Global Facilitation Network for Security Sector Reform (GFN-SSR)

Introduction: Tradition-based Approaches in Peacemaking, Transitional Justice and Reconciliation Policies

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What role does traditional justice play in dealing with legacies of human rights abuses? How can interpersonal and community-based practices interrelate with state-organised and internationally sponsored forms of retributive justice and truth telling? This International Institute for Democracy and Electoral Assistance (International IDEA) report provides a comparative analysis of traditional justice mechanisms in Rwanda, Sierra Leone, Mozambique, Uganda and Burundi. Most of the countries studied combine traditional justice and reconciliation instruments with other transitional justice strategies.

Transitional justice refers to the policies adopted in post-conflict societies to manage legacies of human rights abuses. Guilt and punishment, victimhood and reparation are viewed as collective in most African societies. Modern justice systems are designed to identify individual responsibility. The relative merits of formal, rational-legalistic strategies and informal, ritualistic-communal strategies are the subject of ongoing debate. In practice many transitional justice policies combine elements of both approaches.

The objectives of transitional justice are to heal victims, repair the social fabric and protect the peace. Reconciliation, accountability, truth telling and restitution for damage inflicted are the critical dimensions of tradition-based forms of conflict resolution after civil war and genocide:

• Traditional techniques have been greatly altered in form and substance by the impact of colonisation, modernisation and civil war. They are hybrids and move back and forth between their origin and capture by the state.
• Civil society in its various forms normally sets the rules, appoints personnel and monitors implementation of indigenous practices. High degrees of public participation and sharing of experiences typify the case studies.
• Reconciliation is a primary goal of many traditional justice activities, often focusing on the return of ex-combatants. However, reconciliation and forgiveness do not exclude the search for acknowledgement, responsibility and restitution.
• All of the traditional mechanisms studied require the performance of reparation for the victims, although it is not clear that reparation has sufficiently materialised in the context of mass violence.
• While truth telling may be integral to many traditional mechanisms, the form it takes is not necessarily the ‘Western’ confessional model of the South African Truth and Reconciliation Commission.

Timing and sequencing is an important dimension of the transition agenda in volatile post-conflict contexts. The place of justice, particularly trials, on the post-conflict agenda depends on the conjunction of political, cultural and historical forces:

• Prosecutions and retributive justice can potentially destabilise peace settlements and democratisation. The insistence of international law on the duty to prosecute may restrict the policy choices national authorities can make.
• The case studies demonstrate considerable diversity in terms of official recognition and the degree of integration of traditional mechanisms into transitional justice policies.
• Traditional practices differ in the way objectives of reconciliation, accountability, truth seeking and reparation are prioritised.
• Transitional justice is part of a broader objective to consolidate the authority and legitimacy of the new regime, including control over the justice sector.
• The formalisation of informal justice mechanisms and possible politicisation and ‘state capture’ of traditional leadership can reduce the potential of traditional institutions for conflict regulation.

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