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| T O P I C R E V I E W |
| Momodou |
Posted - 08 Jun 2022 : 00:06:27
Transformative Transitional Justice: The key to sustainable peace and Never Again
By Baba G. Jallow
Transitional Justice may be defined as the totality of processes and mechanisms designed to assist societies deal with a painful past of human rights violations, authoritarianism or conflict, to craft a present and future of respect for human rights, human dignities and the rule of law, and to help prevent a recurrence of past human rights violations. They often mark periods of transition and invariably include looking at the past for the truth of what happened, gathering evidence, and ultimately making recommendations designed to correct the wrongs of the past through regimes of reconciliation, healing, reparations, criminal prosecutions, and administrative, institutional and other reforms and initiatives that would address the policy failures and gaffes that contributed to the emergence of a culture of impunity and rights violations.
The ultimate aim of any transitional justice process should be to bring about a certain level of transformation in society. Societies emerging from authoritarianism of conflict, or that experienced a period of human rights violations recognize that some things were fundamentally wrong or dysfunctional in their recent pasts, and that those things needed to be corrected so that society may be transformed to a better version of itself and so that such wrongs may not recur in the future. Thus, all transitional justice mechanisms first embark on research and investigation of what went wrong, how and why it went wrong, and subsequently draw from the evidence gathered to make recommendations for corrective measures that need to be taken to ensure a better future.
Truth commissions are the quintessential transitional justice mechanism. While there may be other important mechanisms involved in the work of looking at the past in order to recommend corrective action, truth commissions mainly focus on investigating widespread human rights violations, promoting healing, reconciliation and the payment of reparations, and making recommendations for criminal prosecution of perpetrators, as well as recommendations for administrative, institutional and policy reforms that would have transformative effects on society. Their essential characteristics include the fact that their mandate periods are clearly delineated and their periods of existence limited to a number of months or years, after which they cease to exist.
The work of truth commissions is generally divided into two main phases, namely the truth-seeking phase and the implementation phase. The truth commission operates as a functional entity during the truth-seeking phase. It ceases to exist as an entity once its final report and recommendations are submitted to the establishing authority, which marks the beginning of the implementation phase of its work. In general, the truth-seeking phase is relatively uncomplicated, depending on the context and the environment in which the truth commission operates. Research and investigations are conducted into the past in question, evidence is gathered, and final reports containing recommendations are written and submitted to the establishing authority. However, the implementation phase of a truth commission’s work is generally acknowledged to be rife with controversies and complications. These complications often result from a lack of political will or the of capacity to implement recommendations, some of which could run counter to the vested interests of the establishing authority, or be perceived as threats to the maintenance of peace and stability in society.
These difficulties of implementation have meant that historically, in many cases, truth commissions have not been able to have any significant transformative effects on society. In some cases, their final reports are made public and promises of implementation are made, but little of substance in terms of follow-up are done. In a few cases, their reports are not made public at all and public demands for implementation are ignored. There have been cases where efforts at implementation are made and some success registered in this regard. In general however, little transformative changes are registered in the societies in question and the threats of recurrence or “a return to the past” remain visible during the post-truth commission periods.
A look at the history of truth commissions reveals that a common but not so recognized explanation for the failure of truth commissions’ transformative potential resides in their institutional structures and modes of operation. Most truth commissions are built and their work is centered on the “commission” itself – the group of eminent persons, headed by a chair, entrusted with conducting the investigations and submitting a final report to the establishing authority. The number of commissioners could range from three to over thirty persons, generally of impeccable character and sterling public credentials. These commissioners are often supported in their work by a skeletal secretariat staff composed of an executive secretary, researchers, investigators and statement taking assistants. Most of the research, investigation, statement-taking and listening to witness testimonies is done by the commissioners. The result of this model of “commissioner-centered” truth commissions is that a lot of the work required to render the truth commission process effectively transformative cannot be done by the commissioners alone. And even in the many cases in which these “commissioner-centered” truth commissions do a brilliant and thorough job of executing their mandates and submitting excellent reports, the transformative effects of their work remain at best, minimal and at worst, non-existent.
Perhaps too, these “commissioner-centered” truth commissions were not necessarily conceived as agents of transformative transitional justice. It seems they were merely designed to conduct investigations and write reports containing recommendations that would help correct the wrongs of the past through reconciliation and healing, the payment of reparations, criminal prosecutions, and institutional, legal and policy reforms to help prevent recurrence. And in the event that their recommendations are not implemented, or are only partially implemented, their transformative effects on the society would remain negligible.
It was an early recognition of these pitfalls of previous truth commissions that made it possible for The Gambia’s Truth, Reconciliation and Reparations Commission (TRRC) to develop an institutional structure, operational procedures, and strategic communication plan that rendered it among the world’s if not the world’s most transformative transitional justice process so far. In the next session, we will examine this aspect of the TRRC’s work in greater detail.
Note: Baba G. Jallow is former Executive Secretary of The Gambia’s TRRC |
| 1 L A T E S T R E P L I E S (Newest First) |
| Momodou |
Posted - 16 Jun 2022 : 00:28:34
Transformative Transitional Justice: The key to sustainable peace and Never Again – Part 2
By Baba G. Jallow
Every truth commission is an embodiment of multiple entities. It embodies the various aspects of the body politic in which it operates as well as any external entities that might have been affected by the human rights violations and abuses it is tasked to investigate. For example, in the case of The Gambia, the TRRC was an embodiment of the government, the people, and other governments and peoples (such as Ghana) that were affected by the human rights violations of the Jammeh regime. Within these categories, the TRRC embodied the personas of both victims and perpetrators. The fact that truth commissions embody all these different entities is why their independence and impartiality cannot be compromised if they should have any credibility at all. Where the violations reach the threshold of crimes against humanity, the truth commission will also embody the interests of the international community.
In addition to being an embodiment of these different entities, a truth commission is by nature Janus-faced: it faces both the past and the future at the same time. It looks to the past to discover what went wrong and to create a true historical record of such wrongs, and it looks to the future to ensure that the wrongs of the past are not be repeated. Through research, investigations and hearings, a truth commission uncovers the scope and nature of past atrocities. Through its findings and recommendations (and in the case of the TRRC its robust outreach activities), a truth commission brings out the systemic and cultural causes and enablers of impunity and points the way forward to a future of respect for human rights, human dignities and the rule of law, and a future in which the administrative, institutional and policy options of the society are designed and executed in an efficient and equitable manner.
A Janus-faced embodiment of different entities, a truth commission is also the impartial moderator of a crucially important and sensitive national conversation on the past and the future of a society. This is an extremely important function whose recognition and efficient execution determine the extent to which a truth commission has transformative effects on society. How effectively the truth commission moderates this crucially important national conversation is determined first, by its self-recognition as a transformative transitional justice mechanism; second, by the institutional structure it creates in order to maximize its efficiency; and third, by the communication strategy it develops and executes in order to effectively moderate the national conversation over past human rights violations and how best to prevent recurrence.
The historical evidence suggests that up until the emergence of the Gambian TRRC, not enough thought was given to these three prerequisites for the existence of a transformative truth commission process. This is not to say that significant successes were not registered by truth commissions in the past. Truth commissions in Latin America, such as the ones in Argentina, El Salvador, Chile, Guatemala, Nicaragua and elsewhere did a brilliant job of uncovering mass human rights violations and making recommendations that led to some prosecutions and a level of public determination to ensure non-recurrence. Significant successes were registered by some truth commissions in Africa such as the South African Truth and Reconciliation Commission (1995), as well as truth commissions in Chad (1990), Nigeria (1999), Rwanda (1999), Sierra Leone (1999), Ghana (2002), Morocco (2004), Kenya (2008), and Tunisia (2013), among others, especially in terms of uncovering the scope and nature of human rights violations in their recent pasts and of submitting final reports and recommendations to the establishing authorities. Levels of implementation of these recommendations varied widely, with several truth commissions having their reports and recommendations suppressed by the government, simply neglected, or only partially implemented.
A classic example of a successful truth commission was Argentina’s “National Commission on the Disappeared” (1983). Its work led to the prosecution of several perpetrators and its final report, published as Nunca Mas (Never Again), was a best seller in Argentina that galvanized the people against dictatorship and human rights violations and inspired the formation of truth commissions in other Latin American countries. South Africa’s Truth and Reconciliation Commission (1995) also registered significant successes, although to this day, the South African government has failed to complete the payment of reparations to victims or to implement other important recommendations made by the TRC. A classic example of a failed truth commission was Uganda’s “Commission of Inquiry into the Disappearances of People in Uganda” (1974). When the four-man commission submitted its final report to Idi Amin implicating his government in the disappearances and other rights violations, the Pakistani judge who chaired the commission was sacked from his job, a second commissioner was accused of treason and hanged, and a third commissioner fled the country. A second Ugandan truth commission, the “Commission of Inquiry into Violations of Human Rights” set up by President Museveni existed for over 10 years without making much headway.
Nearly all of the above truth commissions operated in the traditional mode of the truth commission as a body that simply investigated past human rights violations, produced a final report and made recommendations for criminal prosecutions, reconciliation, reparations and reforms designed to help prevent recurrence. They were all truth commissions in which most of the work of research and investigations, outreach, and listening to and recording witness testimonies was done by the commissioners themselves, supported by a thinly-staffed secretariat. Often because of the sheer volume of work involved and the limited time and resources available to them, the transformative impact of most of these truth commissions on society was modest or almost negligible. Yet, the magnitude of a truth commission’s transformative effects on society may be an important indicator of the extent to which human rights violations may be prevented from recurring in that society.
In a radical departure from this traditional model of truth commissions, the Gambian TRRC created an institutional structure, operational method, and strategic communication processes built on the twin principles of inclusivity and transparency that allowed it to be visibly transformative well before the completion of its work and submission of its final report and recommendations to the Government. The arrangements put in place – some under the TRRC Act and some at the commission level – allowed the TRRC to remain a fiercely independent embodiment of all relevant entities, to be a Janus-faced creator of an impartial history of human rights abuses, and to be a proactive and neutral moderator of an important national conversation on what went wrong in The Gambia under Jammeh and how best to prevent its recurrence, a principle best captured in the commission’s now widely adopted Never Again slogan.
Note: Baba Jallow is former Executive Secretary of The Gambia’s TRRC |
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