UPDATE: Transitional Justice in Africa – The Experience with Truth Commissions
By Charles Manga Fombad
Charles Manga Fombad is a Professor of Law and the Director of the Institute for International and Comparative Law in Africa (ICLA) at the University of Pretoria. He holds a Licence en Droit (University of Yaounde), LL.M. and Ph.D. (University of London), and Diploma in Conflict Resolution (University of Uppsala). Between 2003 and 2006, he served as the Professor Honorarius of the Department of Jurisprudence, School of Law, University of South Africa. Professor Fombad is the author/editor of 16 books and has published more than 94 articles in international refereed journals, more than 62 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. He serves on several advisory board to national and international journals. He has written several expert reports as a consultant for international bodies including the African Union, the Max Planck Foundation for International Peace and the Rule of Law, the International Institute for Democracy and Electoral Assistance (International IDEA) program for Sub-Saharan Africa and East Asia, and the Swedish International Development Co-operation Agency (SIDA). For three successive years (2004, 2005, and 2007), he received the special commendation prize as runner up to the University Researcher of the year at the University of Botswana. (No awards were made in 2006). He was admitted as a member of the Academy of Science of South Africa in 2016, an associate member of the International Academy of Comparative Law in 2018 and has been a fellow of the Stellenbosch Institute for Advanced Study (STIAS) since 2013. Since 2006 he has been a member of the Executive Committee of the International Association of Constitutional Law and has been one of its four Vice Presidents since 2014. His research interests are in legal history, delict (torts), media law, comparative law, comparative constitutional law, and international law.
The author thanks Ms. Cheree Olivier, a doctoral student and researcher at the Institute for International and Comparative Law in Africa, Faculty of Law, University of Pretoria, who did most of the research that was carried out in updating this
Published January/February 2022
Table of Contents
- 1. Introduction
- 2. The Concept of Transitional Justice and Its Dilemmas
- 3. Overview of African Truth Commissions
- 3.1. Algeria
- 3.1.1. Algeria and France
- 3.2. Burundi
- 3.3. Central African Republic (CAR)
- 3.4. Chad
- 3.5. Côte d’Ivoire
- 3.6. Democratic Republic of Congo (DRC)
- 3.7. Ethiopia
- 3.8. Ghana
- 3.9. Guinea
- 3.10. Kenya
- 3.11. Liberia
- 3.12. Mali
- 3.13. Mauritius
- 3.14. Morocco
- 3.15. Nigeria
- 3.16. Rwanda
- 3.17. The Gambia
- 3.18. Togo
- 3.19. Tunisia
- 3.20. Sierra Leone
- 3.21. South Africa
- 3.22. South Sudan
- 3.23. Sudan
- 3.24. Uganda
- 3.25. Zimbabwe
- 3.1. Algeria
- 4. COVID-19 and Transitional Justice in Africa
- 5. Appraisal and Future Perspectives
- 6. Conclusion
- 7. Legal Research Guides, Legal Websites, Directories, Law Lists, Bibliographies, Library and Legal Citation Guides
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 consistently ruled 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. The search for equilibria that achieves justice whilst ensuring social stability and reconciliation will remain a major challenge.
2. The Concept of Transitional Justice and Its Dilemmas
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:
- 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.
- 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.
- 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.
- 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 often, 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 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.
A global trend of truth commissions (which includes trends in Africa) is that more truth commissions are investigating human rights abuses as well as economic crimes. In some States, there are commissions tasked with addressing both violations, while others have two separate commissions. Those tasked with investigating economic crimes engage in a complex task, as the investigations often lead them abroad.
The African Union’s (AU) recent definition of transitional justice is “the various (formal and traditional or non-formal) policy measures and institutional mechanisms that societies, through an inclusive consultative process, adopt in order to overcome past violations, divisions and inequalities and to create conditions for both security and democratic and socio-economic transformation” (AU 2019: 4). The AU’s newly adopted transitional justice policy responds to critiques of earlier, now mainstream, conceptions of transitional justice as a set of overly standardised mechanisms that privileges short-term, technical, and expert-driven measures over contextually responsive and inclusive processes.
Transitional justice in the form of truth commissions in Africa as elsewhere in the world have encountered numerous challenges. Two instances in particular 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 goal has been sustainable peace and democracy, Africa is still grappling with this.
3. Overview of African Truth Commissions
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 set 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 totalling $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.
3.1.1. Algeria and France
France conducted its first nuclear test on 13 February 1960 near Algeria’s border with Mauritania. The testing went on for 30 years, and 17 nuclear tests were done in Algeria’s desert. The testing was only halted in 1996 by then French President Jacques Chirac. Critics of these tests claim that this practice has led to numerous deaths, injuries, and related injustices in Algeria. However, just one Algerian has been compensated. According to the French compensation commission, it has responded to claims that meet the legal requirements.
The law requires proof of a minimal level of exposure to weapon tests and offers a list of 23 different types of cancer which claimants can be compensated for. CIVEN director Gerin stated that they only receive a limited number of claims. More than 1600 claims were filed, but only 51 of these claims were made by Algerians (according to the France’s nuclear compensation commission CIVEN). Gerin further submits that Algerian claims do not meet the compensation requirements.
The testing sites in Algeria are still contaminated and are fenced off with barbed wire. French physicist Roland Desborders states that he saw radiation emissions from the minerals in these areas. He further claims that these areas are not tucked away in the corner of the dessert, but in fact frequently visited by Algerian nomadic groups who recuperate copper and other minerals from the sites. Unaware of the danger, Algerian citizens have collected the scrap metal to produce utensils and jewellery. Between 27,000–60,0000 people from the communities surrounding the test sites were affected.
President Macron has recently stated that the archives recording France’s military presence will be made public. He has also admitted that French forces tortured and murdered Algerian freedom fighter Ali Boumenjel in a meeting with Boumenjel’s grandchildren in March 2021. Boumenjel was a lawyer and freedom fighter who was arrested by the French army in the battle of Algries.
Earlier, in January, Macron refused to apologise to Algeria for the atrocities committed by France during its occupation. Instead, he agreed to establish a “Memories and Truth commission” so that the historical facts of France’s occupation in Algeria can be ascertained. Algeria has since repeated its request for an apology along with fair compensation. It also called for help to remove the toxic waste left by the French during their nuclear test in 1960.
On 20 February 2021 Macron met with several Algerians and apologised on behalf of France to the Algerian fighters who fought alongside the French troops during the Algerian law. The French had abandoned the Harkis in Algeria, where many of them subsequently endured torture or lost their lives, despite earlier guarantees to take care of them. Macron also undertook to introduce a compensatory law and announced the adoption of a ‘Recognition and Reparation’ bill. French historians and Harkis representatives prepared a report on the situation surrounding the Harkis since they arrived in France after the ceasefire.
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 five 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. Since the Security Council approved these recommendations in 2005, 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 three-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.
3.3. Central African Republic (CAR)
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.
In 2019, a peace accord was signed by the CAR and 14 armed groups. The agreement provides for the creation of mixed units between armed groups and the national army and the inclusion of armed group leaders in government. The Prefectural Implementation Committee (CMOP) has been set up by the CAR government to implement this peace accord.
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 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 directors 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.
In July 2015 Senegal and the African Union, to prosecute those most responsible for international crimes that were committed in Chad during the period when Habré was president, inaugurated the Extraordinary African Chambers. Habré was brought before the Chambers answer charges of crimes against humanity, torture and war crimes and on 30 May 2016 was found guilty and sentenced to life imprisonment. See, Q&A: The Case of Hissèn Habré Before the Extraordinary African Chambers in Senegal, Human Rights Watch (May 3, 2016).
3.5. Côte d’Ivoire
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 the 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 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 based on 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 was composed of 11 members and headed by former Prime Minister, Charles Konan Banny and included religious leaders, regional representatives, and the Chelsea footballer Didier Drogba. The Commission was modelled on the South African Truth and Reconciliation Commission and had two years to complete its mandate. The report was submitted to President Outarra in 2014 and recommended amongst other things that there be effective implementation of the law on rural land and the establishment of a national day of memory and forgiveness.
In response to the findings made by the commission, a compensation fund of about 15 million Euros was set up to compensate victims and the National Commission for Reconciliation and Victims Compensation was appointed to ensure the equitable distribution thereof.
The Ivorian government developed a complex reparations programme aimed at individual, collective and symbolic reparations. But this initiative did not prevent the re-occurrence of the events which took place in 2010 during President Ouattara’s re-election campaign. During the 2020 elections, conflict erupted once more.
3.6. Democratic Republic of Congo (DRC)
The removal of the 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 “re-establish 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 several 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 2018, the national government of the DRC changed but violence is steadily rising in the Eastern provinces. Currently, more than 100 armed groups are said to operate in the East where they fight for territory and exploit the DRC’s natural resources to finance their activities. The newly appointed President Tshisekedi promoted the idea of a truth and reconciliation commission as part of his election campaign. There have been efforts to establish localised commissions in the Kasai region: the Congolese Coalition for Transitional Justice has made efforts to establish mixed chambers to deal with past atrocities and this law has reached the Senate. However, President Tshisekedi has subsequently expressed an unwillingness to investigate the past and there are controversies over the period covered.
Congolese peacebuilders have set up local transitional judicial mechanisms such as inclusive local peace courts that administer non-punitive rulings and deal with local-level conflicts before they escalate. However, these efforts are rarely officially recognised or supported by the government and there has been little effort to link up local civil society with national efforts to address the root causes of atrocities. The Peace Exchange has called on the government to recognize and support local transitional justice efforts.
Informal peace courts have been established, called ‘Barazas,’ that are community-led. It is highly accessible (people can appear without paying any legal fees) and the Barazas make only non-punitive findings.
In 1992, the Ethiopian President created the “Office of the special prosecutor: the special prosecution process of war criminals and human rights.” 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 1,569 decisions have been handed down, with at least 1000 resulting in convictions. Mengistu himself was tried in absentia 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 1,300 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 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 six 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 3,000 victims of repression under Rawling’s rule and reforms within the prisons, the police, and the military.
A three-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.
In September 2009, the Guinean military committed atrocities, but they have not been held accountable and no reparations were made to victims. In 2011, a reflection on reconciliation and accountability was initiated, which led to a national consultation process which produced a report in June 2016. The domestic legal proceedings against the militants who committed the violations are still pending. The International Criminal Court announced a preliminary examination of Guinea in October 2009. Initially projected to take place in June 2020, the trial seems to have been postponed again as 2020 was an electoral year, with a lot of repetitive violence.
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 1,500 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 was required, amongst other things to provide as complete a picture as possible of the causes, nature, and extent of the post-election violence. It was 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 was empowered to recommend policies regarding reparations for victims, recommend prosecutions, and the creation of institutions conducive to a stable and fair society. It was 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 was 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. The ICC opened an investigation into the post-election violence in Kenya and indicted six prominent Kenyans, including President Uhuru Kenyatta and his Deputy Mr William Ruto. These cases have been stayed for a lack of evidence amidst accusations of witness tampering by the Kenyan government.
This was a commission plagued with controversy. In the first instance, the TJRC law was criticised, especially by civil society groups, because it allowed amnesties for human rights violations, excluded victims from the process, and failed to offer sufficient protection for witnesses. There was also a lot of controversy surrounding the chairperson of the Commission Mr Bethuel Kiplagat who was implicated as a person of interest in the final report for his involvement in several human rights violations to which he was linked including the Wagalla massacre and the death of the late Robert Ouko. See, Kenya TJRC Final Report Deserves Serious Analysis and Action (May 19, 2014) and Christopher Gitari Ndungú, ICTJ Briefing – Lessons to Be Learned: An Analysis of the Final Report of Kenya’s Truth, Justice and Reconciliation Commission, ICTJ Justice Truth Dignity (May 2014) (a report on Kenya’s TRJC). Criticism has also been levelled against the government for a failure to disseminate the final report was wide as possible amidst allegations that it was edited before release. Questions have thus been raised as to the accuracy of some of the contents of the report.
The failure of the commission can be attributed to a variety of factors. Tensions between the TJRC and the political elite arose in their attempt to maintain their power. The commission received low funding which impacted its efficiency. The public was also of the opinion that the TJRC, in its pursuit of justice and accountability, would threaten the peace. In addition to this, there was also several other processes occurring at the same time: the national conversation on land reform and a constitutional review process. All these projects vied for public attention and the ultimately, TJRC was deprioritised.
The TJRC also faced internal challenges. The mandate of investigating human rights violations and economic crimes from 1962–2008 was a tremendous task (especially considering the limited funding). The TJRC was forced to prioritise the tasks which they felt were possible and, in the end, they invested more in civil and political rights violations as opposed to corruption and economic crimes. The staff on the commission did not include experts with the requisite qualifications to investigate economic crimes. This meant that the TJRC had to rely on existing documents that drew links between economic crimes and its impact on human rights.
Their mandate did not enable them to create incentives for people to come forward with information (such as amnesty) and civil society not engage (in fact they opposed the agenda of the TJRC). The statute which established the TJRC was interpreted as allowing members of Parliament to exercise discretion in implementing the TJRC’s recommendations. In addition to the TJRC, there is also a commission responsible for asset recovery. However not many Kenyans are aware of it. Assets have been recovered but there is no transparency in how the funds are being currently allocated. There is also no current method of ensuring the accountability of government in the administration of the funds.
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 three-month 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 was based states that it had a mandate to promote national peace, security, unity, and reconciliation by:
- 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;
- providing a forum to address impunity;
- establishing an independent, accurate and objective record of the past, and paying particular attention to gender-based violence; and
- 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 and 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 few 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 several individuals from holding public office for thirty years were 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 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.
During 13–19 July 2021, a round of Palava Hut hearings took place in Rivercess County. The hearings are being conducted by Liberia’s Independent National Commission on Human Rights (INCHR) with support from the UNDP. Traditional elders and community leaders, with the guidance of the INCHR, were the presiding officers. The Commission has conducted similar hearings in Voinjama District in Lofa County (2017) and Tewor District in Grand Cape Mount (2020).
Mali established its Truth, Justice and Reconciliation Commission (CVJR) in 2014 with the mandate of investigating and establishing the truth about human rights violations as well as infringement on cultural heritage from 1960. The CVJR also needs propose remedies for the crimes committed, create conditions to facilitate the return and reintegration of refugees and promote dialogue for peace coexistence between communities and the government. The CJVR has 25 commissioners, including men and women representing the ten regions of the country, the diversity of Malian ethnicities, religious groups, and political parties. There are five sub-committees: truth-seeking; victim support and reparation; reports; awareness-raising and reconciliation including gender.
The CVJR had access to decades of human rights documentation conducted by the UN and with the help of additional mapping exercises, the CVJR had many crimes to consider such as summary executions, extrajudicial killings, enforced disappearances, and torture. The CVJR first set out to gather statements from victims and, with the help of regional teams, a call was sent to all Malians inviting them to provide the CVJR with an official statement. The response to their call was overwhelming and by July 2017 the CVJR collected 4,466 depositions.
The TJRC had its first public hearing in December 2019, and another was organized in December 2020. The TJRC held its third meeting in April 2021 under the theme of ‘enforced disappearances.’ There were 14 claimants with regards to 11 incidents dating from 1962 until as recent as 2020. The first testimony was about an event that took place in the early years of Mali’s independence. The children of two political opponents of Mali’s then President Modibo Keita, as well as the children of an influential trader recounted their fathers’ disappearances. In 1962 death sentences were handed down (later commuted to the sentence of a ‘hard labour life’) by the Bamako’s ‘people’s court’ who found the accused guilty of ‘conspiracy’ and ‘anti-national activities’ due to their participation in a protest against the introduction of the Malian Franc. However, the victims recall it being a demonstration demanding the release of a political leader detained by the police.
The accused were suspected of being the instigators of this process and was consequently arrested by soldiers a few hours after the protest, in front of their respective families. One victim stated that the soldiers broke everything in his family home and forced his family to come out of their rooms with threat of gunfire. It is under these circumstances that the fathers were arrested. Their fathers were tried without legal representatives, and they carried out their sentences at Mali’s most severe prison in Kidal.
The prisoners died two years after their sentence in 1964. The circumstances surrounding their death are unclear. The government at the time told the families that their deaths were caused by an attack launched against the military vehicle transporting the prisoners to another prison. The children testifying declared that only the prisoners were killed during this alleged attack and the military personnel transferring them were unharmed. The children believe that their fathers were executed by a firing squad.
It is now 57 years since the death of their fathers and their families are still uncertain about the cause of their deaths. Six of the eleven clams at the third hearing were related to families seeking answers from the military. During the two previous public hearings of the TJRC most of the victims were also seeking answers from the army. The CVJR president stated that the intention of these hearings it to allow grieving families to share their pain with the community. The victims delivering their testimonies have requested that the CVJR be more than a platform for them to air their pain and instead work to deliver answers to the questions that they have. To this the president of the CVJR responded that the commission does not have judicial mandate and for that reason cannot demand answers. The CVJR has three more public hearings to arrange before the end of its mandate (December 2021) and will then deliver a final report.
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 effort that took place under the different colonial powers. It therefore investigated 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. See, Truth & Justice Commission, Volume 1: Report of the Truth and Justice Commission (Nov. 2011).
The commission released its report in November 2011 and documented the experiences of various groups of Mauritians under colonialism. The Commission offered as part of its recommendations that the state memorialize the history of slavery in Mauritius and that the government offer empowerment schemes for Mauritians of African and Malagasy origin to increase social and economic justice.
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:
- 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;
- decide on reparation packages for victims and survivors;
- propose other remedies for victims, and safeguards against a recurrence of abuses;
- 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 a 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 concluded 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-centred manner.
At the end of the day, the impact of the work of the commission was very limited because its recommendations were not implemented. The Rivers State Truth and Reconciliation Commission was announced in 2007. Its mandate was to investigate the causes, nature, and extent of the gross violations of human rights committed in the Niger delta region specifically rivers state from June 2000 to May 2004. It was also tasked with facilitating the provision of amnesty to individuals that fully disclosed the truth of the violations they committed and the whereabouts of their victims. The commission reported in 2009, and the contents of the report are yet to be made public. The Osun Truth and Reconciliation Commission was constituted in 2011 and reported in the same year. Its mandate was to investigate the causes and incidences of gross human rights violations and public discontent in the state for the period of 1 June 2003 to 1 June 2011. It was also mandated to facilitate redress for victims and to promote reconciliation to prevent the recurrence of human rights violations. The report has not been made publicly available.
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 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. It operated between January 1999 and June 2000. The panel published a report entitled Rwanda: The Preventable Genocide (available from refworld.org).
The Gacaca courts were established by the Gacaca law of March 2001. The mandate of these courts was:
- to reveal the truth;
- to speed up trials;
- to put an end to the culture of impunity;
- to reconcile the people of Rwanda;
- to revive traditional forms of justice;
- to demonstrate the ability of local communities to resolve their own problems and
- 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 centres on charges of genocide and crimes against humanity. 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 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 neighbouring 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 still ongoing. Two cases had been transferred to France and 30 cases transferred to the Rwandan national courts. A completion strategy prepared in May 2007 predicted the completion of trials on schedule, by the end of 2008 but noted 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 have also been 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 of 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 during 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 defence 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.
3.17. The Gambia
ECOWAS successfully mediated the peaceful handover of power from former President Yahya Jammeh to current President Adama Barrow in the 2016 Gambian elections. The Gambia had to transition from a dictatorship to a democracy. In 2017 a series of laws was enacted which set up constitutional review, a national human rights body as well as a truth commission. The Truth, Reconciliation and Reparations Commission (TRRC) as part of its broader transformative agenda (the Gambia’s National Development Plan, or NDP) which was conceived of during the 2016 transition.
The TRRC has a two-year mandate during which it is expected to establish a record of human rights violations occurring from 1994-2017. Another key component of its mandate is reparations. A reparations policy is being created and in the meantime the commission offers victims medical, educational, and psychological support. However, the commission has limited capacity to offer psychological support and the public hearings have traumatised many of the victims. For victims to be eligible to receive reparations, they must testify during a public or provide the commission with a written testimony. This deters victims of sexual and gender-based violence. The commission is seeking to remedy this by creating provisions which will ensure that these victims receive reparations.
The TRRC has managed to create a better understanding of how the dictatorship operated as well as the power and wealth that Jammeh and his family accumulated. The public was unaware of how the dictatorship operated as Jammeh suppressed the media. Jammeh still has access to assets hidden abroad which he uses to maintain power over his loyalists in the Gambia. His supporters are demanding his return while his cronies receive money from Jammeh to carry out activities on his behalf.
At least four assassins associated with a hit squad from the Jammeh regime were released from prison after cooperating with the TRRC. Due to this, victims contend that the TRRC is not following a victim-led process. However, the boundary between victims and perpetrators within in the Gambian forces is however demonstrably unclear: many perpetrators of human rights violations were later found to be victims of the same human rights violations as well.
There is a second commission, the Gambian Commission of Inquiry (GCOI), separate from the TRRC. The mandate of the GCOI is to focus primarily on financial crimes. It was a challenge to employ commissioners, as careful steps needed to be taken to ensure that none of them belonged to the former regime. One important benefit of this economic crime Commission was that each of the commissioners had expertise, including expertise in forensic accounting and banking. This enabled the commissioners to support their recommendations to the government.
Once the appropriate commissioners were appointed, five policemen were tasked with supporting their activities. The police assisted in finding people to provide an initial testimony and further investigated to find more substantive statements. Based on these statements, the police identified which avenues they needed to pursue further. The commissioners were not allowed to conduct face to face interviews with suspects or persons of interest, but the commission had the power to intervene and ask questions as well as direct further investigations during this 20-month process.
The GCOI followed the transfer of funds and related bank processes involving the assets brought to their attention. They found the transactions and purchase prices, most which were bought by Jammeh through proxies. This proved to be challenging but eventually they could see a clearer picture, drawing from the testimonies and the tracing process and concluded that most of the transactions were affected with ill-begotten assets. The GCOI provided quality findings, which can be attributed to the willingness of Gambia’s Central Bank to cooperate with the commission. This was essential to the process, as the Central Bank was once the personal commercial bank of the former president, President Jammeh. Jammeh would make million-dollar withdrawals from Central Bank and no bank records were kept. The funds would then be paid into Jammeh’s Swiss accounts which held no record of these funds being in his name.
The commission’s skill at obtaining disclosures from foreign banks also played an important part in the quality of the findings. In one instance, there was an investigation of properties belonging to Jammeh in Maryland (United States). The US worked with the Gambian Ministry of Justice who, with their collaborative effort, could prove that public funds were used to purchase the properties in question. They also obtained witness testimony with regards to how the purchases happened.
One of the GCOI’s findings was that Jammeh dedicated the final price of the 40 estates in Banjul which he took over from private individuals. These properties have now been confiscated by the commission and sold by the current government, but there was opposition from those who associated with Jammeh that the government had no grounds on which to sell their property. The commission had to issue interim orders before the conclusion of the investigation to ensure that the assets would not disappear. Some individuals filed claims against the commission, but due to the independence of the judiciary, these cases were thrown out.
The GCOI determined that the assets should be returned to the State. The Gambia have accepted 95% of the GCOI’s recommendations, excluding those who affected individuals who were unable to refuse Jammeh’s orders. It is now the task of the Ministry of Justice and the judiciary to implement the recommendations. The executive branch must also allocate the assets and the funds towards reparations.
Togo has been rocked by political violence, especially in the presidential elections of April 2005 after the death of the 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-month 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. It released its final report in 2012, detailing the nature extent and causes of political (including electoral) violence in Togo as well as offering a contextual analysis of the root causes of such violence in the country. In February 2020, presidential elections were held and President Faure Gnassingbé was elected for the third time. Despite the recommendations of the Commission, violence erupted, and opposition leaders were intimidated, opposition rallies were dispersed, and civil society members were arrested.
The French army committed atrocities from March 1956 to July 1961 which caused the deaths of more than 7,000 Tunisians. During 1952-1954 when the national movement was pushing for Tunisia’s independence from France, there were mass arrests, torture, and collective reprisals during which women were raped and shops were looted. After Tunisia achieved its independence, France still dominated its economy and continued to derive benefits for certain French companies.
On 16 July 2019, Tunisia’s Truth and Dignity Commission (TDC) sent two memorandums calling first on France and then on the World Bank and International Monetary Fund to apologize and pay reparations to Tunisian victims. It says they all have a “share of responsibility” in colonial violence and social violence linked to structural adjustment policies. Commission President Sihem Bensedrine suggested a sum of 200,000 dinars per person killed. The amount due in reparations will be determined by archive documents, investigations, and testimonies of survivors of the liberation war.
The memorandum issued by TDC to the French government states that France employed a past strategy of impoverishment by means of extreme taxation. If further refers to France’s exploitation of Tunisia’s natural resources. The TDC demands an official apology from France wherein it acknowledges the facts, pay reparations to individual victims, certain regions as well as the State of Tunisia. Further, the TDC wants France to return the Tunisian archives (1881-1963) and cancel Tunisia’s bilateral debt as the TDC deems the debt illegitimate.
The other memorandum issued to the IMF and the World Bank refers to the period from 1970-2011. The memorandum states that these financial institutions pressured the Tunisian government into freezing wages and recruitment in the civil service, as well as reducing subsides on essential consumer goods. These policies caused social crises, including conflicts with the trade union movement (1978), the bread revolt (1983-1984); the mining region uprising (2008) and the 2011 Revolution during which a dictator was toppled. During each of these events, serious human rights violations were committed, including murder, rape, grievous bodily harm, torture, and unlawful imprisonment.
The TDC received a collective complaint from the Tunisian Trade Union Federation on behalf of trade union victims as well as 909 individual complaints relating to the conflict with the trade union in 1978. In relation to the bread riots, the TDC received 1 230 individual complaints relating to murders, rapes of minors, gunshot wounds, unlawful arrests, and imprisonment with a systematic use of torture. While the commission did find the Tunisian State to be responsible for these complaints, it also attributed responsibility to the IMF and World Bank which through loan agreements and structural adjustment plans imposed inappropriate polices. These policies caused the uprisings which led to serious human rights violations. The TDC demanded the IMF and World Bank provide an apology, pay reparations to the victims and the State of Tunisia, and cancel Tunisia’s multilateral debt.
There is no legal obligation on France or on the IMF and World to pay reparations to victims. The TDC refers to United Nations General Assembly resolution issued on 16 December 2007 which provides basic guidelines on the right to remedy and reparations for victims of gross violations of international human rights law. The memorandum also mentions the International Covenant on Civil and Political Rights adopted by the General Assembly on 16 December 1966 and the United Nations Resolutions of 21 March 2016 on the “the effects of foreign debt … of States on the full enjoyment of all human rights, particularly economic, social and cultural rights.” However, there is no precedent for the procedure the TDC is calling for. The TDC’s final report was published on 24 July 2020, in a special edition of the Official Gazette. This concluded the work of the Commission, who ultimately conducted 62 000 hearings. The mandate of the commission was to cover crimes which were committed between July 1955 and December 2013. The report establishes historical facts, contains a list of victims entitled to reparations, and recommendations on structural reform to the State of Tunisia.
The publication of the report in the official gazette triggers the follow-up phase, which includes the development of the government’s action plan as well as the establishment of a specific parliamentary commission to monitor its implementation. Civil society contributed to the diffusion of the TDC report, alongside the government and works to strengthen specialised criminal chambers to fight against impunity. During a ICTJ conference hosted in Tunis, Tunisian government representatives stated that the president will be implementing the recommendations in the report, which includes unveiling the truth and pursuing accountability.
In its final report, the TDC identified six areas which they have found to have been the most influenced by corruption: (1) real estate; (2) the banking system; (3) natural resources; (4) public administration; (5) privatisation and (6) customs and importation. The TDC received 11 000 statements and held only one hearing on the crime of corruption. During this hearing, testimony about how some perpetrators unlawfully acquired State property was given. The current president of Tunisia is however not pursuing an amnesty proposal.
The TDC did not concentrate on violations of economic and social rights. The commissions’ mandate did not grant it power to create a remedy in instances were alleged perpetrators refused to testify. There are now 3,782 cases that have not been decided by the commission, which include claims to human rights violations as well as corruption. Claims relating to economic crime are being dealt with by a Specialised Criminal Chambers. Selected judges are being trained in transitional justice as well as financial investigative procedures from UN Agencies and the Tunisian Ministry of Justice. These chambers are encountering challenges on charges of business-related corruption. This could be because the TDC could not finalise investigations that would have expedited the trials. The TDC prioritised investigations related to corruption committed by government officials.
Another initiative dealing with economic crimes is the Arbitration and Reconciliation Committee within the TDC to oversee corruption cases. Arbitration is difficult as it is often found that the entire State is the victim of corruption. During this process, perpetrators must acknowledge and apologise for their actions, and they must reveal the way in which they illegally obtained the assets. The Arbitration Committee concluded 19 arbitration–agreements and has delivered nine arbitration decisions relating to corruption. The arbitration decisions are not published and the criterion for the decision-making process is unknown to the public.
3.20. Sierra Leone
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 nine of them in custody. The trial of Charles Taylor, the former president of Liberia, by the UN-backed Special Tribunal at the Hague, which started in 2008 ended in 2012. Taylor, who had been indicted on 11 counts including charges of terrorism, unlawful killings, sexual and physical violence, and the enlisting of child soldiers, was sentenced to 50 years in prison. In 2013, the appeal chamber rejected his appeal and affirmed his 50 years’ sentence.
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 5,000-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 $100 USD interim payment. Other reparative measures such as educational support and health care have also been implemented.
3.21. South Africa
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 2,000 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.
Despite its lauded political transition, South Africa continues to have amongst the highest level of violence and inequality in the world. While South Africa is a functioning democracy, the reforms did not manage to ensure that many of the TRC’s recommendations were implemented. The government failed to follow up on the transitional justice process (which is a common outcome of truth and reconciliation commissions across the globe). Spatial apartheid continues to cause socioeconomic factors that limit opportunities and social transformation.
Organised survivors of Apartheid suggest that violence cannot be addressed unless inequality is similarly addressed. According to them the transition is ongoing, and not limited to the phase during which the government implemented transitional peace measures (1990s-2000s). For the past two decades, the Khulumani group has continued to work on mainstream transitional justice issues, providing social and trauma support to survivors while advocating for reparations, prosecutions, truth recovery, and institutional accountability The Khulumani group has joined the South African Coalition for Transitional Justice, and worked with academic and civil society researchers examining mainstream transitional justice concepts and practice. South Africa’s transitional justice thus continues by a people-driven transformation.
Activists have established a People’s Tribunal on Economic Crime regarding the continuing corruption in South Africa. A link was established between the failure of the TRC to address economic crimes and the problems South Africans are faced with today. In response the government created a Judicial Commission of Inquiry into Allegations of State Capture to investigate economic crimes which occurred during and after Apartheid. The Commission has the power to search, but its power in relation to banks are not public knowledge. Banks refuse to answer questions relating to bank records in public and always request a secret session.
A recommendation has been made that the commission subpoena banks to provide the details of how they access the information that they are sharing. Currently, the commission can only access domestic bank accounts. Senior prosecutors go to jurisdictions within which money has disappeared and work with foreign authorities to establish its trail. This is a challenging endeavour, which some feel should have been addressed by the TRC in earlier years.
There are also State driven initiatives such as the land reform process, which has aimed to redress those dispossessed of their land rights by the 1913 Natives’ Land Act and subsequent legislation. The Land Claims Commission and the Land Claims Court were formed to oversee land restitution and reparations, accepting land claims between 1995 and 1998 and then again between 2014 and 2019. The process had shortcomings, mainly in being too slow and reaching too few, but the Land Claims Commission has nevertheless settled claims for 177,623 hectares, at a cost of more than 881 million rand for the land and transferred 1.7 billion rand in financial compensation to 37,902 beneficiaries to date. While this approach may not be labelled as ‘transitional justice’ it meets the classic United Nations definition of transitional justice as “the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation” (UN 2004: 8).
3.22. South Sudan
After two years of delay, the South Sudanese government decided to proceed with the establishment of the Hybrid Court as well as other transitional justice mechanisms to address violations committed during the conflict. The Ministry of Justice and Constitutional Affairs are taking necessary steps for establishing a Commission for Truth, Reconciliation and Healing to investigate and document human rights violations during the conflict in South Sudan, the Hybrid Court for the investigation and prosecution of perpetrators as well as the Compensation and Reparation Authority to administer a repreparation fund.
The lack of reparations, especially for crimes of sexual violence, has resulted in victims bearing multiple physical, psychological, and socio-economic burdens. To adopt the abovementioned mechanisms, South Sudan needs to sign a memorandum of understanding with the African Union and adopt a draft Statute for the adoption of a hybrid court. The consultations must be broad based and inclusive so that South Sudanese people to contribute towards the formation of the transitional justice processes.
Three transitional justice processes have been used 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:
- crimes as constituted within the Sudanese and other penal codes;
- charges submitted by committees set up to look at the Sudanese government’s commission of inquiry and
- 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 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.
President Omar al-Bashir was ejected in April 2019 due to a popular revolution and intervention from the military. Since then, Sudan has embarked upon a democratic transition under the stewardship of the Sovereign Council and a transitional government led by Prime Minister Abdalla Hamdok. Under this government, the Transitional Justice Commission Bill (which provides for transitional justice measures) was introduced and is currently under consideration.
Uganda is another country that 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 tranquillity in the country. The amnesty applied to actions dating to 26 January 1986. The commission was to be responsible for:
- sensitizing the public about the Amnesty law;
- promoting dialogue and reconciliation;
- demobilizing and processing amnesty applications;
- re-insertion support, including providing resettlement package reporters and
- 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 $150 USD, 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 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 Chihambakwe 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.
4. COVID-19 and Transitional Justice in Africa
The COVID-19 pandemic has caused the postponement or temporary suspension of processes such as the public hearings of truth commissions. The Republic of the Gambia, Sudan and South Sudan has temporarily postponed some of their transitional justice processes. The impact of the pandemic has added to the needs of victims of human rights violations, especially in terms of their access to health care. The African Union’s Transitional Justice Policy and Report of the African Commission on Human and People Rights on transitional justice in Africa creates opportunities for Member States of the African Union to reshape their transitional justice processes both during and after the COVID-19 pandemic.
5. Appraisal and Future Perspectives
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 to prevent a repetition of the violence in the future, it seems 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 few 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 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 have role to play in the transitional process.
A lesson that can be taken away from the transitional process in Kenya is that truth commissions need the support of civil society to be effective. The transitional justice initiatives currently taking place in South Africa was largely initiated by civil society, which lends their unwavering support. This demonstrates that the South African civil society has sustained political interest in the process of transitional justice, which is essential because transitional justice takes time. There will likely need to be more than one initiative (which requires continuous engagement) as well as a consistent monitoring of the institutions which are responsible for implementing the necessary changes (which requires consistent vigilance). Developing a permanent independent governmental institution responsible for overseeing the processes followed by other institutions is thus very important.
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 cannot be bought off the peg but must take account of each country’s unique 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. Most 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. Several 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 individuals where there is evidence to the commission of what amounts to crimes against humanity. Fourth, 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.
The reports of truth commissions often recommend institutional reforms, as no remedy they suggest will work without inclusive and transparent institutions implementing them. While the individual perpetrators need to be held accountable, the institutions which form part of the environment where such violations were possible must also be investigated. Leaders of armed groups during a political conflict often gain employment in the government once the conflict is over. These leaders often get involved in serious economic crimes which are not conflict related. One way in which to ensure that they are held accountable for the full scope of their actions is to charge them with organised criminal activity (embezzlement, illegal arms deals, and human trafficking) as opposed to international crimes.
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.
7. Legal Research Guides, Legal Websites, Directories, Law Lists, Bibliographies, Library and Legal Citation Guides
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 (Under Resource Hub; coming soon)
- Abstracts of papers on the subject.
- The Centre for the Study of Violence and Reconciliation, African Transitional Justice Comparative Study
- Centre for Conflict Resolution: Building Peace in Africa, Peace versus Justice?: The Dilemma of Transitional Justice in Africa (Ch. L. Sriram & S. Pillay eds. 2010).
 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. 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.”
 South Africa: Truth and Reconciliation Commission, Justice in Perspective, https://web.archive.org/web/20160321014740/http://justiceinperspective.org.za/africa/south-africa/truth-and-reconciliation-commission.html (last accessed in April 2016; link provided by the Internet Archives as Justice in Perspective website appears to be defunct).
 According to journalist Elizabeth Bryant in her article ‘Algeria: 60 years on, French nuclear tests leave bitter fall out’ (13 February 2020) available at: https://www.dw.com/en/algeria-60-years-on-french-nuclear-tests-leave-bitter-fallout/a-52354351 [Accessed 27 July 2021].
 Borneo Bulletin https://borneobulletin.com.bn/france-admits-torture-murder-of-algerian-freedom-fighter/ [Accessed 3 August 2021].
 A Mayadeen ‘Macron to Algerian Harkis: I Ask for Forgiveness’ https://english.almayadeen.net/news/politics/macron-to-algerian-harkis:-i-ask-for-forgiveness [Accessed 20/09/2021].
 See ‘Peace and Security in the Central African Republic: Community Perspectives from Bossangoa and the Western Border Zones Report’ (2020) by Conciliation Resources and the Centre for Humanitarian Dialogue available at: https://rc-services-assets.s3.eu-west-1.amazonaws.com/s3fs-public/Peace_%26_security_in_the_Central_African_Republic.pdf [Accessed 27 July 2021].
 See, Hélène Calame & Joël Hubrecht, La Commission Dialogue Vérité et Réconciliation Ivoirienne: Une Belle Coquille Vide?, Institut des Hautes Études Sur la Justice (Oct. 2015).
 “Réparation Communautaire des victimes de la crise: La Ministre Mariatou Kone annonce le démarrage en juillet 2017,” 9 May 2017, http://www.gouv.ci/_actualite-article.php?recordID=7595.
 ‘Broadcasting Peace: Insights and lessons from local peacebuilders in Eastern DRC’ () by Peace Direct available at: http://broadcastingpeace.peaceinsight.org/reports/broadcastingpeace/#executive-summary [Accessed 27 July 2021].
 On 24 June 2011, President Alpha Conde (elected in November 2010) established an Interim Commission to Reflect on National Reconciliation.
 Human Rights Watch, “Guinea: A decade later, no justice for massacre – investigation complete; trial should be scheduled,” September 2019, https://www.hrw.org/news/2019/09/25/guinea-decade-later-no-justice-massacre#:~:text=The%20security%20forces%20killed%20more,September%2028%20and%20their%20aftermath
 See, Human Rights Investigation Violation Investigation Commission of Nigeria (HRVIC) – All About the Oputa Panel (HRVIC), Nigerian Muse, http://www.nigerianmuse.com/nigeriawatch/oputa/ (last accessed February 13, 2017) (not secure connection).
 0 Louise Hunt, ‘The Truth Is Not Enough for Gambia’s Regime Victims,’ The New Humanitarian, 23 September 2019, https:// www.thenewhumanitarian.org/news-feature/2019/09/23/trrc-Gambia-truth-commission-rights (accessed 2 August 2021).
 Amnesty International, “Togo – Submission to the United Nations Human Rights Committee 128th Session,” 2–27 March 2020, p. 4, https://www.amnesty.org/download/Documents/AFR5716532020ENGLISH.PDF.
 For the full report follow: https://reparations.qub.ac.uk/assets/uploads/TDC_executive_summary_report.pdf [Accessed 6 August 2021].
 Brankovic J, Mphahelle B, Ngxukuma A, Njana N and Sishuba Y “Violence, Inequality and Transformation: Apartheid Survivors on South Africa's Ongoing Transition” (2020) Research Publication by CSVR available at: https://www.csvr.org.za/violence-inequality-and-transformation/ [Accessed on 28 July 2021].
 African Union, Welcome Remarks of H.E. Minata Samate Cessouma, Commissioner for Political Affairs Delivered during the Trnsitional Justice Virtual Dialogue with Member States, Civil Society, the Academia, and the National Human Rights Institutions, https://au.int/en/speeches/20200603/welcome-remarks-he-minata-samate-cessouma-commissioner-political-affairs-delivered.