Rethinking African Transnational Justice




Transnational justice is one of the most complex and challenging moral and political challenges of our time, especially in this continent. And it is closely related to the questions of peace and reconciliation.

Raising some generic questions herein, would be important. Specifically, how are we to allow these three virtues – justice, peace, and reconciliation – to live together?

We like to think that they should be able to live together in a common home. Ideally they should cohabit in blissful harmony.

But we know that is not always – in fact is not very often – the case. Justice, peace and reconciliation – the last one including truth-telling and forgiveness – are troublesome room-mates.

Each of them represents a fundamental human demand. And like people who believe passionately in a cause, they can be quarrelsome and demanding, maybe deaf to each other’s concerns. Any one of them, if allowed to set the rules, can easily throw one or both of the others out of the house.

Do we prioritize? Does one come first, and the other follow? Does one dictate to the others? Or are we fated to have them always arguing, some winning sometimes? Will they always blame the other when things go wrong?

But if they cannot agree on every aspect of sharing the household, they should at least be able to agree on a modus vivendi. None should be allowed to overrule the other – at least not all of the time. All should be able to admit their shortcomings.

Let me start with peace. Peace is perhaps the most patient and pragmatic element in the house. It has the fewest demands – but it insists they come first. Peace – in the limited sense of stopping war, namely what is known as ‘negative peace’ – is typically a compact among elites.

It is a deal to stop killing in the short-term. But most philosophers of peace are not happy with that limited idea: they want to see peace as something positive, something that is more than living without the immediate threat of war, and instead as something that contributes to a fulfilling life.

We need to ask ourselves: What kind of peace can we settle for? Are we ready to sacrifice other ideals just in order to silence the guns? Or is the silent violence of oppression just as much an abrogation of human dignity and aspiration, as overt physical violence itself?

The nature of peace is a context for everything else that follows. We, who are associated with the international institutions for making and sustaining peace, tend to celebrate peace agreements and insist that what follows is post-conflict, post-war, post-violence. But for those with longer historical memories and deeper fears, they may see this as the inter-war, the period in which they have a welcome respite from the conflict of yesterday, but they must prepare for the eventuality of a new armed conflict tomorrow. This is of course a perfectly reasonable fear, given the propensity of peace deals to break down.

But we need to ask, in the context of such different kinds of peace, where do justice and reconciliation lie?

Justice is a demanding roommate, principled and argumentative. It can be quite difficult to live with, quite ready to take on superior airs, often unwilling to compromise.

It is a common popular demand. After war and atrocities, people are angry and bitter. They may be vengeful, and that emotion can readily be channeled into an uncompromising demand for justice. But people often have an unrealistic idea of what justice will entail.

We have to ask, what do people truly mean when they demand justice? Trials? Punishment? Of how many?

We need to ask also, how is transitional justice different from justice per se? Is it a compromised form of justice, in which certain judicial principles are sacrificed for a political goal?

The concept of ‘transitional justice’ arose in contexts in which a country was transitioning from one political system – dictatorship – to another – democracy. It was particularly associated with Latin America.

But we have to ask ourselves, do the tools of transitional justice apply equally in a situation in which it is not clear what kind of political transition we are undergoing?

For example, should we see the International Criminal Court (ICC), as a standing international tribunal, as a mechanism of transitional justice at all? Or is it simply a mechanism of justice, period?

Let me turn to reconciliation. It is the most patient one, the one seeking compromise. Or is she?

Maybe she is actually the most demanding, not ready to stop at brokering a deal, not ready to shunt the issues of dispute into judicial procedures – it is the one who insists that everything is talked through, and the roommates truly come to understand one another. That, as we all know, can be tiresome.

Reconciliation is a by-product of any sustainable peace. Typically it involves truth telling as a prerequisite for forgiveness.

But how much truth are we ready to tell? How far back do we go? And what does it mean truly to reconcile? How sorry do we have to be?

These all are questions that the need thoughtful answers, if we are to cherish sustainable peace.



By Abdul Mohammed
Abdul Mohammed is a regional political analyst. He has participated in multiple mediation efforts of the African Union and United Nations.

Published on May 03,2016 [ Vol 17 ,No 835]


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