Transitional justice is a response to the extensive and systematic violations of human rights.1 It seeks acknowledgement for victims and encourages the probability of peace, reconciliation and democracy.2 Transitional justice should not be seen as a special form of justice but justice modified to societies transforming themselves after a period of persistent human rights abuse.3 The transformations could be sudden, but some could cover longer periods. This approach emerged in the late 1980s mainly as a reaction to the political dynamism in Latin America and Eastern Europe. On the one hand, human rights advocates and others wanted to address the systematic abuses by former regimes. On the other hand, they also sought to avoid endangering the political transformations that are in progress. Transitional justice is incredibly significant in Africa. Its toolkits offer a method of unravelling the complexities intrinsic in the conception of accountability mechanisms while implementing peace agreements.4
Sriram and Pillay's book, Peace Versus Justice?: The Dilemma of Transitional Justice in Africa, is instrumental for legal practitioners, scholars, policy makers, transitional teams, advocates, activists and human rights campaigners. The book is also crucial because the issue of transitional justice still permeates most African politics, which is undeniably associated with the politics of retribution. The book's methodology embraces the universal theories of transitional justice and peace, while using 'insider' experience from experts who have been members of various reconciliation committees to relate to the peculiar nature of African transitional justice. Thus, the book provides us with detailed research into the general peace and justice dilemmas during transitions even as it specifies the unique nature of African peace and justice mechanisms and approaches from a 'relativist' view point. It also stresses the long-forgotten and rejected traditional African conceptualisation, jurisprudence and interpretation of conflict resolution and the remedies they provide in the local implementation of peace and justice as imposed by international law. The writers are cautious to discuss the complexities in the sharp dichotomy between 'universalist' international law aspirations and the politics of 'local' implementations in relation to the transitional justice framework used in a particular African context.5
Sriram and Pillay's book comes at a fitting time, given the recent political issues and concerns in many parts of Africa. The thrust of the book is that transitional justice requires new governments to promote justice for past abuse to stop ongoing human rights abuse. Transitional justice furthermore investigates past crimes as well as imposing sanctions for perpetrators. However, most recent governments in Africa might not have gained control over certain tribes or ethnic groups or even security forces that may be loyal to an 'overthrown' regime. Part I of the book discusses this in detail. The overriding principle is that governments must balance prosecutions with the need to sustain democratic transitions. Thus in Ghana and South Africa, two countries that have had transitions to democracy, incumbent governments had to set aside victims' rights in the interest of national unity and reconciliation.6
Another significant element of Sriram and Pillay's book is the elucidation of the existing controversy of peace and/or justice. Part II of the book explains that there is no strict pursuance of justice without peace-building processes. Nor there is only a peace-building process without some form of answerability procedures in the near future. Therefore, peace and Justice are inherently linked. Yet there still exists a very sharp distinction between peace and justice although they appear to be intermingled in practice. Transitional justice seeks to be a response to atrocities on the one hand; on the other, it also seeks to be a form of justice which avoids the legal despotism of retributive justice, rising in reaction to this predicament.7 Transitional justice is a double-edged sword. It may lead to peacemaking but it can also cause the breakdown of societies.
Justice has taken a new form in Africa in the last decade.8 The democratisation process has provided a dimension if not an alternative to transitional justice in general and particularly in Africa. In the past, political leaders or perpetrators were immune from prosecution. This has nonetheless changed in the last few years. Of course, this has been aided by the international human rights standards, which enforces accountability mechanisms. The major tool that has carried this transition is the inception of the International Criminal Court (ICC). The book raises the concern that it appears as if the jurisdiction of the ICC is only over Africa.9 The ICC is only focusing on African cases and with the recent mass political revolutions and instability in parts of Africa and theMiddle East, it would seem that the former leaders of countries like Côte d'Ivoire, Libya and Egypt are likely to appear before the ICC. Domestic tribunals also play important roles in transitional justice but the difficulty with relying on domestic tribunals is the perception that they can be used by winners to exact vengeance upon losers in transitional processes.10
Part V of the book draws attention to international law and its relevance in African peace and justice dilemmas. Transitional justice emanates from the principle of international law seeking to curb if not eradicate the atrocities committed as a result of human rights violations. It is in these circumstances that international law and accompanying international institutions are relevant: they are tools and fora for articulating and promoting rights and justice. Modern international rule of law must apply indiscriminately to all, at least in theory, not taking into consideration the time and place. The backbone of international law is the famous principle of equality before the law. Future transitional justice mechanisms should deliver justice and answerability. But such accountability must adapt to the dynamics of African conflicts. Consequently, there is a strong demand to 'set aside' the rule of law itself based on the uniqueness of certain cultures and the history behind atrocities. Thus, the international form of transitional justice should not be applied entirely devoid of exceptions, especially when the political future will be jeopardised by the very same law that seeks to protect and promote justice. Modern rule of law and transitional justice can be counterproductive depending on where they have been applied. Examples abound in instances when justice done or given has led to another civil war or violence. This happens when people who hold or held sensitive political positions are involved.
Two problems explored in Part V of the book are, first, that some observers have asserted that the ICC is an expression of neocolonialism.11 Second, while it would be incorrect to ignore the fact that serious human rights atrocities occur in Africa, there is a genuine concern about the reconstruction of a state and peace building, and the problem of implementing and enforcing international law without carefully analysing local issues.12 The thrust of the argument is not to infer that justice should be substituted for the sake of reconciliation, but that such gestures should be contemplated in totality by weighing the repercussion of raw justice on a state. Consequently, politics could triumph over the law in extraordinary times.13 Other than that, what then would be the point in giving retributive justice to a group of people only for it to result in national political pandemonium, which in most cases results in wars and violence in Africa? Following on from this there is the need to bring in truth and national reconciliation commissions that focus on nation building, reparation and compensation.14
It should be borne in mind that in most affluent societies, victims seek justice more than anything because the state gives compensation and reparation to them. They are therefore concerned with only witnessing their perpetrators brought to justice. This is not the case in Africa. The economies are not as developed, so the future of victims hangs in the balance. Their basic survival is a challenge due to injuries or stigmatisation after the war or abuse. To punish the perpetrators without recognising and providing a systematic approach to resolving perpetual poverty is counterproductive. Reconciliation in Ghana, where there was monetary compensation, presidential apology and the national honour of women, was greatly praised and this should be a model for reconciliation.15
Sriram and Pillay's book is excellent and well-timed. It covers key and sensitive issues about African transitional justice. It is recommended reading for policy makers, scholars, human rights activists, practitioners and those with a general interest in transitional justice.
Nana Kyeretwie Agyeman*
* BA(Hons) (KNUST), LLM (UEL), PhD Candidate (Warwick).
1 What Is Transitional Justice?, International Center for Transitional Justice (2009), available at http://ictj.org/sites/default/files/ICTJ-Global-Transitional-Justice-2009-English.pdf (accessed 10 October 2011).
4 Chandra Lekha Sriram, 'Introduction: Transitional Justice and Peacebuilding', in C. L. Sriram and S. Pillay (eds), Peace Versus Justice?: The Dilemma of Transitional Justice in Africa, University of KwaZulu-Natal Press (2009), p. 5.
5 Suren Pillay, 'Conclusion', in Sriram and Pillay, ibid., p. 352.
6 Yasmin Louise Sooka, 'The Politics of Transitional Justice', in Sriram and Pillay, supra note 4, p. 21.
7 Pillay, supra note 5, p. 349.
9 Chandra Lekha Sriram, 'The International Criminal Court Africa Experiment: The Central African Republic, Darfur, Northern Uganda and the Democratic Republic of the Congo', in Sriram and Pillay, supra note 4, p. 317.
10 Pillay, supra note 7.
11 Sriram, supra note 9, p. 320.
12 R. Baah, Human Rights in Africa: The Conflict of Implementation, University Press of America (2000), p. 45.
13 Pillay, supra note 7.
14 Kenneth Agyemang Attafuah, 'A Path to Peace and Justice: Ghana's National Reconciliation Commission in Retrospect', in Sriram and Pillay, supra note 4, p. 187.
15 Ibid., p. 196.