KADER ASMALargues that truth commissions can often be a necessity in reconstructing societies following a prolonged conflict
PROF KADER Asmal, formerly of Trinity College and now of the University of the Western Cape, delivered the inaugural address to the Centre for Post-conflict Justice at Trinity College last month. The following is an excerpt from his speech.
Many challenges face civil society operating in the area of transitional justice on the continent [of Africa] today. The South African case is now treated as an iconic case globally. This model has played a central role in the evolution of the transitional justice industry. Truth commissions are gaining popularity, despite the contrary tendency of postmodernists to question the very value of “truth”.
We need to reflect critically on the South African truth process, through several lenses, including the hidden liabilities of political negotiations, the challenges and dilemmas that negotiated transitions present for civil society organisations (CSOs), and the implications of who owns the transitional justice mechanisms that are put in place.
Constitution-making, for example, is often not considered to be a mechanism of transitional justice. In a way, it is believed that this is the terrain of politics and policy. Is this a misconceived approach?
In relation to transition processes, let me posit that it is important to consider who is in and who is out. During the South African negotiations, 23 political parties were at the table; there is never talk of who was not present. If civil society is not proactively organised to shape what is happening at the negotiating table, it will not be heard. We must be mindful of the fragility of a state in formation, which does not necessarily have the capacity to implement recommendations which flow from transitional justice processes . . .
It is necessary to decipher what is possible and what is not in the peace-building process. Transitional justice is not only about political negotiations and constitution-making, but also about how to redefine the social fabric and rebuild relationships, both between citizens and between citizens and their state. The exclusion of CSOs and specifically victims’ groups from negotiations is problematic.
Civil society acts as an intermediary between vulnerable groups and the government; thus, it must not forget this role and become purely focused on lobbying and advocacy. The big challenge for CSOs and non-governmental organisations (NGOs) is to remain close to the social groups and movements on behalf of whom they speak.
Is there any substance to the observation that an overemphasis on reconciliation may in fact result in impunity?
Over the last 20 years, dramatic changes have occurred in the global and legal environment. Transitional justice has become an embedded framework, both in law and in human rights. A gap still exists between this normative legal framework and the implementation and practice of local actors confronting the messiness of very frail peace processes on the ground. Too many CSOs are focused on naming and shaming at the expense of grappling with the dilemmas of such contexts. This is also linked to the sometimes tense relationships between international and local organisations.
The challenge that we face today is in identifying the taxonomy of crimes and assigning priorities. The ICC talks of crimes against humanity, war crimes and genocide only, not about economic crimes or environmental injustices, or the continuation of non-political violence.
The transitional justice agenda should engage with the fault lines of conflict and its root causes. We need to be asking how a truth commission can be better equipped to deal with historical and structural injustices – or if not to deal with these questions, which may rather be a government function, at least to consider them and point a way forward. We also need to enquire . . . which traditions in the global human rights discourse can shape transitional justice tools in the task of expanding jurisdictional boundaries.
It is very easy for activists and institutions to focus on violations that are the symptoms of conflict or repression. It is key also to focus on the root causes. This is not always easy, and lines must be drawn, but do remember to understand the entire story – not just the most obvious, easiest parts of it.
There have been more than two dozen national truth commissions or fact-finding inquiries into past conflict established around the world, such as in Argentina, Chile, Guatemala, South Africa, Peru, Sierra Leone, Ghana, East Timor and, more recently, Indonesia and Liberia. So, what do they do?
Truth and reconciliation commissions typically focus on the larger patterns and trends, and not just specific instances of human rights violations. They are often victim-centred in that they provide a platform for victims to address the nation with their personal stories. Commissions organise events to promote reconciliation and tolerance between former enemies at the individual, community and national levels. A truth commission makes findings, and in some case it publicly names factions and individuals responsible. In so doing it advances the cause of accountability.
A truth commission report may include recommendations aimed at addressing the underlying causes of conflict, which may include institutional reform measures. Many truth commissions have recommended . . . a detailed reparations programme to redress the wrongs suffered by victims. Some commissions even recommend criminal prosecutions of specific role players in the conflict . . .
With the necessary caveats, it appears that in certain circumstances, they are a necessity. The “industry” tag would rather apply to some of the institutions which have been set up to investigate and/or promote truth commissions, without any real roots in the countries they are concerned with; or to self-interested NGOs who make hurried proposals, regardless of the context.
This, I know, does not apply to your centre here, which I am honoured to have addressed tonight.