- The main classic European theoretical works on comparative law are: David, R., Jauffret-Spinosi, C., and Gore, M., Les grands systèmes de droit contemporains, 12e éd. Paris, Dalloz, 2016. The book has been translated into numerous languages. An English version of the 6th edition of 1974 was published by Sweet and Maxwell as Major legal systems in the world today, 3rd edition in 1985 (out of print).
- Zweigert, K. and Kötz, H., Einführung in die Rechtsvergleichung, 3e Aufl. Tübingen, Mohr, 1996. English translation: Introduction to comparative law, translated from the German by Tony Weir. Oxford, Oxford University Press, 1998.
- Breda, V., ed. Legal transplants in East Asia and Oceania,Cambridge University Press, 2019.
- De Cruz, P. Comparative law in a changing world, 3rd. Routledge-Cavendish, 2007.
- Glendon, M., et al, Comparative legal traditions: text, materials, and cases on western law, 4th ed. West Academic, 2015.
- Glenn, H P. Legal traditions of the world: sustainable diversity in law, 5th ed. Oxford University Press, 2014 (1st edition gained the Canada Prize, International Academy of Comparative Law, 1998).
- Harding, A. and Örücü, E. (eds.) Comparative law in the 21st Century. Kluwer Law International, 2002.
- Legrand, P. and Munday, R. (eds.) Comparative legal studies: traditions and transitions. Cambridge University Press, 2003.
- (Want to read) Menski, W., Comparative law in a global context: the legal systems of Asia and Africa, 2nd ed. Cambridge University Press, 2006.
- Merryman, J.H. and Pérez-Perdomo, R. The civil law tradition: an introduction to the legal systems of Europe and Latin America, 4th ed. Stanford University Press, 2018.
- Palmer, V., ed., Mixed jurisdictions worldwide: the third legal family. 2nd ed., Cambridge University Press, 2012.
- Riles, A. Rethinking the masters of comparative law. Hart Publishing, 2001.
- Varga, C. European legal cultures.Dartmouth Publishing, 1997.
- Zimmermann, R. Mixed legal systems in comparative perspective: property and obligations in Scotland and South Africa. Oxford University Press, 2003.
- Zimmermann, R. and Reimann, M. The Oxford handbook of comparative law, 2nd ed.,Oxford University Press, 2019.
"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
nothing but war
The amnesty in Uganda has been declared before the end of the conflict. While people in Uganda appear to perceive of the amnesty as having been very much a tool to end the war, there is less clarity over the consequences it might have afterward.
that those found guilty of crimes, including crimes against humanity and war crimes, all of which have almost certainly been committed in the long-running conflict
appears to be a contradiction between the Amnesty Act, seen by many as an alternative to punishment, and the investigations and subsequent punishment by the ICC.
ICC has no special powers of arrest. In other words, people want the amnesty to take precedence at the moment, even though the granting of amnesty to senior members of the LRA is not necessarily a final measure in the minds of many; certain individuals could still face prosecution by the ICC. It also raises the question as to just how far down the chain of command such prosecutions will reach – at what “rank” or number of crimes against humanity or war crimes committed will the prosecutors cap their investigations? Yet another question is the perceived adequacy of any punishment that the ICC can offer
Variously, calls for justice, peace, and reconciliation are being heard
the same terms are used by different players to signify blatantly different things. The words ‘justice’ and ‘peace'
while the debate surrounding justice and peace appears to be seen as being of the utmost importance, defining exactly what this means remains unclear.
might also prove useful in a national process
rest of the country.
which institutions are best suited to dealing
as the international community suggests
any attempt to ‘speak for the victims,’ is nearly impossible in a situation of ongoing conflict
a wide variety of individuals still see these mechanisms to have some currency
local government officials, religious and cultural leaders and, most importantly, civilians currently living in the IDP camps
numerous different voices and opinions
? whether the kinds of customary mechanisms discussed throughout the paper are capable of meeting the requirements laid out
? THE GOALS OF POST-CONFLICT RECONSTRUCTION
accountability for actions committed by rebels and government forces alike has belittled the amnesty process, which has remained a mechanism for ‘buying’ rebels
repair of that society. Talking about and admitting details about what has happened
is extremely important in the rebuilding of society
Talking about the past is a key ingredient in reckoning with the past
? forgiveness leads to “renewed relationships built on trust” 11 and ultimately to reconciliation. 12 If allowed to function properly, the process of acknowledgement has the potential to generate varying degrees of forgiveness: reconciliation, which leads to trust, and eventually social trust. This, in turn, forms the bedrock on which democracy can function.
stop accepting the word of their superiors, stop interacting with each other, and stop participating in the activities of civil society. 13 People living with low levels of trust
development of trust within society, then, is of great importance in sustaining the kinds of institutions that are able to grow and thrive
to engage in activities outside of their primary social groups
norms of reciprocity, the abundance of associations that bridge social divisions (civic society), and the presence of institutions of conflict management
trust neither ‘side’ in the conflict, and have difficulty trusting the people who live in their communities
civilians also cannot fully trust the UPDF, not least because any military action taken by the UPDF against the LRA generally involves killing their abducted children
UPDF who treat anyone outside of an IDP camp or major town as a potential collaborator. The consequent ambiguity of allegiances
what role different mechanisms should play while the conflict is still ongoing, and what should be left until the conflict has ended
assumption that, when war is over, people ought to be able to resume their former lives. In the case of northern Ugandan, however, this state of affairs will be much more difficult to realise
particularly if they are unable to return to their homes and villages
means of sustainability, such as farming and jobs
rely on the delivery
If the IDPs do return home, it is doubtful that they will find the familiarity of their pre-war lives
camps may be formalised, and the camps themselves will become permanent
economic sustainability of the region
possess none of the knowledge required
will be reliant on additional assistance from others
uncomfortable with their presence
have committed crimes against their own people, and must make right their wrongdoings. Second, given that many children have been abducted at a young age and have had no formal education or socialisation by their communities of origin, they may experience difficulty in fitting back into their communities and in rejoining society.
about dealing fairly with the wrongdoings of the past
“Transitional justice,” as it is called, is “engaged in helping societies move either from war to peace, or from a repressive or authoritarian regime to democracy,”
definition: is a process of active participation in which the wider community deliberates over past crimes, giving centre stage to both victim and perpetrator in a process which seeks to bestow dignity and empowerment upon the victim, with special emphasis placed upon contextual factors. 2
brought before an arbitrator, if not a panel of his peers
traditional African models of justice approach the perpetrators of crimes very differently
A wrongdoing is viewed as “a misbehaviour which requires teaching or an illness which requires healing.” 23 African traditional beliefs reiterate these values:
If you have harmed my child, it is because something has gone wrong with you to such an extent that you could do that. That which has gone wrong for you is now harming my life. It means I cannot be the kind of human being I want to be because you are no longer human. So it is in my interest – my interest – as the victim, to get you and assist you to get your humanity back so that I can become human again... This is a fundamentally different way of looking at a community and looking at what to do with evil. African traditional religion has no such thing as Satan. The biggest evil is to live in complete disregard of others.
retribution is but one part
What is punishment?
western understandings generally equate justice with punishment
Traditionally, shame and compensation (culo kwor in the Acholi language translates to “repaying a life”) were vital ingredients to any satisfactory form of punishment. As an elderly man said, “the government makes you take your punishment by being in jail, but for our cultural practice, the punishment is paying the compensation which directly benefits the bereaved and creates a sense of reconciliation.” 26 Or, in the words of an elderly woman, “The charge is the punishment they give. For them, what they call punishment is the feeling that comes inside, the feeling that you are guilty. But the purpose is to bring the wrongdoer and the victims together.” 27 Furthermore, this punishment is something that is felt by the whole clan, not just by the individual who committed the crime. As a retired teacher explained, “In Acholi, compensation for the loss of life is not by killing the culprit, but by paying animals. That is why all members of a clan, a family, are very much concerned with the behaviour of the members of the family. The problem of one member is a problem of the whole family.”
What is more complex, however, is discerning what would be acceptable levels and forms of punishment within the current context of the war. Again, there seems to be divided opinion on the matter. Some informants said that Kony should be granted amnesty and made to live within the communities in order for him to live with the consequences of what he has done. As one cultural leader said,
Kony being convicted and taking him to the Hague, that is taking him to heaven. His cell will have air conditioning, a TV, he will be eating chicken, beef. He will be given a chance to work in the jail and earn something. I’d rather he be here and see what he has done. Let him talk to the person he has ordered the lips to be cut off. Let him talk and hear. The Acholi mechanisms must be allowed to run their course first, so that peace can be brought about. Only if at that stage there is a complainant who wants to take Kony to court should legal action be taken.
++ (Death not a conclusino to anything) This sentiment was echoed by a woman whose daughter had been abducted and raped, and who now has a baby. “I want to see them back in the community to restore the Acholi, so they can realise what they have done... If we kill them, they won’t realise what they have done, they will die immediately.”
In Western forms of justice, compensation is a product of civil law, while the objective of criminal law is deterrence and punishment.
“The compensation now might not be fair especially in this conflict, because if one killed ten people, it would be difficult to compensate them all.
the people who they have killed, they may not even know who and where from.
Many suggest that compensation should be the government’s responsibility
they might not be able to accept these people back.” 35 Indeed, for some, retribution is the only answer. As one woman said, “The only advice that I can give on the issue of Kony... is that they should catch him and bring him to the public and they should kill him in a traditional way.
(irresp of the masses) to deceive them so they come out.
meaningless if government is not also held accountable for its actions
? “Mato oput should be with government and not with the community, because they were fighting the government.”
compensating people for their losses during the conflict; truth-telling exercises; attempts at social memory and remembering through commemoration or other means; amnesty; or even official apologies from the perpetrator groups. These institutions, however, must also be bolstered by reforms in other sectors, and might include economic reforms, rebuilding of damaged schools, hospitals, roads and houses
any justice that takes place needs to take into account all parties involved in the conflict, and not just the LRA. Interviews show the extent to which there is a widespread assumption that any prosecutions that might take place in the future will hold the GoU accountable in the same way as the LRA. It is vital to understand this level of expectation: given that two significant root causes of the conflict appear to be the lack of accountability and impunity following previous regime changes, and deep-rooted regional divisions within the country, 40 any process that is seen to take into account the actions of only one side is likely to generate serious future grievances. Indeed, the need to address the root causes of the conflict lies behind support among civil society for a negotiated settlement. As one person living in an IDP camp said, “The beginning and continuation of the war should not be blamed only on the rebels. If there is any prosecution, the government should also be prosecuted. If it had been a matter of ending this war only for the sake of the rebels it would have ended a long time ago.”
“Mato oput would require that Museveni and Kony participate in the ceremony.”
? amnesty should be contingent upon voluntarily stopping rebellion (as opposed to being caught). Some people seem to equate amnesty with restorative justice despite the fact that they are, in fact, fundamentally different, in that amnesty does not satisfy the principles of restoration, above.
government needs to be consistent in its promises
nobody will believe. And again, if they have now started to take some of them to court, those in the bush will not come out and this thing will just continue like that
They did lots of atrocities during their time in the bush
they want revenge
“if people are allowed to revenge the same way, we have not stopped the war.”
order in which these activities must occur
(wisdom) the war has to end first, and only then can decisions be made as to what mechanisms of justice should be implemented. For instance, when asked what should happen to Kony, some informants immediately said that he should be killed. However, when further questioned about how the war should be brought to an end, the majority referred to the amnesty, and some then changed their mind and said that Kony should be granted amnesty if he comes out voluntarily, while others said that he should then be prosecuted. A young woman in Kitgum articulated a widely held view:
peace should be paramount
(not with icc) However, maybe if he comes out and apologises before people he can be forgiven
The picking-up afterward, for a lot of us, that is life.
its transition from conflict to functioning
feel that peace emotionally as well
that few people believe that there is a military solution to the war
some form of negotiated settlement
if the government tries to fight, civilians get killed
? “I think [Kony] should be given amnesty when he comes out so that he can tell us why he did all this... Then from what he will have said, if we find that it is not something worthy going to the bush and killing people, then he should be taken to court. But if we find that he had valid reasons, then he can be forgiven.”
The elders should make the investigations and they should make recommendations to the government about which ones of these commanders should be prosecuted. They could say to the government, ‘this one has been so rude, you help us with this one.’
Some people believe that if Kony doesn’t go to jail, no justice has been done. Other people believe that if the traditional mechanisms can help, let it prevail. In this peace process, we should work together, but there should be a sequence, so that nothing jeopardises the peace process
not appear to be a consensus among people living in the war-affected region
inherently biased toward the National Resistance Movement
(Colombia) that society becomes engaged in debate about what Ugandan society will look like once
future reconstruction process to be national
? IDPs in Angola go through a ritual called conselho, traditional psychological healing based on “the general encouragement given to people to abandon the thoughts and memories of war and losses.”
fulfil different roles within their respective societies, from cleansing and welcoming to prosecution and punishment
traditionally used only where a member of one clan has killed
(for the community) allow the Acholi to acknowledge that this person has been accepted back into the community, and that the community is pleased to have them back
bitterness. So these words always are part of the ceremony for returnees. Wa ojoli paco, these are also words spoken at the ceremony. It means, “we welcome you home.” It is to say that, “the people have forgiven you everything, the Acholi people welcome you back and they now want you to take responsibilities in the community.” Immediately you are welcomed in the community, the community is beginning to extend its services and responsibilities to you. People will come and talk to you
Even though a murderer is sent to prison, a reconciliation ritual ought to be conducted
complicated because of diversity of ethnicity
The new generation does not belong anywhere. They are neither new nor old. But everyone respects these traditions
reduced use of traditional mechanisms amongst Acholi people. In particular, numerous informants referred to the issue of displacement as having created an environment in which carrying out traditional ceremonies had become impossible. For many, this was symbolised by the fact that people are no longer able to sit around a campfire in the evenings and talk, as it is too dangerous.
The army tells us to stay inside
the way huts are built, squeezed together, and what people do at night – even at daytime – has removed respect completely now... Morally we are completely broken
reduce the risk of abduction
many returnees are taking part in a cleansing ritual
hybrid or “neo-traditional”
within the towns rather than in the IDP camps due to logistical constraints
in groups rather than individually
not to his or her home, but to and IDP camp revealing
“Many young people are surprised that there is something in the culture that could cover them, because many were not aware. They were surprised that despite all the atrocities they have committed, there is a system in the culture that can bring them back and that people forgive them and are beginning to care for them.”
distinguish between perpetrators and victims
“everyone is a victim and everyone is a perpetrator.”
did not join voluntarily and, therefore, are themselves victims of this brutal war. At the same time, given the military strategy used by the LRA, the majority of those who did not escape within the first days or week of captivity, and who survived, are likely to have killed innocent civilians
The very nature of this conflict, which has forced people to kill within their own families
Civilians have not only borne the brunt of the conflict, they have also been the main source of brutality
pressure is being put on people to accept returnees
‘look, a mistake has already been made, we have already lost someone, if you take revenge, you may never know, we might lose even more people.’ But sometimes this is too hard.” 106 In other words, for many, any form of justice that takes place will be seen as inadequate in the face of the unprecedented scale of the conflict which has held the Acholi sub-region in its grip for nearly two decades.
widespread support for the amnesty as a mechanism to end the war in the north. 107 It is also perceived by many to contain a potential ‘restorative’ component that is seen to have currency
role that should be played by different mechanisms of justice, and over who should dictate
consequent polarisation of the debate is creating an environment in which people are effectively being forced to chose between the two alternatives of amnesty and prosecution, neither of which, on its own, is likely to adequately encapsulate the demands of justice in the long-term. However, it is also an impossible choice to make while the conflict is on-going.
now desperate. These people should be forgiven, and if this process of forgiveness continues, then maybe one day the government will let us go home again.”
Ugandan case as a testing ground
have ceased to think about peace as a genuine possibility. As a result, many interviewees gave the impression that they were unable to think about what should happen once the conflict has ended. Instead, they were primarily preoccupied with thinking about how an end to the conflict could be achieved
I think when they come out, people will be happy because they now feel that at least we shall now sooner or later be at peace or at rest, because there are now fewer people left who can order these atrocities, it is weakening the other side and it maybe will realise peace. For now, the people only see towards the end of the war. When these people come out, they can speak directly to those left behind and when they see what is happening on the ground, they will say to those in the bush, “it is not like we thought, maybe you can also join us.”
widely recognized as having been abducted in the first place, there was a willingness to accept them back. As stated above, for many this is not an easy thing to do, and the reintegration process is far from straight forward.
(The examples not examples for the people. They don't understand it that way?) “The trouble with ICC is that you go and arrest the... six or so leaders of the LRA. But we are saying, ‘the war has been here for nearly 19 years. Is it really true that there are only six people who did wrong?” 114 Indeed, numerous informants referred to the fact that, while the conflict continues, people will accept former combatants, but once it is over, then more needs to be done to avert tensions and future conflict from arising.
The amnesty says you are forgiven, but for us, they still have to come and talk to the parents and compensation will have to be done
not be rushed into paying compensation
There is an old man here; two of his children were going for a visit. The rebels killed them. Recently these rebels returned, they reported to the primary school here. Then when the old man saw them and saw that they were wearing his sons’ clothes, he went to them, he was very angry and wanted revenge – he was like a madman. People were holding him. He demanded that the rebels show him where they had buried the two sons, so they went and collected the remains. 1
A few of those interviewed admitted that they are unwilling to accept former combatants back regardless of whether or not they were abducted. As one elderly woman said, “Even those who were abducted, they are no longer our children. They are now with Kony and they take instructions from Kony to kill us. They should also be killed.”
more senior combatants who are now seen to be living a life of luxury in Gulu town. As one informant said, “when these commanders come out, not one time do they acknowledge their crimes. And that adds so the pain. The people want these commanders to admit that they were in the wrong. That is one factor that makes is not easy for reconciliation.” 119 Or, as a young woman living in squalid conditions in an IDP camp said, “These commanders, they now live better than we do... they come out and are so arrogant.”
amnesty process. As illustrated by the quotation above, people are disturbed by the lack of accountability within the process that, in turn, creates an environment in which receiving an amnesty certificate is seen as a complete process in and of itself. Such an impression is underscored by the way in which the government is using senior ex-combatants to tempt others out of the bush.
further damaging the image of government in the eyes of civilians
amnesty process as being the surest way to absorb the thousands of abductees/ex-combatants back into society. However, there was also a recognition that further processes
the majority of people acknowledge that such debates, at the present time, remain hypothetical
People are crying out for justice but, even more, they desperately want the war to end
? “No society can build a civilization on borrowed values. In order for [Uganda] to have a real civilization for peace, tolerance, world understanding and democracy, human rights, authentic integral liberation and development
“People feel that western methods are more sophisticated so traditional methods are not being used.”
international law in establishing accountability for crimes. Others have seen them as “second best.” For these reasons, traditional institutions have long been disregarded. Beginning in colonial times, traditional customs were belittled
the idea of justice under them goes well beyond simply punishing perpetrators in prisons
(yes. not results, or even goals, but cult. values) Why is it that so-called international standards – obviously a collection of cultural norms from a select group of nations – are being used as benchmarks, when the inverse might actually be ideal?
(pick which side you are on) and in which clear categories of perpetrators and victims often do not exist, many different problems arise from using the Western retributive model. Such justice is often accused of sacrificing the rights of defendants for social solidarity; distorting historical understandings of a nation’s past; fostering delusions of purity and grandeur; requiring extensive admissions of guilt and repentance; risks having its legal efforts to influence collective memory fail because such memories arise “only incidentally”; and forces authorities to conceal deliberateness of purpose. 127 This type of retribution, sometimes referred to as the “liberal-prosecutorial model,” has been deemed by some as inappropriate in transitional contexts. 128 “The limitations of formal justice are most vivid when there are ‘many dirty hands,’”
assume that simply prosecuting and, hopefully, convicting Kony and a few of his senior commanders will satisfy the needs of justice in this context
These traditional mechanisms are extremely complex, in part because their judicial functions are bound up with the extensive social education received in the home and in the community,
(but this justice fluid and adaptable. During mediation it can arise a moment of judgement or adjudication is required due to something a participant does or something he doesn't acknoledge) The customary processes that are used in dealing with conflict at the group, community, clan or neighbourhood level may include a number of different elements. These include adjudication or arbitration, mediation, reconciliation, compensation, and various rites and symbols. 134 It is clear that in the practical definition of many of these elements, the boundaries between restorative and retributive justice, as mentioned above, begin to blur.
Adjudication and mediation, for example, are two distinct things:
adjudication is a vertical system of justice which is based on hierarchies of power, and it uses force to implement decisions.
In contrast, mediation is based on an essential equality of the disputants. If parties are not exactly equal or do not have equal bargaining power, mediation attempts to promote equality and balance as part of its process. It is a horizontal system which relies on equality, the preservation of continuing relationships, or the adjustment of disparate bargaining power,
? “without taking proportional retribution in grave cases, a society dishonours itself, and undermines public confidence
? this kind of judgment is sought only as a last-ditch attempt to find resolution, after the adjudicators have exhausted all other means at their disposal.
conflict resolution process is mediation, wherein one person or a group of people acts as a go-between among the offended parties and the offender. Mediation is “the most commonly appreciated means of solving conflicts
[The session] is not only one of individual healing but also a process of socialization.”
compensation. The Acholi traditional mechanisms count compensation as a precondition for their reconciliation ceremonies. 149 This is echoed in claims that “forgiveness comes after the payment of damages.” 150 What is called for is “reconciliation through disbursement.” 151 “Social barriers can be dissolved by admitting wrongdoing and deciding on compensation.
reconciliation is always the first element of this process to be attempted. 154 And of the Acholi mechanisms, Rwot Onen David Acana II said, “poro lok ki mato oput” (“Peace talks and reconciliation are the best way to resolve conflict.”)
colonial powers unfairly and prejudicially empowered particular chiefs instead of others, thereby “turning [them] into an enabling arm of state power
“not all customary laws are necessarily benign, as they have undergone their own troubled history and evolution, and their content may not necessarily be uniformly acceptable to all citizens or communities in the country.” 159 The fear, of course, is again that bias and prejudice could tend to strip away the uniformity of such institutions, since their
“substantive and procedural rules are imprecise, unwritten, democratic, flexible, ad hoc, and pluralistic.”
(by whose standards?) competent, independent and impartial
(unsuited) right to be presumed innocent
Not to be compelled to testify against himself or to confess guilt;
?!!! In the case of juvenile persons, the procedure shall be such as will take account of their age and the desirability of promoting their rehabilitation.
“The actual reconciliation ritual
takes a full day
weeks, months or even years of careful negotiations.”
Here they do not drink the oput. In these days, the person would have to pay 8 cows
If someone does not accept the guilt, he is left free and remains outside the community.
There are many different problems. There are domestic problems. For a husband to throw a crumb of bread at his wife, that is already a crime, that cannot be tolerated. Something must be done. To pick a fight, to walk out of the house, swearing never to come back, that is already a crime. Incest cannot be tolerated: justice needs to be done, not only to the person wronged, but also to the family, to the whole clan. If my wife refuses to have sex with me and she puts ash near her private parts, that is a crime, and the elders will know how to deal with it. To kill someone: the crime is at two levels, intentional and unintentional. These are handled in different ways. Stealing: I don’t know how we have been dealing with it, it has been very rare. There is no ceremony for someone who has stolen, unless it was stealing grain. The elders would handle these things. If I had quarrelled with my wife, my parents - my father - and my brothers would come in. If it is a big problem, the elders of the community would come in.
In our community, the question of punishment was not there. I have heard it only once, the death penalty was passed. If you play with the Chief, if you commit a crime against the Chief, your life is in real danger. If you create insecurity for the chief, you can easily die. There is this story about a woman called Latiina. She started brewing kwete, the local brew. The Acholi did not have it then, she started it. Culturally, anything new must never be consumed before it is taken to the Chief. He tasted it and he found it was very good and he drank it and then he got very drunk. When the chief was drunk, you know, you lie down, and people thought that he had died. You never kill anyone in the compound, so the woman was taken out of the compound and stoned with keno until she died. That was punishment, because she played with the life of a Chief. We have a saying today, yom yic oneko Latiina (“happiness has killed Latiina”).
broader notion of “interests of justice” and clearly indicates that the latter might trump the former.
the main goal of the Ugandan amnesty has been to end the conflict and save lives, not to shield criminals
(no longer interested in him) But for Kony, if he does not come out through the peace process then they should get away of arresting him and government can do anything they think fits him.”
too big for amnesty
“Kony should be arrested and prosecuted for all the atrocities he was committed. Amnesty has been our attempt to bring peace.”
The worst killers are the low people [i.e. of lower ranks]. Because as you compare what has been happening here, most of the bad things have been done by government fighters. So Kony will be forgiven. If the government insists on punishing Kony, I think that the Acholi will in chorus say, “no, if you wanted to kill him, why did you encourage us to bring him home?” No Acholi elder will accept this. “You will involve us in persuading Kony to come home. Why do you now want to kill him?” I think there would be many reasons for the Acholi leaders to complain world wide. It must be made known to the world that we Acholi people do not want, from the bottom of our heart, for Kony to be punished. The conditions given now should be maintained. We want blanket amnesty.
There is going to be no peace without forgiveness.
! the mechanisms themselves would likely have to be formalised to some extent.
discrepancy in opinion between the leadership and those living in IDP camps.
any questions of bias and flexibility. Codification and other “fair procedures [would] serve to satisfy neutral observers
?Whatever the case, “[j]ustice, like beauty, is in the eye of the beholder and can be interpreted in a variety of ways.” 197 It can legitimately take many forms. 198 It remains to be seen what those living within the conflict zone will choose.
the fact that the processes of peace and justice are, to a large extent, separated in people’s minds
that what people are demanding
more appropriate and better able to deal
building of social trust is critical to the rebuilding and reconciliation process. Without this essential element, people will be unwilling and unable to forge meaningful relationships and to get on with their lives in the absence of fear and distrust.
many of these people believe to some extent in the work of the ICC
not at all suited to the kinds of violent conflict that has taken place in Northern Uganda and elsewhere
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
how well Gacaca is functioning varies a great deal from community to community.
local perceptions of widespread injustice in the Gacaca
all the educated Hutu
pilot phase in 2001 and a nationwide roll-out in 2005, the entire population has been enlisted to prosecute, defend, testify, and judge an estimated 761,000 suspects who stood accused of genocide as of March 2005 and to hear a total of 1.1 million cases.
the process has increased conflict in local communities (or, at least, brought that conflict to the surface) and has intensified ethnic cleavages in the short term.
(overextension of power/ability of gov't. If can't provide peace + justice will degrade) given local perceptions of widespread injustice in the Gacaca process, the long-term prospects for a peaceful and just society in Rwanda are not favorable.
Under the principle of universal jurisdiction
Under pressure from the international community to solve the problem, the Rwandan government turned to gacaca, a traditional conflict-resolution mechanism
gacaca brought together inyangamugayo (‘‘people of integrity,’’ who were usually respected elders)
documents several forms of gacaca
criticized the Gacaca courts because their procedures violate the fundamental rights of the accused by prohibiting them from seeking legal counsel and not granting them full rights to cross- examine prosecution witnesses or to call witnesses for their defense. 20 As Peter Uvin and Charles Mironko state, ‘‘perhaps the strongest element in favor of gacaca is the lack of an alternative.’
entire community participating. Second, the foundation of Gacaca court proceedings is the testimony of prisoners who have confessed to their crimes. In traditional gacaca, testimony usually began with the aggrieved stating their case, followed by impartial witnesses providing testimony. The accused completed the proceedings by giving their testimony while participants cross-examined them based on the accounts provided by witnesses. Third, the foundation of traditional gacaca was not punitive justice but, rather, restorative justice. Although the recommendations (or ‘‘judgments’’) of a traditional gacaca might have included some punishment (e.g., the gift of a cow
reestablishing social equilibrium
entirely focussed on punitive justice
death penalty or life imprisonment
Elections for inyangamugayo
130,000 people were in prison, accused of genocide. 24 This massive prison population put a strain on state resources; the Rwandan government was unable to provide adequate food, water, or living quarters for prisoners
The family members of prisoners were required to bring food and drinking water at least once a week
six- week re-education camp (ingando) before returning to their home communities. Despite these steps to reduce the prison population, Gacaca has resulted in an exponential increase in the number of accused. Furthermore, the number of detainees in Rwandan prisons and jails has been on the rise, from 60,000 at the beginning of 2006 to around 90,000 in May 2007.
Following the pilot phase from 2001 through 2002, the Gacaca statute and the entire Rwandan judiciary were reorganized based on the results of this phase. Organic Law No. 16/2004 was promulgated on 19 June 2004, and the Gacaca courts began operating nationwide in January 2005; the secretary of state of the Ministry of Justice stated that approximately 761,000 suspects had been identified in the investigation phase of Gacaca. 27 In December 2007, Domitille Mukantaganzwa, executive secretary of the National Service of Gacaca Courts, announced that 712,723 of a total of more than 1.12 million cases had been completed. 28 Presumably, many of these cases involve more than one person.
organized themselves to fabricate testimony and evidence against certain people
the Gacaca process is perceived as one-sided, as victors’ justice. 38 The Gacaca law states that the courts have jurisdiction only over crimes related to the genocide; thus, killings and other atrocities perpetrated by RPF soldiers
Interahamwe,’’ meaning those who killed a lot
As a result of the campaigns to root out ‘‘real Interahamwe,’’ many Rwandan citizens feel that Interahamwe nyanterahamwe ntizikiba mu Rwanda (‘‘the true Interahamwe are either dead or in exile’’). Thus, the people accused in Gacaca courts are not ‘‘real Interahamwe’’; at best, they are small-time participants who were coerced into action, and they may be completely innocent.
presuming that anyone who had survived must have killed or been an accomplice in the genocide. 41 In cases of ‘‘mixed’’ marriages
the problem of integrating released prisoners
The prisoners had received training sessions in ingando [re-education camp] before coming onto the hill. You can see, once he [a released prisoner] arrives on the hill, he has changed a lot. First of all, he prays a lot. You can see that he is truly Christian. Second, he approaches people to talk and to ask forgiveness from people against whom he committed genocide, whose family member he killed. Third, he goes to help others.
I went to visit a freed man at his home who lived really close to my house and he came to visit me at home too. We have exchanged ideas and I’ve seen that this is someone who has totally changed. We should have the courage to approach these people. This man of whom I’m telling you, he killed my family, he asked forgiveness and I forgave him. I find that it’s good if someone truly accepts these actions and asks forgiveness, at this time he is relieved and you, too, you feel something like peace in your heart.
In general, the prisoners integrate themselves without any trouble. But, there is one who came who did not change. He, he stays at home, he talks to no one. Since he did very bad things in the genocide, killed a lot, we leave him alone like that. We’ve put him in quarantine.
We can’t look into men’s hearts, certainly there are those who are happy and others who are not happy. In general, we pretend to get along.
certain ge ́nocidaires do not have the right to rejoin the community, since basabye imbabazi (‘‘they have asked for mercy’’)
batyicuza (‘‘shown remorse’’)
there can be no justice for genocide survivors
the gaping holes in their lives cannot be filled
but many view justice through the courts (whether national or international) or through Gacaca as an important duty—a way to recapture the dignity
? When I asked her why, she said that she could not work with these authorities because they ‘‘were not serious.’’
For me, it was a relief to see them discussing Gacaca and its complexities without fear and suspicion.
Yet the ties among them were strong enough to allow for what appeared to be unfettered discussion.
Prisoners have many motivations to lie.
theme of revenge
One effect of new accusations is that they disrupt the social fabric
In instances where people sought revenge against particular individuals, the events in question had not necessarily occurred during the 1994 genocide. Sometimes they appeared to be taking revenge for events in the distant past (e.g., during previous periods of anti-Tutsi sentiment and violence, such as occurred in 1959, 1962–1963, and 1973). Most of these stories are difficult to describe in ethnographic detail because they risk endangering the tellers who are the victims of this revenge seeking. One Tutsi genocide survivor, Marie, 53 who had been married to a Hutu, Janvier, explained to me how another Tutsi genocide survivor, Jeanne, constantly terrorized her during Gacaca hearings. Jeanne would frequently appear before the court and demand that Marie testify about what had happened during the genocide. Marie insisted that she did not witness anything, having spent several months in hiding with her children, moving from house to house among her in-laws, who lived near one another on the hill. Jeanne insisted that Marie was lying, that she knew where victims’ bodies were buried. Jeanne repeatedly threatened, ‘‘Don’t you know what the punishment for lying before the Gacaca court is!?!’’ As Marie told me her story, her body trembled, her voice quavered, and tears fell silently from her eyes.
Jeanne and her husband, Patrice (also a Tutsi who had survived the genocide), had long held a grudge against Marie and her husband. Patrice had been the victim of Tutsi purges from higher education in 1973, and he blamed anti-Tutsi racism for the premature end of his education. He eventually focused this anger on Marie’s husband, Janvier. In the early 1990s, Janvier had been promoted to a leadership position in the regional government; Jeanne and Patrice believed that Patrice had been unfairly passed over for the same promotion because of his ethnicity. In the months following the genocide in 1994, Janvier continued to hold this position in the regional government and worked closely with the RPA officers stationed in the area. 54 One day, as he was walking on the main road into town, a truck transporting prisoners stopped; without any explanation, Janvier was arrested by the soldiers accompanying the prisoners and subsequently imprisoned. It took Marie several weeks to find out what had happened to him. She eventually found him in a provincial prison. Only several months later did she find out that he stood accused of genocide, although he did not even have a judicial file.
With the loss of her husband’s salary, Marie sought assistance for her children from the Genocide Survivors’ Assistance Fund (FARG), but Jeanne and Patrice, who headed the local genocide survivors’ organization, blocked Marie’s efforts by refusing to sign the necessary paperwork. Jeanne said to her, ‘‘The FARG does not help killers’ children.’’ Marie’s husband spent seven years in prison on charges of genocide, although there was no evidence against him in his dossier. Marie and her husband believed that Jeanne and Patrice were behind his arrest and imprisonment, but they had no proof of it.
When Marie’s husband was finally released in 2001, many (Tutsi) genocide survivors in the community were pleased to see him and welcomed him back home. Patrice and Jeanne, on the other hand, harassed the family and insisted that Janvier would be rearrested. On one occasion, Patrice tried to organize a mob to attack Janvier. 55 Under great psychological strain, Janvier went to the capital city, Kigali, hoping to escape the harassment, but it continued. The family he was staying with there began to receive anonymous, threatening phone calls; Janvier became paranoid, believing that he was constantly being watched and followed. One evening, he was hit by a dump truck while crossing the street. He died from his injuries. While Marie believed that Jeanne and Patrice had something to do with the incident, she had no proof, and police investigators labeled Janvier’s death an accident. Trying to support her children alone, Marie hoped that Jeanne and Patrice would leave her in peace, but every time she attended Gacaca, 56 she faced Jeanne’s accusations.
The Rwandan government’s genocide commemorations and national mourning practices generate a polarizing discourse that defines all Tutsi as genocide victims and all Hutu as genocide perpetrators. 57 Under this logic, certain Tutsi genocide survivors have sought revenge against individual Hutu as a scapegoat for Hutu as a corporate group.
Author: Has the Gacaca process had any negative effects on you or your association?
Woman: We mustn’t lie to you; the Gacaca process has had its negative effects. For example, our group leader was imprisoned [whispering]. There was an American researcher who came to interview women in the association on the topic of Gacaca. In the meeting, D. [name deleted] said that there is injustice in Gacaca because all the genocide survivors want to make certain that all the Hutu are imprisoned. After a woman in the association went to see the inyangamugayo in [sector name deleted] to denounce D., she also wrote a letter saying that D. had engaged in divisionism. D. was arrested and imprisoned for four months. Because of the accusations of divisionism, the case went all the way to the Office of the National Prosecutor in the normal courts. When D. went before the Gacaca court, our group members went to testify on her behalf and said that she hadn’t participated in the genocide and that she hadn’t divided people and that she likes peace in the community. Afterwards, the Prosecutor also made inquiries. In the end, D. was released.
Author: How has all this affected the association?
Woman: We had some trouble getting along during that period, but T. asked forgiveness [kwicuza] from all the association leaders and also from D. Now, there aren’t any more problems. D. forgave T., who is still remorseful. We try to show T. that there is no problem.
Despite these statements, it was clear in my interactions with the members of the association that the story was far from over. D., a vibrant, smiling group leader when I first met her in 2000, had become a shadow of her former self. She walked with her head bent, eyes on the ground, and didn’t say a word. The toll taken by her time in prison was evident in her gaunt face, worried eyes, and white hair. While she was imprisoned her children had been forced to drop out of school to take care of the family farm and to bring her food and water. D. did not say a word in any of the meetings and left the room anytime the subject of her imprisonment and T.’s actions came up. She avoided having any conversations with me.
In a meeting the following week with all the association leaders, I asked some questions about Gacaca. After many women said that Gacaca was working well, a Hutu widow of the genocide stood up and said that there was ‘‘justice for some in Gacaca, but not justice for all.’’ Immediately, T. stood up and accused her of divisionism in front of everyone. The meeting became very tense, and everyone was upset. Several women spoke in rapid succession, interrupting one another. In the end, a Tutsi widow of the genocide admonished T. for ‘‘restarting her nonsense’’ and told her that she would be thrown out of the association if she continued.
According to some women in the group, T. was lashing out against D. because T. had lost her husband and all but one of her children and, in addition, had contracted HIV when she was raped in 1994. As her health declined, she became more and more bitter and began to lash out against Hutu association members, even those who were widows of the genocide.
The statement that had landed D. in prison, that some genocide survivors will not stop until all Hutu are in prison, was a sentiment I heard in all three provinces during my visit in May and June 2007. These statements were made only in intimate groups where everyone trusted those who were listening. As D.’s case illustrates, making these statements is very risky.
The remaining women (all of whom were Hutu) began speaking in low voices, so that our conversation could not be overheard. They said that Gacaca was not functioning well at all, that it was ‘‘profoundly dividing’’ the population along ethnic lines:
(punishment as a tool of the commons) bring them together, negotiate, and settle the problem. Since Gacaca has started, both live in fear. They don’t talk to each other. In front of each other, we don’t say what we really think. That’s why we couldn’t say what was really happening [before the Tutsi returnee left]
I was an inyangamugayo. When I saw people giving false testimony and getting innocent people imprisoned, I denounced it. The other inyanga- mugayo told me to keep quiet, but I went to Kigali and told them [the Ministry of Justice] that the inyangamugayo here were not implementing the law correctly. They sent investigators here. Next thing you know, someone is denouncing me in Gacaca. I got the message. I resigned, and I kept my mouth shut. No one sang my name in Gacaca anymore.
in order to 'take their land'
forced them to settle in an umudugudu (‘‘agglomeration’’) under its villagization policy
inhabited by a lot of Tutsi and the fifty-niners want all the land. So, to get the land, the Tutsi and the fifty-niners who have money, they find Hutu and give them this money so that they can go and give false testimony. Those that they accuse directly are quickly put in prison and the others take their land, saying that their grandparents lived in these places for a long time.
using Gacaca to seek other gains, whether land or jobs, or to ‘‘settle’’ family disputes
Hutu who protected Tutsi during the genocide are facing enormous difficulties. In Gacaca hearings, their acts of heroism are met with suspicion and scrutinized for veracity.
risk being deemed accomplices
where having connections to power (un piston) is a prerequisite for access to a job
‘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
Power to the People? Abuses of power in traditional practices of acknowledgement in Uganda - Joanna R. Quinn
often top-down and far-removed from the opinions, activities, and values of the community.
reconciliation continues to be an “essential and final part of peaceful settlement of conflict.”
seen to be people of great wisdom. They were the “legitimate bearers of the public confidence.” 44 “In kin-based societies... every person... depended on kith and kin to protect life and property—for there was no other rule to turn to.”
those who are today responsible for dispensing customary justice are, in fact, sometimes not the traditionally-authorized cultural leaders
“Politically-elected leaders play more to the gallery than to justice, and are often held hostage by the electorate.
? And yet it is, perhaps, worth thinking through just who might, in fact, be a legitimate wielder of power.
certain members of the community have come to be privileged
Education, particularly, allowed some community members to assume roles that they might not otherwise have held
Particularly the diaspora population has been privileged in this way, as they are seen as being financially better-off
Particularly in communities that have been the site of so much conflict and war, perceived bravery, too, might serve to privilege a person or group of people over his peers.
the most difficult problem stemming from illegitimate privileging is the possibility of improper exemption from accountability—particularly through the mechanisms of customary law. That is, the person at the top of the chain of command and authority within a given community, especially if he (and in Uganda it is more than likely to be “he”, rather than “she”) is installed in that position in a dishonest or illegitimate manner, is unlikely to be held to account for his actions. One thinks immediately, in this instance, of President Museveni, who magnanimously appointed the CIVHR, but prevented it from looking into the many criminal acts perpetrated by his own NRA/M forces
Customary mechanisms of justice were created to deal with the crimes of the enfranchised: able-bodied (and –minded) men. Likewise, customary law practices have tended to leave out the criminal wrong-doing of those who come from outside of the community.
also frequently the case that those who hold high positions elsewhere feel, themselves, exempt from processes of justice—or are not held accountable by others who are too scared to do so because of perceived ramifications.
it is important to call into question the legitimacy they claim.
Roht-Arriaza, Naomi (2006). The New Landscape of Transitional Justice
For an excellent description of mato oput see Finnstrom, Living With Bad Surroundings, 297-299.
Geiko Müller-Fahrenholz, The Art of Forgiveness: Theological Reflections on Healing and Reconciliation, (Geneva: WCC Publications, 1997), 36
“UNDMT Technical Group Status Report: Preparatory Planning for Displaced Persons” as cited in Chris Dolan, “Understanding War and Its Continuation: The Case of Northern Uganda,” (Ph.D. diss., University of London, 2005), 167.
Joanna R. Quinn, “The Role of Informal Mechanisms in Transitional Justice,” a paper prepared for presentation on the panel, “Transitional Justice: Local and International Dimensions,” at the Canadian Political Science Association Annual Meeting, 2 June 2005.
Antjie Krog interview by Philip Coulter, in Walk to Freedom (Ideas, Canadian Broadcasting Corporation, 2004).
Quinn, “The Politics of Acknowledgement.”
H. Patrick Glenn, Legal Traditions of the World: Sustainable Diversity in Law (Oxford: Oxford University Press, 2000), 336. The elements discussed here are sometimes identified as the “Communitarian Restorative Model.” See Harrell, Rwanda’s Gamble, 59-65.
Building relationships with the other person. You understand better what they want and where they want to go, and you can discover some more. Negotiation does not have to viewed as a way of destroying or stressing out relationships.
You can build trust and demonstrate trustworthiness. If there's a disparity in power, leverage, information, AND you're dealing with a party what's gonna use that and take advantage you can leave the room feeling abused.
Having a good day, because you negotiated. Some days of negotiating you look forward to and are the best days. Others you dread.
Getting a good deal. Negotiating as a success means getting what you want for a price that's acceptable to you.
Become a trusted negotiator. Who has high character, competent, and empowered to make a decision. That is the right party for the other person to deal with.
Figure out the BATNA - best alternative to negotiation agreeing.
Get something out of it. If someone's shouting and threatening, you can get the high moral ground or at least information.
Inside negotiations are the toughest. They're the least forgiving. And the most important ones to lose.
You can get to a deeper level, when you know you're not going to agree. You can sit down with him and say OK here's where I think our conflict is coming. 'What would it take to develop a better relationship? What would it take to make this deal?'
Create a lasting agreement with some elasticity down the road, that doesn't terminate in a lawsuit six months later. A function of how how much trust you've developed.
From 'Primates—A Natural Heritage of ConflictResolution' by Frans B. M. de Waal
Behavioral signs of anxiety have indeed been measured in aggressors, especially after conflict in high-quality relationships.These findings fit the prediction that aggression-induced anxiety concerns the social tie and suggest an interesting emotional mechanism: Conflict in valuable relation-ships induces greater anxiety, which in turn creates a greater need for calming PC con-tact with the opponent.
As a testimony to the effectiveness of these mechanisms, aggression can become quite common in close relationships without endangering them. Thus, not only do macaque mothers, daughters, and sisters show high levels of grooming and mutual support,they also frequently fight; in fact, they do so more often than unrelated females. This paradoxical finding can be explained by assuming that the more compatible or secure a relationship (38), the more the threshold for conflict can be lowered without posing a threat to that relationship. The same may apply to entire species, such as some conciliatory and tolerant macaques, which also exhibit high rates of mild aggression.These high rates may reflect the reduced cost associated with aggression in a society in which reconciliation is easy.
The only way to obtain popcorn would be for two monkeys to sit side by side at a dispenser, a procedure that attached significant benefits to their relationship. After this training, subjects showed a three times greater tendency to reconcile after an induced fight than subjects that had not been trained to cooperate.
Other options are avoidance of the adversary (common in hierarchical and territorial species) and the sharing of resources(common in tolerant species)
After having weighed the costs and benefits of each option,conflict may escalate to the point of aggression, after which there still is the option of undoing its damage by means of reconciliation, which option will be favored by parties with shared interests.
Cognitive prerequisites for reconciliation are minimal. It is essential that members of the species recognize each other individually and that participants in a fight remember their opponent’s identity. In addition, as seen above, reconciliation probably involves evaluation of the benefits derived from relation-ships: Appreciation of relationship value will prevent risky overtures (any rapprochement carries the possibility of renewed conflict) for little gain.
individuals sometimes adopt a control role,breaking up fights or systematically protecting the weak against the strong. At other times they intervene peacefully or try to calm down one of the participants. In species in which large males defend units of several females, such as Chinese golden monkeys (Rhinopithecus roxellanae), the leading male may maintain harmony by interposing himself between female contestants while holding their hands, and stroking or grooming both of them.Triadic reconciliation.In macaques and vervets (Cercopithecus aethiops), relatives of the victim may seek contact with the opponent. For example, a mother may approach and groom the attacker of her daughter in what appears a reconciliation “on behalf ” of her offspring. Such third-party contacts seem to serve the relations between entire matrilines. Similarly, there exist field reports of intergroup reconciliations spear-headed by the alpha females of different monkey groups.Third-party mediation.In perhaps the most complex pattern, thus far known of chimpanzees only, a female acts as catalystby bringing male rivals together. After a fight between them, males may remain oriented toward each other, staying close, but without either one initiating an actual reunion. Fe-males have been observed to break the dead-lock by grooming one male, then the other,until she has brought the two of them together, after which she withdraws.
According to the relational model, aggressive behavior is one of several ways in which conflicts of interest can be settled. Other possible ways are tolerance (e.g., sharing of resources), or avoidance of confrontation (e.g.,by subordinates to dominants). If aggression does occur, it depends on the nature of the social relationship whether repair attempts will be made, or not. If there is a strong mutual interest in maintenance of the relationship, reconciliation is most likely. Parties negotiate the terms of their relationship by going through cycles of conflict and reconciliation.
Traditionally, cost-benefit analyses have started from the assumption that animals neither know nor need each other. Thus, the rarity of lethal aggression was attributed entirely to the physical deterrent posed by the opponent’s fighting abilities. In many social animals, however, both parties stand to lose if escalated fighting damages relationships.
Among preschoolers, two forms of conflict resolution have been noticed: peaceful associative outcomes,in which both opponents stay together and work things out on the spot, and friendly reunions between former opponents after temporary distancing. These two complementary forms of child reconciliation, ex-pressed in play invitations, body contacts,verbal apologies, object offers, self-ridicule,and the like, have been found to reduce aggression, decrease stress-related agitation(such as jumping up and down), and increase tolerance.
One of the single best predictors of peacemaking is positive contact between children before eruption of the conflict, suggesting a concern with the continuity and integrity of interactions with peers.
how friendship increases conciliatory tendency and how peacemaking skills are acquired through interaction with peers and siblings. An impoverished social environment (as in the homeless) deprives children of this essential aspect of socialization (68),causing deficits in conflict management and moral development.
To review: Audio files on Northern Ireland Peace Process