Traditional Justice and Reconciliation After Violent Conflict. Learning From
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Traditional Justice and Reconciliation after Violent Conflict Learning from African Experiences Traditional Justice and Reconciliation after Violent Conflict Learning from African Experiences Editors Luc Huyse Mark Salter Contributors Luc Huyse Bert Ingelaere Victor Igreja Beatrice Dias-Lambranca James Ojera Latigo Joe A.D. Alie Assumpta Naniwe-Kaburahe I International IDEA publications are independent of specific national or political interests. Views expressed in this publication do not necessarily represent the views of International IDEA, its Board or its Council members. © International Institute for Democracy and Electoral Assistance 2008 Applications for permission to reproduce or translate all or any part of this publication should be made to: International IDEA SE - 103 34 Stockholm Sweden International IDEA encourages dissemination of its work and will promptly respond to requests for permission to reproduce or translate its publications. Cover photo: B. Dias Lambranca (During a nocturne healing session in central Mozambique, a gamba healer shows a bayonet, i.e. a healing instrument, to a female patient as a way to trigger the emergence of the gamba spirit in the body of the patient). Graphic design: Trydells Form Cover design: Kristina Schollin-Borg Printed by: Trydells Tryckeri AB, Sweden ISBN: 978-91-85724-28-4 II Preface A key question facing democracies emerging from civil conflict is how best to deal with the painful legacy of past—and in many cases all too recent—violence, while at the same time maintaining the fragile social harmony that often characterizes post-conflict societies. Should priority be given to bringing the perpetrators of past human rights violations to justice, thereby combating the culture of impunity that has come to characterize many civil conflicts? Or is it more important to start by focusing on measures designed to ensure that peace and stability, and with them the prospects for a country’s longer-term recovery, are bolstered? These are not easy questions, but the dynamics of contemporary conflict compels us to consider them. In regions afflicted by civil wars and violent upheavals, critical aspects of a country’s post-conflict agenda rarely admit of easy, generalizable ‘solutions’. Increasingly, the accepted wisdom is that the best resources—and hence the best ‘answers’—to the many seemingly intractable dilemmas of managing the consequences of violent conflict lie within countries themselves. In Africa in particular, an undervalued indigenous conflict management resource is to be found in the sphere of traditional social mechanisms. Prompted by the Rwandan experiment with Gacaca, a ‘modernized’ approach to an indigenous form of dispute settlement developed and applied in the aftermath of the 1994 genocide, international attention to the potential role of traditional mechanisms in reconciliation and transitional justice strategies has increased. Most recently in Uganda, debate over the respective roles of the International Criminal Court and the traditional reconciliation practices of the Acholi people in ongoing efforts to achieve a peaceful settlement of the country’s two- decades-long conflict indicates that traditional mechanisms are increasingly in the policy spotlight. There have been too few systematic attempts to analyse and assess the role and impact of traditional mechanisms in post-conflict settings. This report aims to address this gap by examining the role played by traditional justice mechanisms in dealing with the legacy of violent conflict in five African countries—Rwanda, Mozambique, Uganda, Sierra Leone and Burundi. These case studies are used as the basis for outlining conclusions and options for future policy development. The report is intended to serve both as a general knowledge resource and as a practitioner’s guide for national bodies seeking to employ traditional justice mechanisms as well as external agencies aiming to support such processes. It suggests that in some circumstances traditional mechanisms can effectively complement conventional judicial systems and represent a real potential for promoting justice, reconciliation and a culture of democracy. In addition, even in situations where communities are more inclined to demand III straightforward retribution against the perpetrators, traditional justice mechanisms may still offer a way both of restoring a sense of accountability and of linking justice to democratic development. At the same time the report also cautions against unrealistic expectations of traditional structures. It offers a sober, evidence-based assessment of both the strengths and the weaknesses of traditional conflict management mechanisms within the broader framework of post-conflict social reconstruction efforts. Vidar Helgesen Secretary-General International IDEA IV Acknowledgements We are very grateful to our member state, Belgium, for providing the funding that made the ambitious project of which this report is a key outcome possible. Not for the first time, International IDEA owes an immense debt of gratitude to Professor Luc Huyse, lead researcher on the project who as well as authoring key sections of the report has lent his extensive knowledge and expertise to every stage of its development. Additional thanks are due to Klaas de Jonge for research in the demanding initial stages of the project, to Stef Vandeginste of Antwerp University for his professional advice and assistance, and to Mark Salter of International IDEA’s Democracy Analysis and Assessment Unit who has managed and shepherded the project through from start to finish. Thanks are also due to Eve Johansson for her professional input in editing this publication; to Andrew Mash for proofreading the final text; and to Florencia Enghel, International IDEA’s Publications Manager, for ensuring smooth production of the final report on behalf of the Communications Team. Last but not least, we acknowledge with gratitude and appreciation the key role of the country case study authors in bringing this project to fruition. V Contents Preface ........................................................................................................................................ III Acknowledgements ...................................................................................................................... V Acronyms and abbreviations ..................................................................................................... XII Chapter 1. Introduction: tradition-based approaches in peacemaking, transitional justice and reconciliation policies Luc Huyse ...................................................................... 1 1. Traditional mechanisms in a broader context ......................................................................... 2 1.1. An ongoing debate ...................................................................................................... 3 1.2. The rise of a cross-cultural perspective ..................................................................... 5 1.3. Traditional justice and reconciliation systems: from a normative approach to a more realistic view ................................................. 6 2. Investigating tradition-based practices: problems of terminology and methodology ........... 7 2.1. A tricky terminology .................................................................................................... 8 2.2. Methodological pitfalls and choices .......................................................................... 8 3. Five African experiences ........................................................................................................ 10 3.1. The ambitions of justice after transition .................................................................. 10 3.1.1. General goals ......................................................................................................... 10 3.1.2. Four instrumental objectives .................................................................................. 11 3.2. Two salient features ................................................................................................. 13 3.2.1. Ritualistic-communal procedures ........................................................................... 14 3.2.2. Civil society as the main stakeholder ................................................................... 15 3.3. An impressive diversity ............................................................................................ 16 3.4. Tradition-based mechanisms: from aversion to full integration .............................. 17 3.4.1. The need for a comprehensive approach .............................................................. 17 3.4.2. How to merge different strategies? ....................................................................... 20 References and further reading ................................................................................................. 21 Chapter 2. The Gacaca courts in Rwanda Bert Ingelaere ............................................... 25 1. The Rwandan conflict ............................................................................................................ 25 1.1. The distant origins of the conflict (up to 1962) ....................................................... 25 1.2. Bahutu and Batutsi under the Habyarimana regime ................................................ 27 1.3. Civil war, multiparty democracy and genocide (1990–4) .......................................... 28 1.4.