than 15,300 combatants and abductees had received amnesty, only about 4000 had received the resettlement package, which includes a lump sum of US $ 150, a mattress, blanket, hoe and some seeds due to a shortage of funds. The World Bank and the US government have donated funds to deal with certain aspects of the process.
In 1986, shortly after Museveni came to power, he established a commission of inquiry into violations of human rights and gave it a broad mandate to investigate amongst other things, arbitrary arrests and detention, torture and killings that had taken place between December 1962 and January 1986. The commission was asked to make recommendations to prevent the recurrence of such abuses. In its report submitted in October 1994, the commission documented evidence of widespread arbitrary arrests, detention and imprisonments and recommended the repeal of laws allowing for detention without trial. The commission faced continuous financial problems and throughout its work, it was confronted with lack of political support. As such, by the time it presented its report, nine years after it was established, the public had already lost interest in its work. Nevertheless, it was responsible for the creation of a national human rights commission in Uganda.
One of the few commissions to be established outside a period of transition and the first commission that was actually established in Uganda in 1974 was the commission of inquiry into the disappearance of people in Uganda, created by President Idi Dada Amin, ironically one of the most notorious dictators on the continent responsible for the disappearance of many of his compatriots. About 308 cases of disappearance were presented to the commission and the recommendations that it made in its final report calling for police and security reforms as well as training for law enforcement about civilian rights were completely ignored and Idi Amin was responsible for far more disappearances than had been catalogued in the report.
In 1985, President Robert Mugabe established a commission of inquiry to investigate the Matabeleland disturbances (also known as the Chihambakwe commission of inquiry). It had to investigate the government’s repression of “dissidents” in the Matabeleland region of the country in 1983. The final report has been kept confidential on the grounds that its publication could spark violence over past wrongs. Two human rights organizations, the Legal Resources Foundation and the Catholic Commission for Justice and Peace produced a report entitled, “Breaking the Silence, Building True Peace” in 1997. This unofficial report produced independently of the Chihambakwa commission of inquiry was an attempt by civil society to break the silence from the state. Evidence was collected from a variety of sources, such as statements from victims, records from missionaries, journalists and lawyers, interviews and documents from NGOs. It concluded that more than 20, 000 civilians had been killed by the security forces during the operation carried out by the security forces and there was evidence of mass graves and mineshafts where bodies had been deposited. The unofficial report recommended a national reconciliation process, a proper burial for the victims and compensation packages for those affected. Although the army brigade associated with the Matabeleland massacres were assigned to a different area, the government never endorsed the report’s findings or recommendations. In 1988, President Mugabe granted a general amnesty to members of the security forces and members of the ruling party imprisoned for human rights abuses in Matabeleland.
It is now clear that a truth commission or similar body is usually created at a critical point in a political transition, either to demonstrate or underscore a country or regime’s break with the past, as well as to signal a commitment to constitutional democracy, respect for the rule of law and good governance. Establishing a full, official accounting of the past is increasingly seen as an important element towards a successful democratic transition. As noted earlier, more than half of the 55 countries in Africa have created truth commissions and a majority of these have been in the 1990s. Since the beginning of the Arab uprising that has seen the departure of some of Africa’s hardened dictators who had successfully resisted the 1990 third wave of democratization, there are signs that many of these countries will want to establish truth commissions to better prepare for the future by addressing past wrongs. If we consider that one of the fundamental objectives of truth commissions is to allow a society to learn from its past in order to prevent a repetition of the violence in the future, it would seem that more still needs to be done to make these commissions more effective in Africa. Although a comprehensive and critical account is yet to be written about the African experience, a number of limitations are evident from the above survey.
The most serious limitations on the ability of truth commissions to carry out their functions are their terms of reference or mandate. The mandate conferred on truth commissions usually circumscribe the ability of the commission to find the truth and thus provide the basis of reconciliation and sustainable peace. Where the investigative reach of the commission is narrowly defined so as to exclude certain types of crimes from its jurisdiction, as in Algeria, Morocco and Chad, or where the geographic scope is narrow and unreasonable timelines are provided, it is difficult for the commission to operate effectively. Because of the limited powers that many of these commissions have and the tight timelines within which they operate, the full truth hardly ever comes out, inadequate attention is paid to the question of compensating victims of the violence and this in most instances diminishes the prospects for national reconciliation and peace.
A truth commission needs to be composed of qualified and well-trained, experienced and respected persons from diverse backgrounds that sufficiently reflect the different interests in society. In many of the commissions examined above, many of the commissioners have simply been appointed by the government without consultation and this often gives rise to a feeling that they are there to serve the government’s interests and this diminishes the credibility of the commission.
The nature of the document creating the commission also has an impact on the commission’s work. A commission, such as the South African commission that was created after elaborate and broad consultations and consensus in an open and transparent and democratic process has been more effective than those commissions that were created by presidential decree. In far too many cases, the commissions created by presidential decrees are perceived as either politically motivated to divert attention from the real issues, or to persecute opponents of the regime. A clear example is the Sudanese special criminal court on events in Darfur created a day after the ICC started its investigations.
A major divisive issue has been the question of amnesty. The quasi-judicial powers given to the South African commission to grant amnesty to individual perpetrators on specified conditions was unprecedented and controversial. It nevertheless opened the way for some reasonable degree of accountability. In Nigeria, where nothing is said about amnesty, many of the perpetrators of violent crimes were afraid to come forward, or if they came forward, were usually reluctant to tell the whole truth because of the fear that their confessions may be used against them in subsequent legal proceedings. In Sierra Leone, the relationship between the truth commission and the special court has brought to focus the different roles of truth commissions and international tribunals and the potential pitfalls that arise when they operate simultaneously. The Lomé Peace Accord granted the rebels amnesty, but these amnesty provisions were abandoned when the rebels breached the agreements and the special court was created to deal with certain crimes. The relationship between the truth commission and the special court, generally cordial, faltered when the special court refused to permit the commission to hold public hearings with the detainees held in its custody. As was noted earlier, the Supreme Court in Liberia has prohibited any testimony about Charles Taylor being heard by the country’s truth commission. This creates difficult problems for the future between the truth commissions and special or ordinary courts, which definitely have role to play in the transitional process.
Other challenges have included the fact that in many of these transitional countries, such as Sierra Leone, Liberia, the DR Congo, there have been delays in setting up truth commissions due mainly to lack of funds to hire the necessary staff and deal with other logistical problems. Funds are particularly needed to compensate victims of violence, but not to bribe them as seems to be the case in some countries like Algeria and Morocco. There have been many debates about the role African indigenous dispute settlement methods can play. The recent attempts to use some of these methods in Uganda and Rwanda have been controversial. It is difficult to see how the sentencing of a person who has committed serious crimes such as murder, rape and assault to community service by a Gacaca court can help heal the wounds of conflict. In many countries, the commissions’ reports are not given the publicity they deserve and in some cases are kept confidential. Perhaps the most serious problem has been the failure to implement the recommendations, which are crucial to preventing a recurrence of violence. Why invest so much in terms of time and money in a process and ignore its outcome?
Although truth commissions and other measures of transitional justice can not be bought off the peg but must of necessity take account of each country’s particular historical, geographical, social and economic circumstances, it is undeniable that after decades of political and economic turbulence, there is need for all African countries to carefully reflect on where they have come from order to be better prepared for the future. The countries that have done this reasonably well, such as South Africa, are now steadily consolidating their democracy and are better prepared to weather the storms of global economic instability. The majority of African countries, who feel that cosmetic constitutional changes are the best responses to the third wave of democratization, are still wallowing in the mud of political instability.
It cannot be denied that truth commissions today provide the most viable, flexible and credible mechanism for laying down the foundations of a democratic society in Africa as well as resolving the numerous open or latent conflicts. They provide an avenue for taming, balancing and recasting the anger and desire for revenge in a positive direction that can provide progress, development, peace and prosperity. A number of changes need to be made to make the process worth the time and money expended on it. First, the creation of a truth commission should result from a process of broad consultation of all segments of society and preferably be introduced by way of legislation rather than executive order. Second, the mandate to the commission should specify that the functions of the commission should be to make broad findings about the antecedents, causes, patterns, trends, perpetrators’ motives and impact on victims for the period of violence being studied. Third, the goals of the commission should be primarily to identify institutions, parties, structures and ideologies that permitted or committed gross human rights violations. Only secondarily should a commission identify particular individuals where there is evidence to the commission of what amounts to crimes against humanity. Fourth, in order to ensure relatively lasting peace, amnesty should not be cheapened, for example, by it being granted upon request with no conditions. Some form of compensation should be given to victims, especially where provision is made for conditional amnesty. Finally, although human rights violations are also violations of law, the objective of the truth commission process must be to achieve restorative and not legal justice. The composition of the commission should reflect this goal and include professional staff drawn from a variety of intellectual disciplines such as the social sciences and law, with emphasis on qualitative and quantitative rigor. Ultimately, the future of Africa’s fledgling transition will depend to a large extent on how well it has learnt from it past errors and taken correct steps to prevent a repeat of these errors. There is no denying that many of the political problems on the continent have been caused by the failure to adequately deal with the problems of the past, which continues to haunt the present generation.
These web sites provide a comprehensive collection of internet sources, bibliographies, truth commission reports and other official documents.
[] See Priscilla B. Hayner, “Fifteen truth commissions – 1974-1994: A comparative study,” in Neil J. Kritz (ed.), Transitional justice. How emerging democracies reckon with former regimes, Vol. 1 United States Peace Press, Washington D.C. (1995), pp.225-261. Also see, Mark Freeman, Truth Commissions and Procedural Fairness, Cambridge University Press, Cambridge (2006) who defines a truth commission as an “ad hoc, autonomous, and victim-centered commission of inquiry set up in and authorized by a state for the primary purposes of (i) investigating and reporting on the principal causes and consequences of broad and relatively recent patterns of severe violence or repression that occurred in the state during determinate periods of authoritarian rule or armed conflict, and (ii) making recommendations for their redress and future prevention.”
[] For an elaborate discussion of this, see “Justice in perspective – Africa” http://www.justiceinperspective.org.za/index.php?option=com_content&task=section
[] It is worthwhile pointing out here that there was also the so-called sovereign national conference that started on 7 August 1991, was temporarily closed in January 2002 and then worked uninterrupted from April to December 2002. It was supposed to chart a way to manage the country’s transition to democracy but like similar conferences in Benin, Togo and Gabon, it failed.
[] See, “Liberian Supreme Court Squashes Truth and Reconciliation Commission Ban on Politicians,” NetNewsPublisher, January 24, 2011 http://www.netnewspublisher.com/liberian-supreme-court-squashes-truth-and-reconciliation-commission-ban-on-politicians/ .
[] See, http://www.kwenu.com/record/2005/ndm oputa.htm ; and http://www.nigerianmuse.com/nigeriawatch/oputa