Transitional justice has become central to continental efforts to build and sustain peace in Africa, in line with the African Union’s Agenda 2063 and commitment to Silence the Guns by 2030, writes Khabele Matlosa.
One of the major challenges facing Africa today is the prevalence of protracted violent conflicts. For the continent to achieve the vision of an integrated, united and prosperous Africa, it has to prevent, manage and resolve violent conflicts constructively. Only then will the continent realise the noble aspirations of Agenda 2063: The Africa We Want. Agenda 2063 is the long-term development blueprint of the continent adopted by the African Union in 2014, which will be implemented through ten-year plans. The first Ten-Year Implementation Plan of Agenda 2063 will end in 2023. Its success is dependent on the state of peace-building and democracy-building, and transitional justice is the glue that binds peace and democracy as flipsides of one coin.
During the celebration of the Golden Jubilee of the Organisation of African Unity/African Union (OAU/AU) in 2013, African leaders adopted the 50th Anniversary Solemn Declaration on Pan-Africanism and African Renaissance. In that declaration, African leaders committed themselves to advancing Africa’s socio-economic development, premised on democratic and participatory governance as well as sustainable peace, security and political stability. To this end, they vowed not to bequeath violent conflicts and wars to the next generation of Africans. They declared 2020 the year of Silencing the Guns: Creating Conducive Conditions for Africa’s Development. They committed to redoubling their efforts to prevent, manage and resolve violent conflicts by 2020.
When the COVID-19 crisis confronted the world and Africa, concerted effort went into fighting the pandemic, to the detriment of conflict prevention, management and resolution. Consequently, violent conflicts persisted and even increased in some instances. During the AU’s Extraordinary Summit, held virtually on 16 December 2020 under the stewardship of Matamela Cyril Ramaphosa, president of South Africa, as the AU chairperson, the AU Assembly of Heads of State and Government extended the time frame for Silencing the Guns from 2020 to 2030.
The principal thrust of this article is two-pronged. First, the AU has developed a robust and expansive normative framework for conflict prevention, management and resolution, even though a gap still remains in terms of norm-setting and norm-implementation. With the transformation of the Organisation of African Unity into the AU in 1999, for instance, the old doctrine of non-interference in the internal affairs of member states was replaced by the new doctrine of non-indifference to human rights abuses within member states. This is clearly spelt out in Article 4(h) of the 2000 Constitutive Act of the AU, which provides for “the right of the Union to intervene in a Member States pursuant to a decision of the Assembly in respect of grave circumstances, namely war crimes, genocide and crimes against humanity.”
Second, it is in the current era of the AU, and within the context of the new doctrine of non-indifference, that transitional justice has become a central plank of continental efforts aimed at building and sustaining peace in Africa. This new reality was demonstrated vividly by the adoption of the AU Transitional Justice Policy in 2019, an epochal development in Africa’s peace-building and democracy-building journey.
Conflict denotes a disagreement between two or more individuals/parties in which pursuit of the interests of party A has the potential to affect negatively the interests of party B. Conflict is a natural part of human life. It is here to stay. It cannot be wished away. In each country, conflicts happen at every layer of society: family, community, organisational, sub-national, national and so on. Between and among countries, there are cross-border inter-state conflicts.
Ordinarily, conflicts are constructive for socio-economic and other forms of advancement. But conflicts become destructive the moment they turn violent and belligerent parties pursue solutions by violent means. Violent inter-state conflicts were more prevalent during the Cold War era. Since the collapse of the Berlin Wall in 1989, and of apartheid in Namibia and South Africa in the early 1990s, violent inter-state conflicts have receded. This development promised a peace dividend in Africa.
The anticipated peace dividend never saw the light of day, however. The decline in violent inter-state conflicts was, unfortunately, accompanied by a phenomenal increase in violent intra-state conflicts on the continent. Today, conflicts within countries are far more common than conflicts between countries.
What are the main structural root causes of violent conflicts within countries? While the causes are many and varied, they can be grouped into three main categories: contestation over state power, competition over national resources and mismanagement of diversity. Measures aimed at prevention, management and resolution of violent conflicts as part of the realisation of Agenda 2063 in the long term, and Silencing the Guns by 2030 in the medium term, have to address these causes of crisis in Africa. If we fail to address the three structural root causes, we run the real risk of merely dealing with symptoms of conflicts—tantamount to papering over the cracks of a collapsing house.
Violent conflicts have numerous adverse effects on societies and individuals, chief among them the loss of lives, destruction of property and forced displacement of people. Evidence suggests that the bulk of forced displacement is a result of violent conflict, compared to natural disasters and other kinds of human-made disasters. According to the United Nations High Commissioner for Refugees, the global population of forcibly displaced people is on the rise. The more violent conflicts intensify, the more people are displaced within their own countries as internally displaced persons (IDPs) and to neighbouring and other countries as refugees and asylum seekers. The social groups hardest hit by forced displacement are women, children, youth, persons with disabilities and older persons.
The global population of forcibly displaced persons has surpassed 80 million people. This figure includes 45.7 million IDPs, 29.6 million refugees and 4.2 million asylum seekers. Africa accounts for more than a third of this population. The continent is home to a total of 29 million forcibly displaced persons, largely as a result of violent conflicts. Of these, there are 19.2 million IDPs and 7.8 million refugees and asylum seekers. It is easy to see why there are more IDPs in Africa compared to refugees. This is because, today, there are more intra-state than inter-state violent conflicts. Let us now turn the spotlight on transitional justice.
According to the Peacebuilding Initiative, transitional justice involves various approaches, “both judicial and non-judicial, that states and societies emerging from repressive rule or violent conflict may adopt to address past human rights abuses/violations with the aim of fostering sustainable peace and democratic governance.” Conventionally, transitional justice approaches include criminal prosecutions, truth commissions, reparations, institutional reforms, especially vetting, and amnesties. The 2019 AU Transitional Justice Policy (AUTJP) includes two more approaches in the context of Africa, namely socio-economic reforms aimed at redistributive justice and traditional justice mechanisms aimed at advancing retributive, restorative and reparative justice.
The AUTJP is the principal guide for all 55 AU member states on peace-building, democracy-building and reconciliation following protracted violent conflict and/or authoritarian rule that resulted in gross violations of human rights. The AU definition of transitional justice is “the various policy measures and institutional mechanisms (formal and traditional) 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 as well as socio-economic transformation.” This is a broad conception of peace that transcends retributive, restorative and reparative justice, and extends to redistributive justice aimed at socio-economic transformation and equitable distribution of national resources.
The United Nations defines transitional justice as “the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure accountability, serve justice and achieve reconciliation … which includes judicial and non-judicial mechanisms.” This definition is narrow in that it focuses on guaranteeing liberal peace, which is confined to retributive, restorative and reparative justice, without addressing redistributive justice aimed at development and socio-economic transformation.
It is evident that the AU has adopted a fairly broad definition of transitional justice compared to the UN. This is because the African context demonstrates that in order to achieve sustainable solutions to violent conflicts, there is need to deal with socio-economic challenges. Hence the emphasis of the AUTJP on, inter alia, redistributive justice. During the OAU, relatively little effort was made towards entrenching transitional justice, beyond the adoption of the 1981 African Charter on Human and Peoples’ Rights. A concerted move towards institutionalising transitional justice began in earnest in the mid-2000s, under the aegis of the AU.
The first major milestone was the adoption of the Policy on Post-Conflict Reconstruction and Development (PRCD) during the AU Assembly of Heads of State and Government in 2006. Within the framework of this policy, transitional justice falls under one of the six constitutive elements of PCRD, namely Human Rights, Justice and Reconciliation. It is under this element that the PCRD policy encourages AU member states to develop transitional justice mechanisms that combine human rights, accountability, justice and reconciliation.
The second milestone, building on the 2006 PCRD policy, was achieved by the AU Panel of the Wise, one of the pillars of the African Peace and Security Architecture. The Panel of the Wise commissioned a study on “Non-impunity, Truth, Peace, Justice and Reconciliation: Opportunities and Constraints,” undertaken by Prof. Gilbert Khadiagala of the University of Witwatersrand, South Africa, and Dr. Comfort Ero, then of the South Africa office of the International Center for Transitional Justice. Following this study, the Panel of the Wise adopted a report entitled “Peace, Justice, and Reconciliation in Africa: Opportunities and Challenges in the Fight against Impunity” in 2011. One of the major recommendations of the 2011 report was that the AU should develop a transitional justice policy framework and strengthen instruments for justice and reconciliation on the continent.
In articulating key issues on transitional justice in Africa and framing its key recommendations, the Panel of the Wise report drew enormous inspiration from the AU Panel on Darfur, Sudan. Led by Thabo Mbeki, the former president of South Africa, the Panel on Darfur was the third milestone, offering insightful suggestions on advancing transitional justice in Africa as part of peace-building, democracy-building, socio-economic transformation and equitable development. The Mbeki report, entitled “Darfur: The Quest for Peace, Justice and Reconciliation,” chronicled challenges confronting war-torn Sudan and outlined imperatives towards peace-building through transitional justice that are anchored in accountability, justice and reconciliation with the aim of ending impunity. Although the Mbeki report had Sudan as its primary remit, it set out relevant ideas around framing a continental transitional justice in Africa.
The fourth milestone was the African Commission on Human and Peoples’ Rights undertaking a study on transitional justice and human and peoples’ rights in Africa, with technical support from the South African organisation, the Centre for the Study of Violence and Reconciliation (CSVR). Upon its completion, the study was adopted by the 24th Extraordinary Session of the African Commission on Human and Peoples’ Rights in August 2018.
Finally, all the milestones reached by the AU from 2006 to 2018 provided a perfect platform for the conceptualisation and development of the AUTJP. The policy’s development was driven by the African Union Commission’s Department of Political Affairs, in close collaboration and partnership with CSVR and other relevant civil society organisations. Upon its completion, the AUTJP was adopted by the Assembly of the AU Heads of State and Government in Addis Ababa, Ethiopia, in February 2019. The AUTJP guides AU member states in framing their national transitional justice strategies, policies, legal frameworks and implementation modalities based on key principles such as popular participation, inclusiveness, non-discrimination and victim-centredness.
It is well-nigh impossible for Africa to achieve the seven aspirations of Agenda 2063 and the seventeen goals of the global 2030 Agenda for Sustainable Development without democratic governance, peace and political stability. Two of the seven aspirations of Agenda 2063 are relevant for the purpose of this opinion piece. Aspiration 3 envisions “an Africa of good governance, democracy, respect for human rights, justice and the rule of law” as part of the implementation of the 2007 African Charter on Democracy, Elections and Governance through the African Governance Architecture. Aspiration 4 envisages “a peaceful and secure Africa” as part of implementation of the 2002 Protocol Establishing the Peace and Security Council of the African Union through the African Peace and Security Architecture. In order to achieve Aspirations 3 and 4 of Agenda 2063, Africa has to invest more efforts and resources into conflict prevention. As the English saying goes, prevention is better than cure.
Where conflicts erupt and escalate, concerted effort is required for their effective management and resolution. Undoubtedly, transitional justice binds democracy and peace together. Transitional justice is the responsibility of state and non-state actors alike. Non-state actors have a strategic role to play in advancing transitional justice in Africa, in close collaboration with state actors at the national level (governments), regional level (Regional Economic Communities) and continental level (AU) and in partnership with the United Nations and other international actors. Transitional justice has to become a central element of the AU’s ambitious agenda of silencing guns and ending intra-state violent conflicts by 2030.