Transitional Justice in Africa: The Experience with Truth Commissions
By Charles Manga Fombad
Charles Manga Fombad is a Professor of law in the Department of Law, University of Botswana. 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 4 books and has published more than 45 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 is presently the founding editor-in-Chief of the “University of Botswana Law Journal” and Consultant Editor of the “BIAC Journal of Business, Management and Training.” Professor Fombad teaches several courses at the undergraduate and postgraduate level. His research interests are in legal history, torts, media law, constitutional law, and international law.
Published May/June 2008
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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:
- halt ongoing human rights abuses;
- investigate past crimes;
- identify those responsible for human rights violations;
- impose sanctions for some of those responsible for serious human rights violations;
- provide reparations to victims;
- prevent future abuses;
- preserve and enhance sustainable peace; and
- promote individual and national reconciliation.
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.
Only 18 of Africa’s 54 countries have established a truth commission in one form or another to help it chart the way forward. The most significant of these was 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. 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. 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. This 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 was also required to consider the establishment of a Special Chamber within Burundi’s court system to prosecute those bearing the greatest responsibility for crimes against humanity and war crimes. 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. Final arrangements will be made in a General Framework Agreement to be signed between the government and the UN.
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 “Minister of Justice’s commission of inquiry into the crimes committed by the Hissène Habre regime,” was established by President Idriss Déby for ten months in 1990 to 1991. 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 Habre government of an estimated 40,000 political killings. After several years of futile attempts to get Habre, who has been living in exile in Senegal, the UN finally brought pressure to bear on the Senegalese government in 2007 and the latter undertook to bring Habre to trial before a Senegalese criminal court and not a special tribunal that the international community had advocated for. Even then, the failure to commence the proceedings has caused a serious outcry, especially from victims of Habre’s repressive rule.
Two mechanisms have been tried in Côte d’Ivoire: a reliance on the ICC and the establishment of an Independent commission of inquiry. Although it had not ratified the Rome Statute of the ICC, in January 2005, the government requested the ICC to conduct investigations to determine whether crimes committed in the country since September 2002 came under the court’s jurisdiction. As part of the national reconciliation process, a new law made in April 2007 grants amnesty for crimes committed since 2000, but excludes serious crimes such as war crimes and crimes against humanity.
In April 2004, the UN Acting Commissioner for Human Rights, Bertrand Ramacharan was appointed to establish the facts and responsibilities on alleged atrocities which were committed on 25 and 26 March 2004 in Abidjan. In a report submitted to the Security Council, it recommended prosecutions, reforms and the establishment of a truth commission. The Security Council, acting on one of the recommendations, asked the Secretary General to establish an international commission of inquiry, and this was put in place in July 2004 and operated for 3 months. The country is still in the throes of civil war and numerous efforts are being made to persuade the different factions to sign a comprehensive peace agreement.
Two different strategies have been attempted in the Democratic Republic of Congo (DRC): the ICC, and the truth commission.
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. Further investigations and other proceedings were put on hold because of the fragile situation after the 2006 first democratic elections but the process is expected to regain momentum as the ICC has been carefully gathering information on crimes committed on both sides of the political divide in the country.
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. There have been many critics of the work of this commission and there are now calls for a second truth commission to be established to investigate thoroughly what happened during the elections.
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 prosecutions are ongoing and the statistics for 2003 show that approximately 6,426 defendants were awaiting trial, 3,000 of these were outside the country and were to be tried in abstentia. The former president, Mengistu Haile Mariam, was tried and given a life sentence in abstentia, but lives in exile in Zimbabwe, which has refused to extradite him.
The National Reconciliation Commission of Ghana was established under the National Reconciliation Act 2002, Act 611, to seek and 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. 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 2004. 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.
In August 2003, the Kenyan 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. There was little chance the Mwai Kibaki government would ever accept such a plan, but with the new transitional government of national unity now in place, there is a good chance that this might be one of the structures put into place to prepare the foundation for a more durable democracy.
One of the most recent truth commissions on the continent is that in Liberia, which was inaugurated on 20 February 2006 and is 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 will fall into three categories: individual hearings based on statements or interviews; thematic hearings that will look for the trends and causes of the conflict; and institutional hearings, which will examine how national institutions (such as the judiciary and education system) have been affected by the conflict, with a view to bringing about reforms.
Besides the delays, the process has been criticized by local civil society groups who claim that the commission is acting contrary to a memorandum of understanding by which civil society was to be the key implementing partner of community-based programs. Another major drawback to the process is the fact that former president, Charles Taylor, has through his lawyers obtained an order from the Supreme Court that prohibits any testimony about him being heard by the commission. They argue that such testimony may complicate his trial with the Special Court of Sierra Leone.
Morocco has at various stages established three transitional justice processes: a truth commission, a commission on arbitration, and a human rights advisory council.
Its truth commission, named, “the national commission for truth, equity and reconciliation,” was created by royal decree of King Mohammed VI in January 2004. 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.
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 King endorsed many of the recommendations and asked the Consultative council on human rights to ensure that action was taken to implement the recommendations. Although this commission is the first of its kind in the Arab world, its potential impact was limited by the fact that it could not name individuals responsible for human rights abuses, hence it could not make any recommendations concerning the perpetrators and its mandate was also limited in terms of the range of abuses experienced. As a result, its investigation was not as comprehensive as it should have been and it is no surprise that on 26 June 2006, the Moroccan section of Amnesty International presented its annual report in which it recommended compensation to 9,000 former victims of human rights abuses in the country.
The commission on arbitration on the other hand, was created by King Mohammed VI as a special committee within the Human Rights Advisory Council. It operated between July 1999 and December 1999 and its specific mandate was to provide financial reparations for victims of past abuses (illegal detentions and relatives of disappeared persons), and amnesty. The commission resolved 4,677 cases in which 3,657 claimants were awarded compensation and refused to review a further 6,500 requests for compensation because they were received after the 31 December 1999 deadline. 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.
The Human Rights Advisory Council was also established by the King in 1998 to investigate and document cases of disappearance. It operated for 6 months and no report was ever released apart from a press release which acknowledged 112 cases of disappearances.
A proposal by the former Nigerian president, Olusegun Obasanjo, to establish a Reconciliation commission to investigate the causes, nature and extent of the gross violations of human rights that took place from June 2000 to May 2004, never materialized. 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.
Besides these plans, in 1999 shortly after Obasanjo became president, he created the “Human rights violations investigation commission,” popularly known as the Oputa panel, to investigate all human rights violations that had occurred between 1966 and 28 May 1999. Public hearings were held in Abuja, Lagos, Kano and Port Harcourt between 2000 and 2001 when the panel was in operation. Although the panel concluded and submitted its report containing numerous findings and recommendations to President Obasanjo in May 2002, this report was never officially released until a coalition of pressure groups published it in January 2005. Nevertheless, the effectiveness of the whole process has been compromised by the fact that most of the recommendations of the commission were not implemented.
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 most recent in December 2006. The commission now works as a permanent institution.
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 trial 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.
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.
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 is now due to complete its mandate by 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 is 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.
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 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.
Perhaps the best know truth commission 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. 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.
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 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. Although the exact situation remains fluid, 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.
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 government 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.
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, only 18 out of 54 countries have created truth commissions and a majority of these have been in the 1990s. 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 can not 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.
Legal research guides, legal web sites directories, law lists, bibliographies, libraries’ and legal citations
These web sites provide a comprehensive collection of internet sources, bibliographies, truth commission reports and other official documents.
- Bibliographies on Human Rights - An elaborate bibliography on War crimes, truth and reconciliation commissions, truth and reconciliation in Africa/South Africa, compiled by Molly Ryan in Spring 1998, Human Rights Center, UC Berkeley.
- The Truth Commissions Digital Collection, part of the Margarita S. Studemeister Digital Library in International Conflict Management, is a collection constantly under development by the Jeannette Rankin Library Program, containing decrees establishing truth commissions and similar bodies of inquiry worldwide, and the reports issued by such groups.
- A site of the Centre for the Study of Violence and Reconciliation (CSVR) contains an elaborate bibliography on truth commissions in Africa.
- Abstracts of papers on the subject.
- This site contains a discussion of all the different transitional justice mechanisms/processes which have been or are being undertaken in Africa as well as an elaborate bibliography containing references to the different reports that were published.
- The Library of Congress has a collection of internet sources provides access to web sites featuring selected truth commission documents and other official inquiries and hearings sponsored at international, regional, national and grass roots levels involving African countries.
 See Ibid.
 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.
 For an elaborate discussion of this, see “Justice in perspective – Africa” http://www.justiceinperspective.org.za/index.php?option=com_content&task=section…
 In February 2005, the government sent a declaration accepting the jurisdiction of the ICC.
 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.