STUDY ON TRANSITIONAL JUSTICE AND HUMAN AND PEOPLES’ RIGHTS IN AFRICA STUDY ON TRANSITIONAL JUSTICE AND HUMAN AND PEOPLES’ RIGHTS IN AFRICA ACHPR 31 Bijilo Annex Layout Kombo North District Western Region PO Box 673 Banjul The Gambia Tel: (220) 441 0505 / 441 0506 Fax: (220) 441 0504 Email: [email protected] www.achpr.org © 2019 African Commission on Human and Peoples' Rights Designed and typeset by COMPRESS.dsl | www.compressdsl.com Contents Preface iii Executive summary v Acronyms viii PART I: INTRODUCTION 1 Background to the Study on Transitional Justice1 in Africa Defining the scope of Resolution 235 2 Methodology 4 Report outline 5 PART II: AFRICAN EXPERIENCES AND PERSPECTIVES ON THE PRACTICE OF AND DISCOURSE ON TRANSITIONAL JUSTICE 7 Africa’s experience with transitional justice processes 7 Approaches to transitional justice in Africa 9 Accountability through criminal prosecutions 9 Truth, reconciliation and social healing processes12 Reparation and redistributive measures 15 Institutional and political reform 17 Local and indigenous justice mechanisms 17 Current issues in and perspectives on the mainstream discourse and practice of transitional justice 19 Gender and transitional justice 19 Timing and sequencing 21 Balancing of competing transitional justice 22 objectives Clemency and amnesty 22 The limits in the mainstream discourse and practice of transitional justice 24 Conclusion 27 PART III: REVIEW OF CONTINENTAL LEGISLATIVE FRAMEWORK RELEVANT TO TRANSITIONAL JUSTICE 28 The African Charter on Human and Peoples’ Rights 28 Civil and political rights 29 Economic, social and cultural rights 31 People’s rights of the African Charter 33 Duties of individuals 35 The Maputo Protocol 36 The African Charter on the Rights and Welfare of the Child 37 Constitutive Act of the African Union 37 Protocol establishing the Peace and Security Council of the AU and subsidiary instruments 38 Kampala Convention 39 PART IV MECHANISMS AND PROCEDURES FOR PURSUING TRANSITIONAL JUSTICE IN THE AFRICAN HUMAN RIGHTS SYSTEM 40 Communications procedure 41 State report review process 44 Promotion missions 46 Responding to violent conflicts, series of serious and massive violations: On-site investigations, resolutions and good office of the African Commission 48 Statements and resolutions 49 Special mechanisms 51 Conclusion 55 PART V: CHARTING A COMPREHENSIVE AND SYSTEMATIC APPROACH OF THE ACHPR TO TRANSITIONAL JUSTICE IN AFRICA 56 African Charter-based approach to transitional justice in Africa 56 Integrating transitional justice in all the Commission’s work 59 Communications procedure 59 State periodic report review process 60 Resolutions and statements 61 Promotion missions and investigative missions61 Special mechanisms of the Commission 61 Conclusion 62 PART VI: CONCLUSION AND RECOMMENDATION ON INSTITUTIONAL MECHANISM FOR TRANSITIONAL JUSTICE IN THE COMMISSION 63 Conclusion 63 Recommendations 64 Annexures 67 ii | STUDY ON TRANSITIONAL JUSTICE AND HUMAN AND PEOPLES’ RIGHTS IN AFRICA Preface Africa’s engagement with the issues pertaining to transitional justice (TJ) has a long history. TJ as we know it today became a core tenet of processes to deal with the consequences of conflict and authoritarian rule in the 1990s. Since then, scores of African States have made use of or are making use of TJ mechanisms in various forms in order to come to terms with the past and build a shared future of inclusive democratic and developmental systems of governance. Furthermore, given that a number of States are still actively experiencing conflict or acts of repression, the need for processes to achieve sustainable peace remains ever pertinent. While the African Commission on Human and Peoples’ Rights (ACHPR) engaged the issue of TJ in Africa and made some useful pronouncements, there has been a lack of comprehensive guidance on how the African Charter best informs and shapes TJ processes to ensure adherence to the rights guaranteed in the Charter. The Study on Transitional Justice and Human and Peoples’ Rights in Africa is the first concrete step taken by the ACHPR to elaborate a Charter-based approach to TJ and elucidate the role of the Commission in TJ processes and mechanisms on the continent. The study draws on TJ literature, the various experiences of TJ as peculiar to the African continent, as well as the unique tools and mechanisms at the disposal of the ACHPR, to develop a comprehensive and coordinated African Charter-based approach for engaging with TJ within its mandate of promoting and protecting human and peoples’ rights. I hope that the implementation of the recommendations of the study, including the designation of a special mechanism, will go a long way in enabling the ACHPR to have effective and systematic engagement with TJ processes. I also urge other stakeholders to make use of this study and to cooperate with the ACHPR in its implementation. The adoption of this study during the 24th Extra-Ordinary Session of the ACHPR in August 2018 was the culmination of many years of hard work and dedication by a large group of people. I would like to commend the Commission for achieving this milestone and to thank my colleagues for their invaluable inputs. In particular, I wish to acknowledge with appreciation the unwavering support of the Centre for the Study of Violence and Reconciliation, which served as the secretariat for this study, for their key role from the inception to the final publication of this study. My appreciation must also go to the members of the Advisory Panel, the legal officers at the ACHPR Secretariat, Abiola Idowu-Ojo and Elsabé Boshoff, everyone who PREFACE | iii took part in the regional consultations and experts’ reviews, as well as all the other people who contributed to this study in one form or another. We would not have been able to produce a study of this quality and substance without your contributions. Solomon Ayele Dersso Commissioner Focal Point for the TJ Study iv | STUDY ON TRANSITIONAL JUSTICE AND HUMAN AND PEOPLES’ RIGHTS IN AFRICA Executive summary The African Union (AU) defines transitional justice (TJ) as “the various (formal and traditional or non-formal) policy measures and institutional mechanisms that societies, through an inclusive consultative process, adopt in order to overcome past violations, divisions and inequalities and to create conditions for both security and democratic and socio-economic transformation”. TJ is thus directed at ending violence and the attendant injustices in societies emerging from armed conflict or authoritarian repression and establishing an inclusive rule-based political and socioeconomic system that is able and willing to enforce human and peoples’ rights. It does this through a set of judicial and non-judicial measures that have retributive and restorative elements, ensuring that perpetrators are held accountable while providing redress to victims and building social harmony as well as achieving institutional reform and socioeconomic inclusion. Over the past three decades, TJ has become a common feature of peacebuilding in Africa. Due to a combination of bad governance and external interference since the end of direct colonial rule, a number of countries on the continent have struggled with intra-State conflicts, ranging from electoral violence to civil war. These conflicts are rooted in social inequalities established under colonialism, as well as abusive and extractive practices by dictatorships, military juntas, and the elites of post- independence States. Fierce contestation and the absence of consensus among rival elites in conditions of ethno-culturally charged political polarisation have exacerbated old grievances. In this context, African States have increasingly looked to TJ to help address historical divisions and prevent the recurrence of conflict. The AU has demonstrated a similar focus on issues of peace, justice and reconciliation. This has included developing the AU Transitional Justice Policy (AUTJP), a continental policy on TJ that aims to guide African member States emerging from conflict or authoritarian rule in their quest to transition to peace and democratic order. The AUTJP has been under consideration for adoption by AU Heads of State and Government at the time of the consideration and adoption, with amendment, of this study. Having regard to the human and peoples’ rights undercurrents of TJ and the recourse of many member States to some form of TJ process and the rising policy interest in Africa, the African Commission on Human and Peoples’ Rights (ACHPR) EXECUTIVE SUMMARY | v passed a resolution on TJ in Africa. Resolution 235 called for a study on TJ mechanisms on the continent, with the aim of identifying the legislative framework for TJ in Africa, determining the ACHPR’s role in implementing the AU’s TJ policy and supporting related work, and analysing the possibility of the ACHPR establishing a special continental mechanism on TJ. This report presents the outcomes of the study, undertaken with the support of the Centre for the Study of Violence and Reconciliation assisted by an advisory group. The study outlines the various human and peoples’ rights issues that arise in planning and implementing TJ processes and the role of the African human rights system in informing and regulating these processes. The in-depth review of TJ efforts on the continent demonstrates that measures have been implemented in a rich, diverse, but also uneven manner, depending on the historical and political context of each country. These experiences show