Transitional justice comprises legal and non-legal measures that are implemented in order to (1) address and acknowledge systemic human rights violations, (2) transition a society into a new manifestation of itself in which those violations no longer exist, and (3) render justice to victims of those previous violations.

Transitional justice measures can include formal criminal prosecutions, truth commissions, reparations, and other types of institutional reform. A number of African Union (AU) member states have experienced or are experiencing the application of these mechanisms. As post-colonial, post-conflict states with developing economies and societies, members of the AU are in need of transitional measures as a means to move forward from past atrocities. It is therefore pertinent to discuss how such systems can assist these nations.

A BRIEF HISTORY OF TRANSITIONAL JUSTICE

Transitional justice has had four phases of development. The first phase began after World War II with the Nuremberg Trials, with the second phase following the fall of communist rule in Eastern Europe, various South American dictatorships and apartheid in South Africa and the third phase being the system of international criminalisation premised on the concept of human rights which includes the International Criminal Tribunals for Rwanda and Yugoslavia respectively as well as the International Criminal Court. 

We are currently in the fourth phase, which views “transitional justice” as a term that is not strictly legal, but one that encompasses a wide variety of disciplines, including economics, psychology, and politics, with the ultimate aim being peace and justice.

ASSESSING THE 2019 AFRICAN UNION TRANSITIONAL JUSTICE POLICY

Africa has had much contact with transitional justice measures during the post-colonial period on an ad hoc, state by state, basis. From the Gacaca Courts in Rwanda, to truth commissions in Kenya, Côte d’Ivoire and most notably, South Africa, there has been a relatively consistent use of transitional justice as a means to move forward from past human rights abuses. However, the continent has never had a unified strategy in this regard.

This changed at the 2019 AU Summit in February, with the unanimous adoption of the African Union Transitional Justice Policy (AUTJP). Subject to the nature of its implementation, the policy remains in the realm of soft law—that is, law that is yet to be considered binding.

Nevertheless, the AUTJP represents a unified African policy for dealing with conflict, the legacy of colonialism and development goals. It promotes the peaceful resolution of conflict, the rejection of impunity and the sanctity of human life.

The framework places greater emphasis on reparations and means of reconstructing communities following periods of human rights abuses, and is therefore in line with international trends of transitional justice in its “fourth phase,” which constitutes a multifaceted approach beyond mere criminal prosecutions.

The promise of the AUTJP is increased unity amongst African Union (AU) member states, particularly as the continent continues to attempt to address inequality and instability rooted in past atrocities. It is an ambitious but necessary policy, one that will require consistent implementation and a number of considerations, including but not limited to involvement of civil society, the general public, and experts in order to be effective.

Human Rights Pulse Managing Editor, Vaughn is passionate about sustainability and human rights, his scholarship and writing focuses on international law, climate change and transitional justice.

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