"Getting to the truth, including understanding the root causes of the dispute, and not how one convinced the members of the community of his or her innocence, as practiced in the conventional justice system is one of the main distinguishing features of the restorative justice system. The search for truth had more to do with lessons learnt, understanding the causes and advising the parties and community how to avoid in future similar problems." - Julena Jumbe
‘The Cooling of Hearts’: Community Truth-Telling in Northern Uganda (2012) - Ketty Anyeko et al.
The ultimate goal of mato oput is to restore relations between the offended clans, and thus truth-telling remains an integral part of the practice. It is a voluntary process that consists of a cooling-off period, after which representatives of the clans engage in shuttle diplomacy in order to collect confessions and establish the truth. This is followed by material compensation given to the clan that has suffered the death. The practice, which can last from months to decades, concludes with a ceremony and feast during which clan representatives share a drink made of sheep’s blood and roots from the bitter oput plant, symbolizing the washing away of bitterness between the clans.
that Acholi belief systems offer recourses to relief, conciliation and healing and, practically, mechanisms to facilitate truth-telling, acknowledgement and accountability.
Interview questions were written in English and translated into Acholi by independent professional translators. Each question was then translated back into English by translators to ensure linguistic consistency. Research officers were trained to use the same phrases and terms in the questions in order to maintain accuracy. The interviews were then given in Acholi, tape recorded, and translated into English by the research officers.
Massacres remain undocumented and, with the exception of Atiak, are generally not discussed in public for fear of retaliation by either the LRA or the Government of Uganda.
A truth-telling process involving the community that acknowledged harm done was considered by some respondents as essential for engaging the next generation in learning about what happened, and to help them become advocates for peace in the future. ‘It is important for such information to… be written down in a book so that…all the [younger] generations…know what happened and [they] avoid repeating the same mistakes that were made by their grandparents’, opined one grandmother. More urgently, people viewed the idea of a truth-telling process as necessary to prevent future conflicts between those who have returned from the LRA and other war-affected persons, a conflict potentially exacerbated by contending land claims.
A third reason persons wanted a truth-telling process was to obtain reparations, both symbolic and material. Respondents frequently cited that truth-telling was important, but not sufficient in bringing healing to the afflicted. They expressed the expectation and desire to be compensated for the deaths of their family members, both symbolically (through memorials and shrines, for example) and materially (culu kwor, compensation payment for death), to recompense for the loss of life.
Even me who lost someone, I cannot ask (LRA) to pay compensation, but he has to ask for forgiveness and he is forgiven’, explained one respondent. Others argued it was the Government of Uganda, for failing to protect the civilian population from LRA attacks, which should pay compensation
‘But it is the Government who is our father. Why can’t they compensate me?’
A final reason identified by respondents was the need to be able to move towards reconciliation. Respondents indicated that the policy of ‘forgiveness’under the Amnesty was critical to end the conflict. By embracing the spirit of forgiveness, the civilian population indicates to the rebels that it is willing and ready to reconcile with those who remain in the ‘bush’, thereby giving them confidence to return home where they will be accepted by the population. Forgiveness, therefore, is like an olive branch—awayforcivilianstoindicatetheirwillingnesstoreconcile.Itis not, however, the same as mato oput (reconciliation) which is a process involving truth-telling through mediation, acknowledgement, compensation and symbolic reconciliation. 26 As one elder explained: Forgiveness comes before mato oput.Mato oput is a ceremony that marks an end to every kind of anger that exists among the affected people. For the sake of this war I think you should forgive so that the abducted children come home and mato oput.
Truth-telling was imagined as a process wherein former LRA members, UPDF soldiers and communities would sit to discuss what happened, to explain why it happened and to identify, with the assistance of a mediator, a means of agreeing on compensation (which could be symbolic) and reconciliation (mato oput). It involves acknowledgement of what happened. ‘In Acholi culture, truth means being open and talking freely, confessing for the wrong committed against others. It also means acceptance for what you have done and agreeing to correct that wrong that has occurred’, 28 we were told. Indeed, the Amnesty Act does contain provisions to promote community-level reconciliation.
The truth is not enough. When the truth has been told and the perpetrator has accepted his mistake, then he must also fulfil cultural demands. He must go ahead to culo kwor and have mato oput so that there can be mato oput, because when oput has been drunk it washes away all the impurities. Truth-telling should be accompanied by mato oput, and then there will be no problem afterwards
Elders interviewed also emphasized the importance of ceremonies such as the cleansing of areas (for places like Atiak and Koch Goma, where people were massacred in large numbers and the bones of people still lie at large), the cleansing of individuals who killed during the conflict, and welcome home ceremonies (such as nyono tong gweno, 30 which has already been used in the re-integration of returnees):
If you kill a stranger in secret, or a wild animal in secret
Nyono tong gweno literally means, ‘stepping on the egg.’It is a ceremony meant to ritually purify persons who have returned home from an extended absence because of war, school, or other reasons
a series of interlinked processes of truth-telling
While respondents expressed a strong ‘need’for truth-telling, they also cautioned that such a process was inherently complicated by several inter-related factors, including the political climate of silence and fear in the country, and the complexity of victim–perpetrator identity at the community level. The following section discusses each in turn.
This fear is substantiated by the fact that both sides have been responsible for atrocities, and it is well known that civilians are often subject to violent retaliation if they are perceived to be cooperating with either party
I have a lot of fear of the barrel of a gun and as such I would prefer to protect my life other than think of complaining’.
Additionally, truth-telling may provoke revenge against perceived or real perpetrators who have been given amnesty and are now settled within local communities.
In at least one case (Koch Goma) returnees’public confessions led to revenge mob killings of the individuals. Two other cases identified by researchers were of former LRA rebels that desired to confess publicly (Anaka, Pajule), but their clan members, for their own protection, prevented the individuals from doing so.
Other respondents warned that unless there is a mechanism to ‘cool hearts’, then reminding people of the past may lead to renewed tensions and violent aggression within the camps.
Third, respondents fear that a truth- telling process would negatively affect the Amnesty and, at the time their responses were collected, the on-going peace process in Juba, South Sudan.
‘You see, in truth, we are pleading with these people to leave the bush and come back home. But if they get to hear that we are calling them back so that they can tell us the wrongs that they did, then they will not come back home’.
Researchers observed that where the Amnesty is a government policy, grassroots persons often fear speaking contrary to this policy in public; that is, elaborating on what forgiveness might entail—for fear of being accused of working against the Amnesty. For this reason, the respondents were asked whether or not a truth-telling process should take place within public or private forums. The results were mixed, revealing that while many Acholi desire a truth process and accountability for past events, they continue to live in a state of fear.
if truth was told in public, witnesses could corroborate or correct testimony provided by another person, and a more accurate truth could be arrived at
a public process would deter perpetrators from coming forward. Retaliation moreover, is a real threat, particularly as those who come forward may have no means to compensate others.
"I think if there is a truth process it should be in the open…But if there is some sensitive information that the leaders feel cannot be released to the public, then they should deal with it in secret. But I continue to emphasize the fact that something done in secret will never help the people. Telling the truth is good. It also helps to give teaching to the public."
"A truth process should start mediating truth-telling and forgiveness in private between the perpetrator and the victim. The perpetrators should be asked if they are ready to come out and confess and ask for forgiveness from the people they wronged. If they accept then they should be made to go and ask for forgiveness from these people. Then the victims will grant them forgiveness. If there is a need to bring the matter before the public, then it should be when the offender has refused to confess and ask for forgiveness. But if he is willing to confess to the victim he wronged, then it should be in private and few people should be involved."
"I feel that it is better if the truth is told in public because each one can tell us what they saw with their own eyes before everyone. But also on the other hand, it can be told privately if one fears to talk about what the soldiers and the Government did because they can follow you and kill you since they own guns. After privately hearing what everyone has to say, it can be integrated into one story and told in public as the community’s general view or one voice."
respondents generally thought that forcing a person to participate in a truth process was undesirable. One youth leader explained: ‘People should not be forced because they will say something just for the sake of saying it and pushing the process to continue’. 40 The vast majority of respondents (96%) believe that no one should be forced to participate in a truth process. Respondents emphasized the importance of allowing a perpetrator to take the time to volunteer to talk about his or her wrongdoing. Elders have a particularly important role in ‘gently’persuading perpetrators that it is in their best interest to discuss the truth. It was argued by elders that forcing one to confess results in false truths and insincerity, and distorts the process of reconciliation. A significant number of respondents in qualitative interviews also argued that the phenomenon of cen 41 compels most perpetrators to confess to a crime in order to avoid or stop sickness and death that result because of haunting. ‘When the LRA come home…[they] will be compelled to come out one by one. It could start with a sickness, and then offenders will confess to the relatives who will then bring the case to us’
heinous war is one in which victims and perpetrators are intermixed at the community level.
Some civilians became collaborators with the LRA or the Government, either for their own protection or to get some economic advantage.
often difficult to disentangle victim and perpetrator.
both parties to the conflict have inflicted grave atrocities on the civilian population.
The UN IDP camps were poorly protected and maintained. 47 For example, up to 40,000 children commuted from camps nightly to sleep in the relative safety of town centres to avoid LRA abduction because the UPDF was unable to protect them
According to a random survey of over 2,500 persons in displaced persons camps by the International Centre for Transitional Justice and the Human Rights Centre, 40% of respondents had been abducted by the rebel LRA, 45% had witnessed the killing of a family member and 23% had been physically mutilated at some point during the conflict (International Center for Transitional Justice and the Human Rights Center 2005).
Those who have been demobilized from the LRA are occasionally scapegoats for community problems, and some report name calling.
Given this strained context, community-level reconciliation between those who were abducted or forced to fight (or who felt they had no choice but to join an army or collude with one), those who went willingly and those who stood by is further complicated. How should a truth-telling mechanism differentiate its participants? What would it make of those perpetrators who chose to fight, versus those who were forced? How would culu kwor and mato oput apply to willing commanders, passive bystanders and war profiteers?
There is some evidence from previous truth commissions to suggest that a society might benefit more from non-criminal judicial methods when the lines between victims and perpetrators, collaborators and passive witnesses, profiteers and pragmatists are shady and indefinable. As Naomi Roht-Arriaza argues in her study of several truth commissions: ‘Non-judicial methods were better at dealing with the many shades of grey that characterize most conflicts. Trials divided the universe into a small group of guilty parties and an innocent majority, which was thereby cleansed of wrongdoing’ (Roht-Arriaza 2006, p. 4). For a truth-telling body to be meaningful and effective, it would therefore be important to distinguish those in high command responsible for crimes from those who were originally forced to commit atrocities and may or may not have continued willingly. It would be imperative that any mechanism delineate categories of crimes and assign appropriate jurisdictions to each of them. This would both satisfy the international legal community in its desires for specific crime accountabilities, as well as ensure that the truth-telling process remains meaningful and systematic.
they consider truth-telling to be a necessary but not sufficient component of the process of seeking mato oput. Truth-telling satiates certain needs (determining the whereabouts of a missing loved one, the reasons or causes of misfortune or violence), but does not constitute reconciliation; rather it is a component part of a larger process of mato oput defined along general principles and practices of truth, acknowledgement, compensation and ceremony. Hence respond- ents highlight the need for culu kwor, or compensation, including reference to material and symbolic reparations by the Government of Uganda, recognizing the national dimension of the conflict. Ceremonial practices such as cleansing rituals are also important to other respondents to the process of cooling hearts, and so some argued that closure was only possible through appeasement of the spirits of those who died unjustly. K. Anyeko et al.
justice and reconciliation processes are always and at once historically situated and informed by those who have the most at stake in the process.
A Comparative Analysis of Restorative Justice Practices in Africa (2018) - Julena Jumbe et al https://www.researchgate.net/publication/328288480_A_Comparative_Analysis_of_Restorative_Justice_Practices_in_Africa
Restoration takes many forms, such as compensation, reparation or apology, and helps mend broken relationships. This makes perfect sense because African peoples tend to live communally and abhorred anything that could strain relationships, disconnect an individual or family with the community, and paralyze their social relationships
it promotes healing and restores relationships between offenders, victims, and community much better than the western adversarial system.
Crucially, the retributive justice system and culture, unlike restorative justice paradigm, is more likely to get people into more trouble than getting out of trouble (Omale, 2006). Therefore, a restorative justice paradigm is ideal for Africa because it would reduce dependence on external aid, promote active participation by local communities, and would contribute to the development of African’s own system of dispute or conflict resolution.
when members of the community, sitting around the fireplace, and listening attentively to the parties, interrogated them and helped them get to the bottom of the problem and bring out the truth. Getting to the truth, including understanding the root causes of the dispute, and not how one convinced the members of the community of his or her innocence, as practiced in the conventional justice system is one of the main distinguishing features of the restorative justice system. The search for truth had more to do with lessons learnt, understanding the causes and advising the parties and community how to avoid in future similar problems (Ilomo, 2013).
[Doesn't really have anything to do with 'justice'] The offender, having told the truth, had to voluntarily confess or acknowledge responsibility for their words, actions, or failure to act that caused harm or injury to the victim and his or her family; he or she also had to show remorse for his or her acts. When the truth is known and acknowledged, and responsibility owned, reconciliation follows due course and the broken relationship is repaired and restored. Thus, reconciliation is at the centre of the restorative justice model and cannot happen before the offender, victim and members of the community hear them out and establish the truth.
[Pressure to do so] Indeed, if it happened that a victim of a crime or a conflict or dispute suffered further harm or suffering before mending the broken relationship through the restorative justice system because of the recalcitrant behaviour of the community member suspected to be in the wrong or is the offender, the community members cast the blame on the suspect; hence communities had to resolve conflicts quickly (Ilomo, 2013).
Councils of Elders to be sure that genuine reconciliation has been achieved after dispute mediation, both parties may be expected to eat from the same bowl,
required the involvement of all members of the community in frank and open discussions of either a particular wrong, problem, conflict or a set of issues or conflicts. Thus, the African communities’ mechanisms for handling conflicts allowed ordinary people to participate in and address or discuss disputes and crimes that affected them freely without interference from a centralized and far removed authority of a State. By contrast, however, in post-independence African countries, State organs now handle conflicts and disputes through an adversarial and retributive process, and especially in criminal justice. While these foreign processes of justice are not invidious per se
relied on the laws and the legal systems that their colonial masters introduced, but these alien systems have not helped them in solving
helps in maintaining the rule of law, assured and timely delivery of justice, and advances community’s economy.
western justice systems, arguing that the western justice systems were meant to be applied in their own countries
Nindorera states that women were not involved in decision making because by then it was tested and observed that they cannot keep secret which was and still is the requirement in any justice administration.
Failure to reintegrate offenders has been shown to result, in most cases, into recidivism.
State has ‘stolen’ conflict resolution capabilities from the community, i.e. the State has usurped the role that community justice systems used to play in resolving conflict and administering justice. He suggests that conflicts should be solved by the main stakeholders
fostered an environment that encouraged offenders to accept responsibility for their role in the genocide and sought forgiveness from their victims. The Gacaca processes are believed to have succeeded in disposing off close to two million cases in Rwanda.
do not bring healing to the parties involved even in cases where the offender is jailed; instead, offenders might believe that society owes them nothing
there is dialogue
unpacks the truth of what happened and why
truth does not always heal
no justice system is perfect or can be considered to be fair to everyone
parties are encouraged to reach mutually agreed decisions.
lobbying by the elite and the participation of the State in the process. These have weakened the working of the abunzi so much so that it is no longer the same approach as it used to be during the pre-colonial era.
reconciling the parties to the conflict
the payment of compensation was a sign of accepting responsibility but not meant to empty the pockets of the wrongdoer
the King or the Chief heard murder cases because he was believed to be the victim or the one who suffers the injury.
cattle to be paid and some are paid to him because one of his followers is gone.
not only expensive but also alien to them in many respects, especially its focus on the individual, at the expense of the larger community
everyone is his or her brother’s or sister’s keeper, whether stranger or not. Thus, within this Ubuntu philosophy, the end of justice must be to restore the wrong-doer to a status that enables him or her to value others and desist from harming
the whole community suffers and, therefore, instead of marginalizing the offender
increasing moral degeneration in the country
people no longer seeing one another as one community
Ubuntu philosophy, which, literally translated, means you become human because of other human beings (no man is an island). - I am who I am because of who we all are - You are a person because of other persons
and this truth helped bring inner peace
managed to uncover the truth of the matter that no courts of law could have.
healing comes after knowing the truth
to maintain relationships, which in essence
It is submitted that the increasing cases of land disputes in Kenya could be easily settled if the indigenous way of solving conflicts, were to be resorted to instead of the formal court procedures, which to this day remain alien and incomprehensible to most rural and even urban communities.
communal types of land ownership practiced in African communities; indeed, private land ownership in the form of leaseholds and freeholds is foreign to most communities in Kenya
where the family failed to handle, the clan leader had to, those of a serious nature were handled by council elders. Emphasis was on amicable settlement. Respected elders could speak and give a judgment on a case.
Justice administration was manned by council elders. Disputes were handled in public and anyone could attend and give their opinion on the matter. The disputants were normally required to bring a goat which was slaughtered, cooked and eaten at the time of delivering a judgment. Most litigations were concluded with compensation but for those who were habitual offenders in serious crimes were publicly killed
21st century women have equal rights
a member of one family had to be taken to the victim’s family as a compensation, this kind of a practice violates human rights and one could query how compensating a human being could bring restoration? But for them by that time was considered to be a good mechanism of ending conflicts.
lack of expertise in reintegration, community’s perception on resettlement of offenders because some community members attach stigma to ex-offenders.
leaders who are not fully in support
irrational because they are irrational to the people.
a mock trial of fighting, thereafter, they are separated.
The mixture is drunk by the conflicting parties as a sign that the bitterness that existed between them should not recur
. Conflicting parties readiness to talk and continue with the talk was one of the requirement
law represents the culture of the people in a particular community and the use of British laws in Nigeria reflected their own customs and not those of Nigerians hence they conclude that, the imported British law is not law in a real sense because it does not relate to the society concerned. Among
corruption, complexity, and delays, resulting in denial of justice to some community members, and especially the poor.
This situation, in which the poor bear the brunt of a corrupt criminal justice system, should not be entertained by any democratic country that believes in fairness and observance of rule of law.
a participatory process that allows the victim, offender, and the community to resolve a crime or conflict in a manner that assists the offender to reintegrate into the community.
In Nigeria, the Igbo, for example, had its own ways of resolving conflicts. In murder cases, for instance, the kinsmen of the person found guilty for killing another had to go to the victim’s kinsmen and ask for forgiveness. The victim’s kinsmen would demand for reparation, which may in most cases include demand for a replacement of the deceased by kin from the offender’s kinsfolk. If a man was murdered, the offender’s clan had to find another man to be given to the victim’s family and if it was a woman, then the offender’s clan had to find a woman to replace the murdered woman of the other clan. In situations where the offender’s kinsmen failed to pay the reparations due to the victim’s clan, then they were entitled to avenge for their deceased; often the victim’s clan would choose someone influential in the offender’s clan and murder him or her.
In case of accidental killings, the offender would be banished from the community for a special number of years while his house and other property had to be destroyed to appease the gods and ancestors of the land. Although it is reiterated that conflicts in the Igbo society were resolved in the spirit of brotherhood (Osagie, 2014), this paper differs on such a contention on the aspect of killing influential person in the community when the offender’s clan did not give away one of the members to replace the deceased because that would be unjust to an innocent clan member and the act of killing the other does not sit properly with the spirit of brother hood unless brotherhood denotes something different from ubuntu philosophy which literally translated mean you are a person because of other persons and believes on helping one another regardless of the gravity of the crime committed not an eye for an eye.
no legal system that develops out of the unknown
not inclined to taking matters to the courts of law
Under present conditions and challenges, Ghana’s prisons can hardly contribute towards changing the behaviour of offenders or provide them with the necessary training to equip them with the knowledge and skills that will enable them to make positive contribution
especially for minor offenses and for first time offenders, women and the aged in Ghana
finding out the truth, healing the effects of human rights violations and in the end building a nation
summoned the parties to the conflict, the chance was given for each to tell their part of story and thereafter a decision was made by the Kima. The decision was meant to unite the disputants and not to cause more enmity; it was imperative for the leaders to ensure that the offender pays compensation and ask for forgiveness. Once that was done, then the parties had to eat in the same bowl and where necessary danced together as a sign of total forgiveness and unity.
some African indigenous conflict mechanism were punitive and against human rights, the best part with the practices was the involvement of all parties and insistence on reparation, compensation, forgiveness and restoration of peace and harmony
Its use has been revived in most of the developed countries
repression and erosion of restorative justice systems
limited decision making to members of small elite
had grave misconceptions about Africans: that Africans had no laws because
oral form and stored in various media, such as proverbs and songs, they were laws which were effectively communicated to community members through these media and were thus easily observed at heart.
fluid and extremely adaptable by communities
conflicts are bound to occur in any community because people differ in what they believe and have different interests and needs
African leaders and people no longer care about the unique ways Africans resolved conflict
places the entire burden on the prosecution to prove beyond reasonable doubt that the accused committed the offence for which he or she has been charged and the courts rely on the facts and evidence
confrontational and has often led to the wrongful convictions of innocent people, especially the poor
exacerbates the agony of victims, who as State witnesses, are subjected to brutal cross-examination, often calculated to break them down. The participatory restorative justice mechanisms of Africans, in contrast, offered both the victim and the offender the opportunity to reconcile and the truth-telling involved, offers them some sort of relief. Indeed, as Zehr point out that truth telling is beneficial to the stakeholders and brings understanding with regards to an offence
The loss of processes that could lead to total healing
cordial relationships in communities and making sacrifices for the well-being of others were highly valued. In western communities, by contrast, the individual’s rights and interests, over time came to trump those of family and community and the sense of sacrificing for the larger good have generally diminished.
healing cannot be found in courts of law with the involvement of police and other security agents and lawyers and judges and the victim and offender and their families becoming mere spectators. Moreover, communities
entire community had a role
ignores the local contexts in which the conflict arose.
Africans educated and socialized in western belief systems and life-styles have continued to denigrate their own culture.
not to declaration of
a new leaf or chapter is opened
those dissatisfied of the decision will continue to talk
any law that does not relate to the people is no law at all and when imposed on them, it is likely to fail.
inferior and barbaric
to develop our own legal order consistent with our culture and world view.
Any attempt to verbalize African native law suggests the use of legal terms which are alien or foreign
could lead to a misinterpretation
for the prosecution
instigating the delays either as a tactic to defeat the prosecution’s case or make more money off their clients
mishandle the evidence so much so that no court would convict on that evidence or drag their feet
huge backlog of cases in courts, which also results into overcrowding in African prisons
total disregard of the culture and legal order of the peoples they conquered
rehabilitating the offender and restoring broken trust
into a responsible member of the community.
involves State organs
diminish the integrity of the victim and dignity of the offender and excludes the community
consider the system oppressive and hostile to their culture and world view.
esurgent interest in African justice mechanism is because of some of the negative attributes of the western adversarial system
is often deliberately ignored that human rights as a distinct normative criteria in the west evolved after the Second European war in 1948 but only gain currency in the 1970s (Moyn, 2010) But no community’s values are static
Conflict Resolution in the Extractives: A Consideration of Traditional Conflict Resolution Paradigm Post-Colonial Africa (2017) - Oyeniji, A. (jstor)
You Cannot Compare Apples to Oranges: Ubushingantahe vs. Criminal Justice (2010) - Josh Perry
PEACE FIRST, JUSTICE LATER: TRADITIONAL JUSTICE IN NORTHERN UGANDA (2007) - Refugee Law Project Working Paper
Last Utopia: Human Rights in History (2010) - S. Moyn
Adapted excerpt: https://www.thenation.com/article/archive/human-rights-history/
The rule of law and transitional justice in conflict andpost-conflict societies (2004) UN Secretary General
The Injustice of Local Justice: Truth, Reconciliation, and Revenge in Rwanda in Rwanda (2008) - Jennie E. Burnet
‘Does the Truth Pass Across the Fire Without Burning?’ Locating the Short Circuit in Rwanda’s Gacaca Courts (2009) - Bert Ingelaere
Spirits and social reconstruction after mass violence: Rethinking transitional justice (2010) - Erin Baines
Want: Roht-Arriaza, Naomi (2006). The New Landscape of Transitional Justice