This article has been adapted from remarks given by Pierre Hazan in Bangui on December 12-13 at a capacity building workshop for community leaders and civil society organized by the Humanitarian Dialogue Center for Transitional Justice. Pierre Hazan is working with Fondation Hirondelle to develop JusticeInfo.Net, a digital source dedicated to global transitional justice news that will launch in early 2015.
The establishment of a Truth and Reconciliation Commission (TRC) is now part of the transitional justice toolkit for aiding divided societies to begin the slow and difficult process of reconciliation. However, one of the rarely addressed and yet critical questions regarding TRCs is the timing of the establishment of a commission. I will attempt to demonstrate that this timing is tremendously important, as a TRC created prematurely could become dangerous or, even worse, counterproductive, whereas if one is created too late, it can only aspire to a marginal role in society.
As Archbishop Desmond Tutu stated, a society needs to be confronted with its past, and with the most difficult and violent aspects of that past. If societies do not face that past, it will haunt and pollute the present, dangerously risking a renewed cycle of violence and vengeance. Thus the tools of transitional justice are necessary to prevent fresh violence to erupt and to reinforce peace and reconciliation.
This being said, a TRC should not intervene too soon and a series of conditions must be met to ensure the appropriate timing. First, state authority must be upheld throughout the country. Furthermore, the main political forces must accept the mandate of the TRC and cooperate with the process. There are several serious risks if TRC is established prematurely. If a TRC is not perceived as representative by the population it will not gain legitimacy. Additionally, there is the risk of further intimidation or violence against anyone who would testify. In the worst case scenario, a TCR could contribute not to a sense of peace and reconciliation but rather to further destabilization by accentuating divisions and threatening a recent and fragile peace.
It is worth remembering that truth commissions have failed in many countries. In Serbia, the TRC was dismantled early as independent commissioners withdrew their participation due to its politicization. Witnesses in the United Nations (UN) tribunals and in the International Criminal Court (ICC) have been threatened, put in danger, and even assassinated. The ICC prosecutor recently announced that she could no longer prosecute Kenya’s president, who she believes is guilty of crimes against humanity, because, according to her, witnesses in the case are too afraid to testify. All of these examples underline that the difficult tasks of a TRC require a favorable environment in order to be productive.
On the other hand, we know from experience that the criteria for a successful TRC include society’s ownership of the process. This implies that the parliament of the country is actively involved, and that society as a whole can debate the TRC’s mandate, legitimacy, the representative nature of its conveners, methods of reparation and reconciliation. Along side these questions, forgiveness, amnesty, punishment, protection of minorities, guarantees of non-repetition and democratization processes must also enter into the debate.
All of this assumes sufficient public and political space for these discussions to take place. For this reason, the TRC in South Africa is frequently cited as an example, owing to the fact that it was the first time that public hearings were held, that the media was given access to the proceedings, that society fully participated to the debates, and the highest judicial Court discussed the legality of the amnesty law in exchange of a full disclosure of the crimes committed. . The TCR framework was included in the postamble of the interim South African Constitution. The wider global community celebrated the South African TRC because it accompanied a process of democratic transformation. The point I want to emphasize here is that the timing of the TRC was ideal. If the South African TRC had intervened earlier, the political conditions would not have been conducive and would have risked considerable and widespread violence, creating additional tension in an already fragile environment. Similarly, had the TRC been created only recently in South Africa, it would have missed its target as it could have only generated marginal interest.
To cite several other examples, the TRC in Tunisia has set to work. The country’s revolution in 2011 led to the departure of longtime President Ben Ali and to democratic elections. Currently, state authority is exercised throughout the country, and despite some sections of the population rejecting the selection of commissioners, Tunisia meets the minimum conditions for a favorable environment for the TRC. In Burundi, the peace agreement dates to 2000 and provides for the establishment of a TRC and a special tribunal. However, it was only last week that TRC commissioners were appointed, fourteen years after the decision to create these instruments of transitional justice. Some have cited concerns at the creation of the TRC during a pre-electoral cycle, demonstrating the importance of timing in the successfulness of a TRC. In Rwanda, the Gacaca courts were created in 2001, seven years after the genocide. It is only now that the former president of Chad is being tried by the Extraordinary African Chambers in Dakar for crimes he committed whilst in power 25 years ago. All this suggests that there is a time for war, a time for peace accords, and time for truth and justice, when political conditions are conducive.
Conversely, several TRCs have intervened far later in the process, and frankly, too late. Brazil’s truth and reconciliation process ended only recently, as did that of Canada, which had a mandate of examining the treatment of the native population. These TRC attracted the attention of limited sectors of the population as the broader public was more concerned with other issues as the truth and justice processes primarily generated interest among the victims and their descendants.
With these examples in mind, one might ask what should be done in the current situation in Central African Republic (CAR). Do nothing at all, since the time for a TRC has perhaps not yet arrived? I believe the opposite, namely that the Central African people have shown initiative by setting up local mechanisms for mediation and reconciliation. I recall several mayors from different districts in Bangui that I met, organizers of the religious platform, community organizers, and local media organizations like Radio Ndeke Luka and community stations that carry out fieldwork.
We can and we must take note of what is happening at the local level and actively support these many discussion, mediation and reconciliation initiatives which are able to intervene in an unobtrusive way. All of these initiatives and debates taking place predominantly informally at the local level are, in my opinion, a great asset for CAR’s present and future. These initiatives will support and inform the national consultation process, in and of itself an important milestone for the CAR. These initiatives will guarantee a thorough and widespread reconciliation process when war finally cedes to peace. And with its modest means, the Humanitarian Dialogue Center for Transitional Justice is ready to provide expertise and support for these initiatives.
Photo: Fondation Hirondelle