Transitional justice and national reconciliation – wishful thinking or a way forward?

Lecture given by Stanley Henkeman in Suriname as part of his visit to support the work on justice and reconciliation that was started by the International Institute for Scientific Research. For information on this work click here.

Stanley Henkeman
executive director of the institute for justice and reconciliation
25 October 2016

HenkemanSurINTRODUCTION

Good evening ladies and gentlemen.

It is a wonderful and rare pleasure to join you this evening to deliver this lecture on a topic that is close to my heart, the mandate of my organisation, the Institute for Justice and Reconciliation and indeed my country, South Africa.  I do believe that the content will also find resonance with you as Suriname attempts to deal with its challenges in making sense of the past.  A sincere word of thanks must go to Mr Sandew Hira, Director of the Institute for Scientific Research, and the Committee of Victims and Bereaved of Victims of Political Violence, ably led by Mr Humphry Jeroe, who were instrumental in getting me to come to your beautiful country.  Thank you to the University of Suriname for the gracious invitation to deliver this lecture.

In this lecture I will attempt to locate Transitional Justice within a human rights framework, the type of justice that works best in countries going through transition and national reconciliation as outcomes of effective TJ processes.

LOCATING TRANSITIONAL JUSTICE

Human Rights have undergone radical shifts in recent times.  30 years ago it was the norm to focus almost exclusively on stopping abuse, liberating unjustly arrested prisoners and reducing the occurrence of serious incidents of human rights abuses. Today, while still monitoring, denouncing and reporting abuse, human rights groups offer practical assistance, recommend achievable policy prescriptions and engage in seeking long-term institutional mechanisms that will prevent human rights violations in the future.  This shift from criticism and denunciation to solution-seeking reflects a growing interest in the need for justice in societies undergoing transitions.  There is a growing acknowledgement that how we deal with the past says a lot about the society we intend to build.  Transitional Justice allows societies to find ways to, firstly, heal from the atrocities of the past that often left wounds in the fabric of society.  Secondly, the human rights movement, through its own evolution from going it alone to including victims groups who, in turn, included human rights discourse in their struggles contributed to the increased quality of democracy.  Third, the impact of freedom of expression on circles of societies gave credence to the agenda of human rights groups.  Fourthly, human rights groups have been able to keep the need for truth and justice alive, and finally, transitional justice principles emerged because the plight of the human rights violations is too important to ignore.

In writing the foreword to three volumes titled, Transitional Justice in 1995, Nelson Mandela, newly elected President of South Africa remarked,

In recent years there has been a remarkable movement in various regions of the world away from repressive rule towards the establishment of constitutional democracies.  In nearly all instances, `the displaced regimes were characterised by massive violations of human rights and undemocratic systems of governance.  In their attempt to combat real or perceived opposition they exercised authority with very little regard to accountability.  Transitions in these countries, therefore, has been accompanied by enormous challenges.  While it has signified renewed hope and aspirations, it has at the same time brought into sharp focus the difficult choices that these countries would have to make on their road to democracy and economic progress.

Let me make it clear that transitional justice is not a contradiction of criminal justice.  It is an honest and convenient way of describing the search for a just society in the wake of undemocratic, violent and oppressive systems.  It seeks a deeper, richer and broader view of justice that will essentially do three things,

  1. Confront perpetrators
  2. Address the needs of victims, and
  3. Assists in the start of a process of reconciliation and transformation.

In essence, transitional justice attempts to complement retributive justice with restorative justice, and it is both retrospective and prospective.  Some of the key pillars of transitional justice include,

  • No society can claim to be free and democratic without the strict adherence to the rule of law.  The advantages of legal prosecutions include, preventing perpetrators from returning to power, punishes those who bear the greatest responsibility for human rights violations and it avoids summary justice.

 

  • Truth Recovery. The South African Truth and Reconciliation Commission, in its final report, distinguishes between four kinds of truth:

 

  • Objective, factual or forensic truth
  • Personal or narrative truth. Through the telling of their stories the human and civil dignity of victims were celebrated.
  • Social or dialogical truth. This truth of experience is established through interaction, discussion and debate.  The success of this truth is underpinned by transparency, democracy and participation.
  • Healing and restorative truth. Archbishop Desmond Tutu, Chairperson of the South African Truth and Reconciliation Commission, makes the point that asserting the ‘eye for an eye’ principle will result in the creation of a lot of blind people instead of healing the wounds of the past.
  • Reconciliation is better understood through a transitional justice lens.  It stands a better chance if victims feel their grievances are being addressed, that their cry is being heard and that the silence is being broken.  Reconciliation can begin when perpetrators are held accountable, when truth is sought openly and when the need for reparations is acknowledged and acted upon.
  • Institutional Reform. The success of truth commissions is often helped or hindered by the proportion of attention given to individuals and institutions.
  • In the context of transitional justice reparations must go beyond external, temporal financial compensation and must address, among others the counselling and healing of victims, the healing and rehabilitation of perpetrators, narrowing the gap between rich and poor and it must promote human rights and democracy.

A JUSTICE THAT DEALS WITH THE PAST DIFFERENTLY

One of the pitfalls of transitional justice is the danger of too much or too little justice.  The former holds the potential of precipitating a backlash from perpetrators capable of undermining the democratic process in its earliest and most vulnerable stage.  The latter could frustrate the need of victims and survivors to come to terms with the past which, in the long term, might come back to haunt the country.  Trials, while necessary, are often insufficient to deliver justice for all because it neglects the restoration of relationships and preserving the material well-being and dignity of victims.  Transitional Justice, I contend, must find an alternative to unbridled revenge while still bringing perpetrators to book.  Deterrent justice has a place in seeking to prevent atrocities in the future.  Rehabilitative justice addresses the needs of perpetrators as no nation can afford unrehabilitated torturers and killers.  Compensatory justice addresses the importance of beneficiaries of the old order sharing in programmes of restitution.  Justice as affirmation of human dignity recognises the equal dignity of all people. Finally, justice as exoneration affirms the need to set the record straight where people have been falsely accused by the state or within their own communities.  The application of these imperatives provides a viable basis for restorative justice which has as its aim to make things right between adversaries and find the best route to a better future.  Restorative justice, in sum, may enhance processes of truth, justice and reparation by preparing individuals and communities to confront the necessary balance between justice and peace; between truth and forgiveness; between the interest of the victim and the need to re-integrate the perpetrator in society.  In transitional justice parlance retributive and restorative justice complement each other – you can’t have one without the other.

LEARNING TO LIVE TOGETHER

Transitional justice, if honestly and correctly applied, has the potential to lay a foundation for reconciliation.  It must, however, never put pressure on the victim to forgive in the interest of national healing but should put in place measures that will help victims to find out the truth and take responsibility for their own lives, in their own time.  There is a ‘but’ that I have to surface.  It is important for victims to, for their own sake, get on with their lives.  The biggest revenge lies not in the punishment of the perpetrator but the ability of the victim to go forward and succeed in life and in that way reclaim their human dignity.  The alternative is internalised pain manifested in cycles of hatred and revenge which Nelson Mandela describes as taking poison and expecting your enemy to die.

If we deal with the past we create future opportunities.  In my own experience as an activist I allowed myself to be governed by fear and hatred. When I consciously decided to elevate the morality of my struggle above my fear of arrest, torture and ultimately death I crossed a threshold which was far more emancipating than casting my first vote in 1994 at the age of 36.   Two years later I left my job as a lecturer at a teachers training college to pursue my new passion of working for justice and reconciliation.  I share this with you because I have learnt that the alternative to the prison of hate and revenge is enlightenment for self and your society.  Reconciliation has become more than a buzz word.  I now initiate reconciliation through managing conflict, change and diversity.  I am part of a growing movement in South Africa that communicate reconciliation through deep and sustained dialogues in all sectors of society.  The Institute for Justice and Reconciliation, an organisation I am privileged to lead, understands the importance of practising reconciliation by, among other things, promoting socio-economic justice.

Reconciliation as a concept, process and outcome is not without controversy and confusion.  It assumes a relationship in the past which is not always the case.  The United Nations Development Programme, acknowledging the contested nature of the term, suggests a broad conceptualisation which can accommodate different perspectives.  They highlight five key features that should be reflected in reconciliation processes.

  1. It must be future-oriented

While it has to acknowledge the past by identifying the underlying causes for the impasse reconciliation must deliberately set out to transform relationships.  The chances of dealing with the past increase significantly against the backdrop of a vision for the future.  The question is not whether we should not talk about the past but rather how best we can put the past on the agenda without getting embroiled in verbal brawling and finger-pointing.  I put it to you that accountability is better served when there is a desired, shared future.

  1. It must be justice-focused: The well-used adage of ‘no peace without justice’ remains relevant. Reconciliation that does not deal adequately with issues of impunity, revenge and dealing with the pain of the past is doomed to fail.
  2. It has to be gendered: Women are often the section of societies that are humiliated, violated and abused in unspeakable ways. Reconciliation processes are doomed to fail and rendered ineffective if they do not take the role of women seriously.   Addressing and confronting barriers to the emergence of voices of women and girls.  The tension between cultural sensitivities and the rights and involvement of women should be central in a gendered approach to reconciliation.
  3. It must be locally-owned: The success of the South African reconciliation project, while still facing many challenges, can be attributed to the absence of direct outside interference. Like SA, Suriname should learn from others, like me, but chart their own course.  Any assistance should be aimed at empowering and capacitating local ownership.
  4. It must be comprehensive: It is crucial that reconciliation should not be confined to one thing only.

Let me say something about dialogue as an important and critical component of transitional justice.  There is no alternative to dialogue to create a future that is owned and celebrated by all.  Dialogue holds the potential to shirt the way we communicate – from thinking alone to thinking together.  It need to be taken beyond the need to talk basis to a sustained and institutionalised mechanism.  If there is a commitment to inclusive and comprehensive dialogue it could result in many positive outcomes such as addressing challenges in real-time, mitigation of potential conflicts and a future-focus agenda.

CONCLUSION

Any individual, any community, any country that wants to move forward must replace cycles of violence, exclusion and hatred with cycles of inclusion, peace and reconciliation.  The future, while informed by the past, cannot merely be an extension of the past.  Societies are often so busy dealing with the dark night that they do not prepare adequately for the dawning of the new day.  Ben Okri gives us a timeous,

What is true is that no one will hand us the destiny that we want.  No one will carry us to the future that our bones and our history crave for.  We must do it ourselves.  The renewal of a people is a miraculous thing.  And it happens when a great new idea takes root in a people; when they see the image of themselves not as they were but as they can be.  It is a renewed self-vision.

Let us raise one another.  You have something special to give to the world, and the gift of your genius, our genius will be revealed not long after we claim the right to be ourselves.  We can be no one else.