... 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.
03 August 2009
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
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.