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31 August 2009

To be or not to be: Talking transitional justice in Zimbabwe

This is a guest article by Tawanda Sachikonye. Tawanda is a graduate student at Rhodes University, South Africa.

"We have just started a new life after years of fighting each other and insulting each other. We have said let's give peace and harmony a chance and work together."- President Robert Mugabe (Telegraph March 2009)

I have decided to start this short piece with President Mugabe’s profound and humble words spoken at Susan Tsvangirai’s (Prime Minister Morgan Tsvangirai’s wife) funeral. Susan had just recently died in a tragic road accident. Mugabe used the occasion to give hope and assurance to the people of Zimbabwe during a time of sorrow and uncertainty. Symbolically, the funeral was for all those who had lost family, friends, and colleagues during the unprecedented harrowing violence that had taken place during and immediately after the 2008 Presidential elections. The events that escalated in 2008 epitomized what many labelled the classical failed state- with the former bread basket of Southern Africa brought to its knees. The objective of this piece is to briefly discuss the urgent and sensitive issue of transitional justice in Zimbabwe. More bluntly I will be asking, after several years of political turmoil is transitional justice possible? And if it is, the form it will most likely take.

With regards to the first concern: whether transitional justice is possible - the short answer is yes. This is because all the leaders of the unity government admit that the country is in need of healing and progress after the trauma and upheaval of the 2008 Presidential elections. This is shown by how the unity government has established the “Organ for National Healing, Reconciliation and Integration” (ONHRI) , a structure meant to guide the nation through the reconciliation process (BBC News July 2009). The creation of such an organ and input from both parties; ZANU-PF and MDC show an effort to initiate national unity and reconciliation. Whether the effort will be consistent and genuine so as to succeed on some level is yet to be seen. At Susan’s funeral Mugabe also stated, “To our supporters we want to say violence should stop. That’s what (Mrs) Tsvangirai would have wanted, for us to co-exist peacefully" (Telegraph March 2009). This statement by the president is important in two respects. Firstly it is an admission that violence had taken place during the Presidential elections but one can also possibly assume even prior to that, and in relation to past elections as well. An admission of wrongdoing, the first step in any reconciliation, by Mugabe is vital in that it is an act of humility and surpasses the crushing blow of denial. Other governments in various parts of the world have denied or silenced their use of political violence and in doing so have denied their people a sense of emotional and mental closure. Secondly, Mugabe’s words are important in that he is asking for the violence and animosity to stop so as to allow for peaceful co-existence, this hopefully an indication of tolerance and a willingness to work with previous enemies. Mugabe quite recently stated, “There are still reported cases of political violence and these must stop… We will commit members of our party in observation of the principles of non-violence. You should not succeed through violence but the efficacy of your political theory and your campaign” (Reuters July 2009), these words seem to reinforce the notions of non-violence and peaceful co-existence. In light of this it appears that reconciliation is possible. But of course all of that depends on the transition from rhetoric to action, which for all Zimbabweans is the bottom line.

The form the reconciliation and transitional justice might take is difficult to ascertain so early in the process especially when tensions between more hard-line ZANU-PF members and reform-minded MDC members are still salient. However there have been some clues. Prime Minister Tsvangirai stated "justice needs forgiveness… and if we do retributive justice, the danger is that we may slide back” [towards violence] (BBC News July 2009). In the same BBC News article, John Nkomo a senior member of ZANU-PF and chairman of the ONHRI stated, "Yes, people were killed; yes, people fight; yes, they may still be fighting, but… this nation is going through a process and these tensions, unless properly managed, could create more tensions for us and we don't want that." It becomes clear from these two statements that the ‘justice’ that is to be practiced in Zimbabwe will have to be reconciliatory in nature as opposed to seeking retributive justice. The most famous model of this approach is that of Zimbabwe’s neighbour South Africa with its Truth and Reconciliation Commission’s (TRC) approach where what was emphasised was national healing, forgiveness and closure as opposed to punitive measures. In February Tsvangirai said, "This nation needs national healing. It has endured so much violence. Let's forgive those who have transgressed against us” (Mail & Guardian February 2009). These words once again reiterate transition based on healing and forgiveness.

For Zimbabwe, reconciliation is possible and will probably take place, especially since wrongdoing has been admitted and humility shown, at least at the leadership level. It is just as important not to paint the MDC as ‘innocent and pure’ in relation to ZANU-PF so as to avoid polarization, as it is to avoid “othering” and vilification. The “justice” that will accompany the transition in Zimbabwe is likely to be reconciliatory given the statements by leading political leaders. The most important question however will be if this is in sync with the needs and desires of the Zimbabwean people. Will they be satisfied and “healed” by words of forgiveness and confessions uttered to facilitate closure? For those who lost their love ones or suffered grievous bodily harm this is a difficult question to fathom. This is why it is important that the concerns of transition and justice in Zimbabwe should include the input of the Zimbabwean people to a greater extent as they are the ones who have suffered and been affected by the violence and fear that has plagued their country for so long.

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24 August 2009

In Semenya's shoes: The deconstruction and reconstruction of gender and sexuality

by Bose Maposa and Siphokazi Magadla

For any track and field athlete, the World Championships are the main event, the center stage to prove their worth in the world league and claim their place amongst the greatest. Qualifying to attend these games is an honor in itself; winning a medal a glory; whilst a gold medal is the ultimate dream. One cannot begin to imagine what this could mean for an 18 year old first timer. But for Caster Semenya, the South African teenager who has emerged into the international headlines for breaking the 800m running world record this monumental moment has been overshadowed by the international outcry she has caused. The Semenya 'saga' has forced even those who do not care much for sports to pick sides (with her or the International Association of Athletics Federations (IAAF)) after she was asked by the athletics body to undergo a gender test.

She has received different names and caused varied reactions, from '
Ms/Mr Semenya' in an attempt to ridicule her to 'Yes indeed she is a woman, but maybe an ugly one' in attempt to defend her. Some have even swayed from discussing the gold medalist and turned to talking more about the performance of her runner-up in the finals. Some have accused South Africans and other Africans who have come to her defense as blindly nationalistic or as Marx said under the spell of 'false consciousnesses'. While others maintain that the teenager is innocent until proven guilty, or that she remains sexless until proven otherwise, a game of cat and mouse but with no finish line is in sight. Amongst other things, she has highlighted the prejudices and the ambiguity of the fine line between gender and sexuality, and most importantly those held by the IAAF.

Gender is said to be a social construction while sex is a biological definition. As straightforward as this may seem, it is apparently not that simple. The IAAF asked Semenya to take a gender test, despite the fact that she was born female and raised as a woman (this is according to both her mother and her South African birth certificate), as this does not automatically qualify her to be a female in their standards. Let us note that they do have a set of conditionalities- biological, which determine where one falls in the gender category. Presumably Semenya and her family's conviction about her feminity are based on those simplistic social characteristics that we demand from everyone primarily the genital location of the person not just appearance. But the IAAF wanted an investigation seeking to go beyond these social requirements, that is to find out if Semenya has unusually high levels of testosterone, even though she is a woman, which give her an additional advantage over other female competitors. Biologically this is plausible of course, but all of us know that the social implications of this question are fundamentally problematic. Apparently for strength and athletics, at the end of the day this social construction of gender and sexuality does not matter and the distinction lie in hormones.
Telegraph Sport revealed that she has three times the normal level of testosterone in her body for a female, but comprehensive results will be available after a couple of weeks.

When the races are over, she has to come back and live within her society. The tests prove that she has this hormonal imbalance so does that in our eyes make her a man? In which category would she run in the future? How should she lead her life from now on, as a man or woman? Is she supposed to slip into a dress or stick to just pants? How can we expect the family of a teenager from rural South Africa to have this biological understanding of their daughters’ anatomy, or anyone's family to conceive of such questions?

Though Athletics South Africa (ASA) has come out to defend her (and even had to go as far as begging her to go to the podium to accept the medal) one cannot help but wonder about the extent of this defense? Could they have done a better job? A
BBC article reported that the IAAF claimed that it had required the gender test three weeks prior to the event. Nonetheless, ASA did not oblige. Additionally, though it has not been established just how close the Head Coach of the South African Athletics team was working with Semenya, Telegraph Sport reported that the coach has been in the past involved in scandals regarding hormonal enhancements and doping activities. Was ASA right in hiring someone with such a past?

How can we use Semenya's personal humiliation to re-negotiate sexuality and gender? French feminist Simone de Beauvoir is famous for having declared "one is not born but becomes a woman." As an athlete Semenya is expected to be extraordinarily fit, build muscle that goes beyond those of ordinary women. In doing so, did Semenya fail to become the woman that de Beauvoir speaks of? How should women in sports distinguish themselves as athletes but still conform to our societal expectations of womanhood? Let us not also ignore the fact that this issue highlights the fascinating notion of the relation between gender and race; the core of both concepts being power. Is it a coincidence that many of the social networking groups in support of Semenya also see themselves as defending African women in particular, not just women as a group?

With the soccer World Cup in South Africa just around the corner, can South Africa really afford to be consumed by such international headlines? Alternatively, what does the behavior of the IAAF in the handling of this matter say about our international institutions in their ability to do their job without sacrificing the respect and dignity of athletes and humiliate them as it has occurred with Semenya? The power of sports lies in its ability to construct identities, form values, combat developmental challenges and bring about behavioral change. As we look forward to the World Cup, we hope that the event will help construct African identities and positive African images. We hope that Semenya (regardless of the gender results) will be a stifling force to fight gender prejudices within the sports arena and act as an opinion leader to help mitigate these social ambiguities.
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16 August 2009

Kenya and the fate of political cohabitation: Why a TRC might not work.

This is a guest article by Maingi Solomon. Maingi is a graduate student at Ohio University.

Cohabitation is usually a temporary arrangement which is meant to achieve certain collective short-term interests. Political cohabitation is not peculiar to the world or Africa. It is indeed an integral part of the history of politics and political power. If we open our eyes to the Rome of the 50s BC for example, we see a period of political disaster. The Roman senate failed to counter the first triumvirate which was an informal alliance of Pompey, Crassus, and Julius Caesar. Gang warfare was commonplace in Rome and holding elections was almost impossible. After Crassus was killed in the Roman defeat in 53 BC at the hands of Parthians, Pompey and Caesar fell out. In 49 BC Caesar, later to be assassinated in 44 BC, crossed the Rubicon and marched on Rome starting a civil war that lasted three years. After his assassination there was a fresh round of civil war between the assassins and the Caesarian party led by Antony and Caesar’s grand-nephew and adopted son Octavian. The defeat of Brutus and Cassius in the civil war gave way to the second triumvirate (Antony, Octavian, and the aristocratic general Lepidus).

I would say that this sounds like today’s Kenya. During the run up to the 2002 national elections, opposition leaders knew that the only way to defeat KANU (Kenya African National Union) was through a united opposition. In early 2002, even before the then president Daniel Arap Moi announced that the KANU candidate would be Uhuru Kenyatta; Mwai Kibaki, Michael Wamalwa, and Charity Ngilu formed the National Alliance for Change which was later registered as the National Alliance Party of Kenya (NAK). Many were skeptical about the ability of the three leaders to come up with a single presidential candidate to counter Moi’s choice. However, if they were willing to swallow their pride the other question was how would they convince party supporters to support the single chosen candidate? The dismissal of the then Vice-President George Saitoti and the defection of powerful ethnic leaders from KANU to form the Liberal Democratic Party (LDP) significantly weakened the party. KANU’s ethnic formula crashed.

When LDP and NAK merged before the 2002 elections to form the National Rainbow Coalition (NARC), a win for the opposition was almost inevitable. The fronting of Kibaki as NARC’s captain was widely seen as a move to split the Gikuyu vote between him and Uhuru. Therefore, the formation of NARC and the fronting of Kibaki was solely a strategy to win the elections. NARC was controlled by a bunch of powerful ethnic chiefs who led the party and had made a power sharing Memorandum of Understanding (MOU) which was supposed to be honored in the sharing of spoils after the anticipated win. According to the MOU, Kibaki, the president, was supposed to be one among equals in the NARC SUMMIT, the most powerful organ of the party. The biggest problem with the MOU was that it was not legally binding. When Kibaki became president, he trashed the MOU and therefore fell out with the NARC SUMMIT.

Long before Troy burned, several Achaean princes including Achilles, Agamemnon, Menelaus and Odysseus were attracted to the beautiful Helen. These men however understood one thing: that only one of them could marry her. When Menelaus won her, they swore to destroy whoever tried to take Helen from him. So when Paris stole Helen from Menelaus, his fate was sealed. When Kibaki trashed the MOU, his fate was sealed. In doing so, did he sacrifice some Kenyan lives to save himself from his nemesis?

Towards the end of December 2007, Kenya held a historic flawed election. This election was characterized by delaying of counting results for certain regions which were considered strategic for some parties, and sometimes surprisingly exaggerated voter turnout in some regions which implied that even the dead had risen to vote in this historic election. Party of National Unity (PNU) was hastily declared the winner and president Kibaki was hastily sworn in at state house in the evening at 4pm. We all know that Kibaki knew that this was dangerous. The country degenerated into violence in the days that followed. For more than a month, Kenyans turned against each other, the police and other government security agents turned against Kenyans, the politicians cheered! It was time to spill some blood and settle some ‘historical injustices’. That was foolish but the lessons were valuable. After these happenings, a second GNU was born in Kenya.

The desperation of both the (PNU) and the Orange Democratic Movement (ODM) to win the 2007 vote was driven by greed on the one hand and the desire to settle political scores on the other. It should be remembered that Kibaki’s failure to honor the MOU led to a constitutional campaign that was more focused on individuals than institutions. Those who argued for a powerful president did so with Kibaki in mind while those who argued for a ceremonial president and an executive prime minister did so with Raila in mind. When the people finally rejected the constitution in the referendum, Kibaki fired the LDP group which had spearheaded the opposition to the manipulated constitution. This group regrouped to form the Orange Democratic Party of Kenya (which later split to form ODM and ODM-Kenya).

Politics in Kenya has been dangerously ethnicized. All policies, appointments and other key decisions of government are made with ethnicity in mind without consideration of qualifications. Due to this polarization, for any party to win the general election, it must have an ethnic formula. These ethnic formulae usually bring together ‘tribal chieftains’ who are supposed to provide the numbers from these communities in exchange for a strategic position in government and at least some hope of clinching the ultimate post some day, The Presidency. Governments made out of these arrangements are often unstable because if a chieftain decides to withdraw support for the government, most of the members of parliament from that community will also withdraw. Unfortunately, NAK, NARC, LDP, ODM and PNU were all made with this formula in mind. Under this political climate how can we expect justice for the thousands of Kenyans who became the sacrificial lamb of the political violence of 2008? Even more compelling to ask, how can we build national reconciliation for the future generations if the pillars of governance are so deeply polarized?

After the end of the Moi era, Kenya has conducted two elections which have led to two coalition governments. Both of these governments have been deemed failures. The first one was a friendly Government of National Unity (GNU) made by political cons while the second was forced by ‘extraordinary circumstances’ which were not so extraordinary as they were planned. These coalitions have brought together politicians with voting blocs who view each other as equals and so the front runner only gets the presidency for the group. The current crop of politicians was all Moi’s students who were always controlled by him. In Moi’s absence, these politicians act like a herd of goats without the herder. This is because although Moi played ethnic politics, he was a powerful dictator who maintained control over his ethnic point-men. All his ethnic front-men feared and adored him and they were rewarded for that. During the Moi regime, he was equal to the presidency and all the power was accorded to him. When and how Kenya is going to have a leader who will represent the people of Kenya and not a bunch of greedy people who eat on behalf of their communities, only God knows. By all means winning political power in Kenya should not be like winning the adoration of the beautiful Helen of Ancient Rome of which all the men of Rome fought for, and certainly not worth the lives of Kenyans slaughtered in political plunder.

How can we break this dangerous chain of masters and apprentices? These questions are not only critical for Kenya but for the questionable fruits of the arranged marriage of Mugabe and Tsvangirai in Zimbabwe, even more so for the poor Zimbabweans who lost their lives and votes, without an option to pick which position most suited them in the cabinet. How does their justice look like if the governments of national unity are only the marriages of elites? As the Romans would say ‘cui bono’ (to whose benefit)? For whose interests are all these marriages if certainly not for the nation? And most importantly, can we trust them to abide by the mandate of the TRC or a special Tribunal should either be finally restored, and honestly bring truth, justice and reconciliation to their citizens?
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10 August 2009

The Electricity Question

by Damilola Daramola

Looking ahead to the World Cup in 2010, is South Africa ready to host the event? Some of the organizational hurdles facing South African organizers include security, health and the overall status of infrastructures within the country. One of the most important infrastructures in a country which is hosting a global sporting event is that of electricity. Has South Africa made all the improvements needed to provide adequate and stable power supply during the duration of the World Cup?

Eskom is the publicly-owned company that provides 95% of South Africa’s electricity. According to Eskom's website, there are currently 19 power stations with a total capacity of 41.6GW (1GW = 1,000MW = 1,000,000Watts). Fifteen of these power stations are thermal i.e. energy is provided by steam or hot gases that are derived from nuclear, coal, oil or natural gas,while the remaining four stations are hydroelectric (dam-powered). These hydroelectric stations only provide 5% of the total capacity (41.6 GW) while the fossil fuel (coal, gas and oil) power stations provide 91% of Eskom’s capacity. These fossil fuel power stations are also the source of air pollutants. Notwithstanding, South Africa had been able to meet the expected electricity demand with a reserve capacity 16% as of 2006 (Ministry of Minerals and Energy (DME) Report).

In January 2008, problems began to arise as an increase in energy consumption (4.31%) and peak demand (4.90%) between 2006 and 2007 reduced the reserve capacity to 10% (DME Report 2008) and resulted in numerous blackouts. Although a 4.90% increase in demand may not seem like a high number, this is equivalent to 1706MW. Taking into consideration that the average Eskom power plant has a capacity of 2191MW, this increased demand is almost equivalent to the capacity of a power station.

A recent Reuter’s article (April 2009) shows that South Africa has been able to meet the increased energy demand, although this did not become possible until April 2008. How was the increased demand met? According to Eskom, three of its previously decommissioned power stations had to be returned to service. The Minister of Minerals and Energy, Buyelwa Sonjica, mentioned that without a healthy 17% - 20% reserve margin, South Africa would be at a risk of even more blackouts if there was a sudden increase in power demand (Reuters Article). This is a valid problem since South Africa’s economy continues to grow, leading to an increase in electricity demand. In the short term, it appears that the demand increase due to the World Cup will be met as there are still power stations being returned to service as previously mentioned. However, what will happen in the long term?

According to the aforementioned Reuter’s article, Eskom has pledged $37.19 billion to a five-year investment program. This begs the question, how should or will the money be spent? As mentioned earlier, most of Eskom’s power generation is fossil-fuel based and South Africa already generates 42% of Africa’s emissions. How can the surge in electricity demand be met while keeping in mind that greenhouse gas emission should be prioritized? A possibility is to diversify the current energy generation schemes in place that do not currently emit greenhouse gases i.e. nuclear (Koeberg power stations) and hydroelectric (Gariep and Vanderkloof power stations). Koeberg has been in operation since 1984 and Eskom admits that this is also its most reliable power station. With a time-span of 9 years from construction to operation, this appears to be a feasible option for Eskom to pursue. It should not be disregarded that the construction of another nuclear power station will raise eyebrows as nuclear power also comes with potential adverse consequences - case in point the Chernobyl accident. In addition, security is also an issue as nuclear proliferation is a valid concern. It is important that some of Eskom’s pledged resources should also go towards educating the public about the safety issues with regards to nuclear plants.

Other suggestions in improving energy production include the use of solar and wind energy. However, compared to technologies that are in place, the cost of implementing newer technologies will be costly.

African countries can learn from the problems and proposed solutions experienced by South Africa especially Eskom in power production. Problems start with generation of power supply, distribution of said power supply, mitigation of greenhouse gas emissions, ensuring that power generation meets economic growth and finally the ability to have an adequate reserve margin for moments of increased demand. Some countries are still struggling with the first and second phase of power supply. Nigeria for instance is yet to experience a consistent power supply since 1980 as mentioned in The Nation article from July 2009. As at May 2008, power supply capacity stood at 3GW although demand stood at 20GW according to Ransom Owan – the head of the Nigerian Electricity Regulatory Commission (Yahoo Finance 2008). In addition, due to the fact that electricity is essential for home needs such as powering electrical appliances, inconsistent power supply has also placed strains on Nigerian manufacturing industries. This excerpt from a bnet today article, details the amounts that businesses spend on fuel for generators alone. How can these businesses be expected to keep employees happy and still produce at a profit when so much money is being spent on an amenity that should be basic?

Overall, it appears that South Africa has been able to answer the electricity question with regards to its proposed solutions. The question remains: will the changes implemented go farther than the World Cup and extend to its citizens? In addition, what can other countries take from the changes that South Africa has made?
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03 August 2009

Contributing to the debate over Liberia's Truth and Reconciliation Commission Report

This is a guest article by Samuel Wai Johnson, a former graduate student at Ohio University

There have been more than 30 Truth Commissions worldwide, including those in South Africa, Sierra Leone, DRC, Morocco, Rwanda and most recently Liberia. However, the Liberian TRC is the first such body to involve citizens residing outside of the country in the truth seeking process. Diaspora Liberians testified in public hearings held in the United States, the United Kingdom, and in the Buduburam Refugee Settlement in Ghana. This endeavor gave the Diaspora Liberians a voice in the truth-seeking, accountability, and reconciliation process of their country.

The TRC in Liberia was established by a 2005 Act of the Legislature to foster truth, justice and reconciliation by identifying the root causes of the conflict, recommending prosecution for those responsible for the gross human rights violations and violations of international humanitarian law (occurring between January 1979 and October 2003), and establishing institutional reforms where appropriate to promote the rule of law and combat impunity. The TRC began operating officially on February 22, 2006 and on June 30, 2009 released its report. The report has sent shivers down the spines of many Liberians, evoking tensions which border on the requirements of the criminal justice system and those of non-punitive approaches to gross and systematic human rights violations that have taken place in the country. These differences also question the legitimacy of the TRC under international law. Nonetheless, Liberia may not be the first country to experience such a tension between the process of truth-telling and prosecution.

The attempt of the Liberian TRC to promote forgiveness and reconciliation without impunity can be gleaned from the recommendations in its final report. The TRC concluded that all parties to the conflict committed violations of international criminal law, international human rights law and international humanitarian law, as well as Liberian law. It therefore recommended for prosecution almost 100 individuals including former President Charles Taylor and heads of other warring factions by an “extraordinary criminal tribunal for Liberia” to be set up by government. In addition, the TRC recommended lesser punitive actions, including a 30-year ban from holding public office, against fifty political leaders and others associated with the former warring factions, including current President Ellen Johnson-Sirleaf for her support to Taylor’s war efforts against former President Samuel Kanyon Doe.

It is this portion of the recommendation that has generated tension among Liberians and split the nation down the middle. On one side of the divide, some Liberians (including those recommended for prosecution) view this recommendation as anti-reconciliatory and contrary to the spirit of the Peace Accord, signed on August 18, 2003 in Ghana, which paved the way for an end to the conflict. But this argument begs the following questions: Was the call for the establishment of the TRC in the Accra Peace Accord a design to shield individuals from criminal responsibility? Where does this leave the question of reconciliation and forgiveness without impunity? Addressing these questions is more crucial as Liberians critically review Article 97 of the Liberian constitution and the August 8, 2003 Act granting amnesty to all members of the military junta of 1980 and all elements of the warring factions in the civil war respectively, which were grand designs by the junta and members of the Taylor regime to shield themselves from judicial accountability while preaching the gospel of reconciliation. The TRC report is presently before the Liberian legislature and the President for action. However, these issues cannot be reconciled by the Legislature alone as the Legislature includes some of those individuals recommended for prosecution such as Prince Johnson, head of the defunct Independent National Front of Liberia, and Saah Gborie, a commander of the defunct National Patriotic Front of Liberia. For the Legislature alone to decide this matter will be a conflict of interest. Not even the president can be trusted to decided this matter alone as she is recommended for a 30-year ban from politics in Liberia. Madam Sirleaf bankrolled the NPFL’s war effort during the early years of the conflict only to withdraw her support later. Meanwhile, the words of Michael P. Scharf as cited by Yav Katshung Joseph in the article “Truth Commissions and Prosecutions: Two Sides of the Same Coin?” is in order here
... a country should not rush ahead with prosecutions at the cost of political instability and social upheaval or that every single perpetrator must be brought to justice, an impossible task in most countries that have experienced widespread human rights abuses. By documenting abuses and preserving evidence, a truth commission can enable a country to delay prosecutions until…the new government is secure enough to take such action against members of the former regime.
Liberians are also contending that the conclusion and determination of individuals recommended for prosecution by the TRC were rushed. They argue that the report did not demonstrate that the TRC accorded these individuals due process. However, the TRC stated that some of those recommended for prosecution, demonstrated no remorse for their actions, apart from the preponderance of evidence, while others failed to avail themselves of the hearing process. The Commission states that individuals who had admitted wrongdoings and “spoke truthfully before or to the TRC as an expression of remorse” are not included on the list for punitive actions. There is no denying that many Liberians believed to have some complicity in the tragedy that visited the nation elected not to honor the call of the TRC. In 2008 the TRC released several lists of individuals whom it wanted to hear in connection with various events in the country. Some of those listed showed up while others refused. The TRC had subpoena powers, but it decided not to use them apparently because of the resources available for the exercise of such powers. There is also no denying that some individuals turned the TRC hearing into a theatre of denials.

Using the prescription of Charles Villa-Vicencio (as stated in the post Introduction to the Truth and Reconciliation Commission (TRC) Series) to evaluate the Liberian TRC, the TRC was endorsed by civil society. There was full civil society involvement at every step of the way from the drafting and passing of the TRC Act to the vetting of Commissioners and senior staff of the commission. This prevented faction leaders from granting amnesty to themselves without any form of accountability while minimizing the impunity gap that has existed in Liberia. No wonder that factional leaders and their commanders have rejected and condemned the TRC’s report as anti-reconciliatory.

The growth in the demand for Truth and Reconciliation Commission processes around the world is due largely to the search for a transitional justice mechanism that can help a country uncover the wrongs of the past without jeopardizing its stability and ensuring criminal accountability. It also gives voice to the victims of abuse. The challenge however is ensuring that the TRC process meets the minimum criteria for legitimacy under international law. Meeting this challenge lies in the architecture of the TRC process, which includes the degree of transparency and civil society participation. In the mean time, a TRC process is not a means to shield suspected criminals from judicial accountability or an alternative to prosecution for crimes. Regardless of the bickering, Liberians recognize the significance of the TRC’s report to their history. The report compels Liberians to confront their past, in the search for answers to these questions: What went wrong? What needs to change? How would these changes be put in place? The report provides an understanding about how events in the founding of the Liberian state set the basis for the confusion that was to explode into the carnage in 1989 - 2003. Besides, the report fills out the blank spaces in Liberia’s history such as the events leading to tragic death of Liberia’s fourth President E. J. Roye. It therefore comes as no surprise that the tension over the TRC report is not about its revelation of Liberia’s past, but over the recommendations.

The truth-telling process and judicial accountability are complements and not substitutes. The two processes represent both sides of one coin: transitional justice. Liberians need to begin to see the work of the TRC as complementary to the national search for justice and social accountability. However, the work of the two should be managed in a way that one does not render the other ineffective or lead to social upheaval. This is why the government needs to move speedily in establishing the Independent National Human Rights Commission, the follow-up mechanism to the TRC. The TRC has accorded dignity to victims of the worst forms of violations in the country by listening to their stories and providing a narrative about Liberia’s past that addresses many of the unanswered questions that has haunted the nation for many years. It shall be the work of the Human Rights Commission to explore the rationality of the recommendations of the TRC in the further search for truth, judicial accountability and reconciliation. It shall also be the duty of the Human Rights Commission to take appropriate actions against those who have been determined to be liable for the gross violations of the human person and have shown no remorse for their actions during the TRC hearings. This will ensure that the TRC was not established as a clever design to shield some perpetrators from judicial accountability. It will also help the society’s effort to restore public trust in national institutions. Through these actions, Liberians would be ensuring forgiveness and reconciliation without impunity and granting legitimacy to the work of the TRC.
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Introduction to the Truth and Reconciliation Commission (TRC) Series

This is a guest article by Samuel Wai Johnson, a former graduate student at Ohio University

Truth and Reconciliation Commissions (TRC’s) are gaining prominence around the globe. TRC’s are established to help societies that have been through tragic political periods, such as repressions and civil wars, come to terms with the tragedy. Therefore, TRC’s complement a society’s efforts at restoring public trust in national governance institutions and serve as viable transitional justice mechanism that brings the benefits of justice to victims of these circumstances and the political culture. As will be seen below, the biggest challenge of this type of transitional justice is ensuring reconciliation and establishing justice for the victims.

In his work, “Reconciliation as Political Necessity: Reflections in the wake of Civil and Political Strife”, Charles Villa-Vicencio states that such a tension between justice and reconciliation and revenge, prosecution and amnesty expresses the internal struggle between deep emotions, unresolved memories and uncertain futures within both the victims and the victimizers. Thus, while TRC’s provide a forum for reconciliation and accountability for the violations of the human person, the choice of purpose for a TRC in any country is the country’s decision. To this end, Tina Rosenberg, in her work titled "Afterword: Confronting the Painful Past", in Martin Meredith, “Coming to Terms: South Africa's Search for Truth”, suggests that a country's decisions about how to deal with its past should depend on the type of dictatorship or war endured, the type of crimes committed, the level of societal complicity, the nation's political culture and history, the conditions necessary for a recurrence of dictatorship, the process of the transition, and the power and resources of the new democratic government.

The mandate of the TRC’s is to provide a balance between restorative justice and punitive justice. However, while it is argued that TRC processes are insufficient in establishing the truth of past crimes and an avenue for victim’s catharsis to promote peace and reconciliation, there continues to be increased demand for TRC processes. This growing interest might be grounded in the desire for architectures to identify wrongs of the past, and punish those that bear the greatest responsibility for these wrongs which are mostly human rights violations. Many new governments coming to power in the wake of the establishment of TRCs, according to Priscillia Hayner, author of “Same species, different animal: how South Africa compares to truth commissions worldwide”, in Charles Villa-Vicencio and Wilhelm Verwoerd, "Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa” have turned to mechanisms outside the judicial system such as TRCs to confront the horrific crimes of the past.

In the case of the South African Truth and Reconciliation Commission, the endeavour was to achieve forgiveness and reconciliation, without impunity. In support of this approach, Naomi Roht-Arriaza argues in her book, “Amnesty and the International Criminal Court”, that if perpetrators take a stand before an independent Truth and Reconciliation Commission that hears petition for conditional and accountable amnesty, they should not face prosecution. In this case, the purpose for the award of amnesty is reconciliation and not to protect a perpetrator from prosecution. This, however, raises the following question: How does a TRC process ensure reconciliation without shielding perpetrators of heinous crimes from prosecution. In answer to this question, James Crawford of the University of Cambridge states:
It’s going to require extreme care by the prosecutor. There may be some problems there with the capacity to subvert those processes if they are reasonable, and we’ll just have to hope that the institutions within the court take a sensible view about it. But complementarity extends to covering internal processes which don’t necessarily involve prosecutions of individuals, so there’s no reason why the principle of complementarity ought not to cover an appropriately constituted truth commission.
Crawford suggests that one way to evaluate the international legitimacy of a TRC is to look at the process of its legislation so that it is not just a scheme used by warring factions to sign their amnesty as they exit the stage. Was the process leading to the establishment of the TRC endorsed by other stakeholders other than faction leaders? Was it freely ratified by the successor regime? How democratic or transparent was the process? To what extent were voices of stakeholders’ especially civil society incorporated into the TRC Act? Incorporating the active engagement or participation of civil society and other non-factional stakeholders in the legislation of the TRC ensures that the creation of the TRC is not just a process that faction leaders and their commanders can use to grant amnesty to themselves and escape accounting for human rights violations they may have committed during the conflict. Alternatively, how viable can these commissions be since peace accords are negotiated by the same elites who were involved in the perpetration of conflict? To this end, Charles Villa-Vicencio suggests the following minimum criteria for evaluating the legitimacy of a TRC:
  • There needs to be convincing evidence that the majority of citizens endorse the provision as a transitional justice mechanism;
  • There should be the disclosure of as much truth as possible concerning the gross violations of human rights; - Accountability of those responsible for gross violations of human rights, recognizing that this need not to be in the form of retributive sentencing by the state;
  • The mechanism provides a form of cathartic relief or reparation to victims whose rights are suspended by a qualified amnesty provision;
  • The suspension of prosecutions in a transitional process does not serve to abrogate requirements of international law;
  • A forum in which victims and survivors may tell their stories and questions; - Prosecutions should remain an option both during and after the TRC against those perpetrators who did not adequately participate in the process.
The articles in this series are not intended to pass a judgment on the work of the work of the TRC; the intension is to examine the process of truth-telling and prosecution and the question of international legitimacy. Primarily this series intends to evaluate the contribution of the truth commissions in the state building process in Africa. Out of the 30 truth commissions that have taken place worldwide, African countries that have used this type of transitional justice include, South Africa, Rwanda, Sierra Leone, DRC, Morocco, and most recently Liberia. In addition, debates have started in Kenya and Zimbabwe about establishing truth commissions to address the human rights violations that occurred in the political violence in both countries. This is an attempt to discuss the implications of the TRC’s for the African state and thus the series will feature articles from Liberia, Kenya, Ghana, South Africa, and Rwanda amongst other countries. What lessons can other African countries emerging from conflict can learn from the experiences of these above countries? What does this mean for the evolution of the African state, the state as an entity and the citizens of that state? What are the implications for the African Union’s policy on post conflict reconstruction and development in Africa?
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