Case Studies
Last Updated: April 13, 2009
Below are presented a few case studies. Comments and suggestions are welcome. We want in particular to give concrete elements about what has been implemented so far in different contexts, including why, how, what the main outputs and outcomes have been, what are the different points of view on each particular experience, where visitors can find more resources useful for their own context, etc. By giving access to a vast array of perspectives and experiences, the portal should enable users to create the knowledge they need for their own context. As an evolving platform, we will continue to expand this database of experiences as the project progresses.
Rwanda: gacaca justice
Rwanda's gacaca represents the paradigmatic and most ambitious case of "traditional" justice in post-conflict societies.Rwanda's recent history is exceptional by any standard: genocide of unimaginable magnitude (an estimated 500,000 to 800,000 civilians killed in 100 days) perpetrated by a massive number of individuals. As a result, post-genocide Rwanda faced formidable reconstruction challenges. The formal justice system was extremely weak and unable to process the thousands of genocide suspects. This led to an enormous backlog of cases, and it is estimated that it would have taken the formal justice system more than a century to process all genocide-related cases. By 2001, only about 6,000 detainees of about 110,000 had been sentenced. "At that rate, government officials reasoned, the trials would not finish for a generation or more." This extraordinary context led the government to introduce in 2002 a second process and reinvent gacaca.
Gacaca means "small lawn" or "small grass" in Kinyarwanda, and has been a traditional practice of dispute resolution since before the colonial period. It was a community dispute resolution practice not unlike others across Africa and other parts of the world, with a particular emphasis on restoring social harmony and order (what we now call "restorative justice").
Yet it is important to distinguish between traditional gacaca and modern gacaca. To begin with, it is necessary to dispel several prevalent misconceptions. First, there is no logical evolution from traditional to modern gacaca. Second, the use of gacaca to address genocide-related crimes was neither inevitable nor obvious. As one scholar writes: "Rather than viewing post-genocide gacaca as indigenous, which connotes a native enterprise, occurring 'naturally' and inevitably accepted by the local population, we should view it as endogenous: initiated and synthesized within Rwandan society but - because of the complicated nature of that synthesis, and how markedly current gacaca differs from the original practice that partly inspired it - viewed by much of the population as a new, and perhaps confusing or even disagreeable, entity." Third, gacaca is not an exclusively restorative mechanism; rather, "gacaca has always been an uneasy mix of restorative and retributive justice: confessions and accusations, plea-bargains and trials, forgiveness and punishment, community service and incarceration."
Contemporary gacaca is a novel combination of informal and formal elements of justice, "a hybrid of traditional and modern elements." As such, there are both similarities and differences between the two types of gacaca. A key similarity is the participatory, community-driven nature of the proceedings. Another similarity is that gacaca judges (that is, the inyangamugayo) are non-judicial persons. In fact, the Gacaca Law of 2001 states that local judges must not be lawyers (or public officeholders). But the differences between traditional and present-day gacaca may be more significant. First, contemporary gacaca is an official state institution that applies codified, not customary, law. Second, gacaca courts are trying serious crimes, including genocide, whereas traditional gacaca mainly dealt with civil (village and familial) matters. Third, whereas the judges in traditional gacaca were male community elders, the judges now are elected, with a considerable percentage of women.
According to its architects (namely, the Rwandan government), the modern use of gacaca has several objectives: a) to establish the truth about what happened; b) to accelerate the legal proceedings for those accused of genocide crimes; c) to eradicate the culture of impunity; d) to reconcile Rwandans and reinforce their unity; and e) to use the capacities of Rwandan society to deal with its problems through a justice based on Rwandan custom.
The modern institution of gacaca has three principal (and innovative) features. The first feature is the categorization scheme of genocide-related crimes. According to the Gacaca Law of 2004, there are three categories of crimes: Category 1 includes genocide planners, leaders, notorious leaders, and those accused of sexual torture; Category 2 includes cases of intentional homicide, attempted homicide, manslaughter, and serious bodily assault. Category 3 is for property crimes. The gacaca courts have jurisdictions over crimes belonging in categories 2 and 3 (Category 1 crimes are handled by Rwanda's formal justice system). Furthermore, Category 2 cases are to be handled at the sector level, and Category 3 (property crimes) cases at the cell level. The second feature is the principles of plea-bargaining, whereby a defendant's confession of his or her crimes can result in reduced sentences or community service. The third feature is the extensive participation of ordinary Rwandans in prosecuting genocide-related crimes--In October 2001 Rwandans elected 250,000 gacaca judges, called inyangamugayo in Kinyarwanda, which literally means "those who hate evil." The gacaca system is divided into the following components: 9, 013 cells (a cell is a small face-to-face community or a small neighborhood) and 1,545 sectors (a sector is a small village consisting of several cells). Presently, there are a total of 12,103 gacaca courts and 169, 442 inyangamugayo. This is indeed a case of "mass justice for mass atrocity."
The gacaca process consists of two phases. The first, from January 2005 to July 2006, was the information gathering phase through confessions and accusations. Local judges then categorized crimes according to the three types mentioned above. As a result of this first phase, 818, 564 persons would be prosecuted for genocide-related crimes, of which 77, 269 in Category 1 and the rest through the gacaca process. Although the gacaca system was schedule to end by 2007, it has been extended due to the sheer volume of cases.
As the most ambitious experiment in post-conflict traditional justice, gacaca has been the subject of much debate and disagreement. Some, especially international lawyers and human rights advocates, decry gacacas lack of due process and judicial safeguards. Proponents of gacaca see it as an innovative indigenous approach to dealing with accountability and reconciliation. They compare it favorably to international prosecution (and especially ICTR) because it is a holistic "internal solution to internal problems," with both retributive and restorative dimensions.
Yet a growing number of people have come to question gacaca's ability to establish the "truth," reconcile individuals and communities, and foster national unity. In terms of truth-telling, a number of studies have shown that, for a variety of reasons including fear of reprisal, truth does not tend to come out in gacaca proceedings. Second, gacaca proceedings have in fact been marked by low public participation, which contradicts the perception that it is a grassroots endeavor driven by popular demand. Third, there is little evidence that gacaca has led to greater trust and empathy between victims/survivors and perpetrators. This is in part due to the lack of genuine confessions of wrongdoing on the part of perpetrators. As a result, communal coexistence continues to be marked by mutual fear, mistrust, and a lack of deep interaction.
Another set of criticisms deal with the role of gacaca within the context of Rwanda's authoritarian political system. Crucially, the gacaca courts can only deal with the genocide of April-June 1994. This means that widespread crimes committed by the Rwandan Patriotic Army, the military branch of the current ruling party, Rwandan Patriotic Front (RPF), are outside the boundaries of the gacaca and thus remain addressed. This has led to a palpable sense of frustration among Rwandan Hutus, who see the gacaca as an instrument of a victor's justice. More broadly, the state has officially banned the use of ethnic categories, and engaging in "divisionism" is punishable under law. While such policies may seem to rectify the ethnically-driven politics that led to the genocide, critics argue that they are more directly aimed at consolidating a one-party state system in Rwanda.
It is simply too early to evaluate gacaca's long-term implications for social reconstruction in Rwanda. Despite its present shortcomings, however, "perhaps the strongest element in favor of gacaca is the lack of an alternative," even though some observers have noted that the formal justice sector has been doing a better job than it is generally recognized, with an in the quality and fairness of the trials, and no retribution for those acquitted and returned to their colline. After all, in extremely devastated and socially traumatized settings such as post-genocide Rwanda, "there are no easy, cheap, or perfect solutions."
For more information:
Documentary Films
Gacaca: Living Together Again in Rwanda? (2002)
Director: Ann Aghion
In Rwanda we say...the family that does not speak dies (2005)
Director: Ann Aghion
Since 1999, award-winning filmmaker Anne Aghion has travelled to rural Rwanda, to chart the impact of that countrys efforts at ethnic reconciliation. In Rwanda we say...The family that does not speak dies, her second film on the subject, continues Aghions quest to learn how the human spirit survives a trauma as unfathomable as the attempt, in 1994, to wipe out the Tutsi minority, with 800,000 lives claimed in 100 days. In Rwanda we say... is the next chapter in a fascinating and intimate look at how, and whether, people can overcome fear, hatred and deep emotional scars, to forge a common future after genocide.
Aghion's influential 2002 film, Gacaca, Living Together Again in Rwanda? captured the feelings of both survivors and alleged killers in the remote community of Ntongwe, just as the government was announcing the Gacaca, a new system of citizen-based justice intended to handle over 100,000 genocide suspects languishing in detention. In Rwanda we say... returns two years later as close to 16,000 of these suspects, still untried, are released across the country: having confessed to their crimes, and served the maximum sentence the Gacaca will eventually impose, suspects of appalling crimes are sent home to plow fields and fetch water alongside the people they are accused of victimizing.
In Rwanda we say... focuses on the release of one suspect, and the effect of his return on this tiny hillside hamlet. While the governments message of a "united Rwandan family" infiltrates the language of the community, reactions to this imposed co-existence reel from numb acceptance to repressed rage. Violence seems to lurk just below the surface. What unfolds, however, is an astonishing testament to the liberating power of speech: little by little, people begin to talk in a profound and articulate way - first to the camera, and then to each other -- as these neighbors negotiate the emotional task of accepting life side by side.
A third film is under preparation. Both films on Rwanda have been screened all over the world. More importantly, the Belgian NGO, RCN Justice and Democracy, has been screening In Rwanda we say... in the prisons of Rwanda. Over 50,000 prisoners have seen the film, and have engaged in discussion groups on issues of coexistence after the screenings. Screenings and discussion groups have also started nationwide in the communities at large in the fall of 2006.
Documents
Clark, Phil. "Hybridity, Holist, and 'Traditional' Justice: The Case of the Gacaca Courts in Post-Genocide Rwanda." George Washington International Law Review (Spring 2007).
Ingelaere, Bert. "The Gacaca courts in Rwanda." In Reconciliation and Traditional Justice after Violent Conflict: Learning from African Experiences, edited by Huyse, Luc, and Mark Salter (Stockholm: International Institute for Democracy and Electoral Assistance, 2008): 25-59.
Karekezi, Urusaro Alice, Alphonse Nshimiyimana, and Beth Mutamba. "Localizing Justice: gacaca courts in post-genocide Rwanda." In My Neighbor, My Enemy: Justice and Community in the Aftermath of Mass Atrocity, eds. Eric Stover and Harvey M. Weinstein, 69-84. Cambridge and New York: Cambridge University Press, 2004.
Oomen, Barbara. "Rwanda's Gacaca: Objectives, Merits, and Their Relations to Supranational Criminal Law."
Strauss, Scott. The Order of Genocide: Race, Power, and War in Rwanda. Ithaca, NY: Cornelle University Press, 2006.
Uvin, Peter and Charles Mironko. "Western and Local Approaches to Justice in Rwanda." Global Governance 9 (2003): 219-231.
Waldorf, Lars. "Mass Justice for Mass Atrocity: Rethinking Local Justice as Transitional Justice." Temple Law Review (Spring 2006).
Websites
National Service of Gacaca Jurisdictions (Rwanda)
National Unity and Reconciliation Commission (NURC)
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Northern Uganda: Traditional justice and the "Peace versus Justice" debate
The contemporary discussion (and vociferous debate) on traditional justice is largely influenced by and focused on events in Northern Uganda. For many, the case of Northern Uganda encapsulates the paradigmatic dilemma of transitional justice: peace versus justice. This debate is overlaid by a debate on the role of external actors, specifically the International Criminal Court, in post-war societies. The topic of traditional justice has been viewed in the context of these debates.The 20-year conflict between the Lords Resistance Army (LRA) and the government of Uganda has been particularly brutal: 30,000 children have been abducted and forced to become soldiers by the LRA, about 1.7 million people, or 90 percent of the Acholi population, are living in poor IDP (international displaced persons) camps, and thousands of children commute every night to town center to avoid abduction. The Ugandan parliament passed an Amnesty Act in 2000, and since then 23,000 people (or the vast majority former LRA fighters) have benefited from the amnesty. At the same time, however, in November 2003, the Ugandan government made a referral to the ICC, and in August 2005 the ICC issued its first-ever warrants for five LRA senior commanders, including Joseph Kony.
In February 2008, the Ugandan government and the Lords Resistance Army (LRA) signed an Annexure to the Agreement on Accountability and Reconciliation, which stipulates that senior LRA leaders would face prosecution and that lower level perpetrators would undergo traditional justice practices/mechanisms. Crucially, the agreement states that "serious crimes" would be prosecuted through "a special division of the High Court of Uganda," thus eschewing prosecution by the International Criminal Court. The agreement states that "traditional justice shall form a central part of the alternative justice and reconciliation framework," and that "the Government shall, in consultation with relevant interlocutors, examine the practices of traditional justice mechanisms in affected areas, with a view to identifying the most appropriate roles for such mechanisms."
The Acholi traditional justice system
In general terms, the Acholi traditional justice system is characterized by "the voluntary nature of the process, mediation of truth, acknowledgment of wrongdoing, and reconciliation through symbolic acts and spiritual appeasement." Here are several key rituals in that system:Nyono tong gweno ("stepping on the egg"):
This is the most commonly used ritual, intended for those who return home after a long period of time. This welcoming ritual is meant to cleanse a person of the ills that he or she may have contracted while traveling. This ritual is not a conflict resolution mechanism, but is "a necessary precondition before the reconciliation ceremony."
"The ceremony involves the returnee stepping on an egg (tongweno) placed on a 'slippery branch' (opobo) and a strick with a fork (layebi), traditionally used to open graineries. The egg is said to symbolize purity. 'The egg has no mouth, and cannot speak ill of other.' The egg also symbolizes that which is 'soft,' 'fragile,' suggesting a restoration of innocence. The opobo is a soapy, slippery branch, which helps to cleanse the returnee from any external influences he or she might have encountered in the 'bush' that might be calling them back. The layebi is a symbol of welcoming a person back into the home, where the family members will once again share food together."
Mato oput ("drinking the bitter root"):
This is perhaps the most widely discussed Acholi traditional justice mechanism. This ritual aims at reconciling social divisions resulting from intentional or accidental killing. Mato oput is performed between the clan of the perpetrator and the clan of the victim. "The ceremony of Mato oput comes at the end of a long process of confession, mediation and payment of compensation to reconcile two clans after a murder has occurred between them. The ceremony itself has various forms across different clans, but common characteristics include the slaughter of two sheep which are cut in half and exchanged by both clans, and the drinking of the bitter herb oput by both clans to 'wash away bitterness.'"
Moyo piny ("cleansing of an area"):
This is "a ceremony that involves the sacrifice of goats to appease ancestors and to cleanse an area of evil spirits that are believed to dwell in places where war-related massacres have occurred. For instance, moyo piny have been held at battle sites, at sites of deadly ambushes and in fields and compounds where mass murder took place."
Gomo tong ("bending the spear"):
This ritual entails "a vow between two clans or tribes engaged in violent conflict to end hostilities. It is done both with Mato oput and without, depending on the conflict. Elders from conflicting clans or tribes meet to discuss the source of conflict, develop prevention strategies and to warn the population to discontinue fighting. The mediator bends the spear to signify discussion is over. In the act of bending the spear, the spirits of both sides are evoked and promised killings would stop. If, without due cause, conflict started again, the tip of the spear would turn back against the aggressor." This is a rare ritual, and it was last performed in the 1980s.
It is estimated that over 50 "stepping on the egg" ceremonies have been organized by Ker Kware Acholi, the organization of traditional Acholi leaders, to reintegrate former LRA fighters.
Go to Security and Public Order: DDR and Psycho-social Recovery: Trauma, mental health and psycho-social well-being
Relevance and limitations of the traditional Acholi system
It is important to consider the relevance and limitations of the traditional Acholi justice system in the context of a complex and protracted war. For instance, compensation is a key part of the traditional Acholi system because it is a precondition for reconciliation. Traditionally, the clan of the offender pays compensation. It is difficult to imagine how the clans of LRA members who have killed numerous people could pay the necessary compensation. This problem also applies to ordinary people, who are poor and thus unable to muster the resources and compensation necessary for traditional justice rituals. The complex nature of the war in Northern Uganda further complicates matter as, sometimes, "it is no longer possible to determine who is responsible for individual deaths." Equally important, the ongoing conflict context is transforming how traditional rituals are performed. For example, "ceremonies are being done in groups rather than individually, and signify the return of an ex-combatant not to his or her home, but to an IDP camp." Moreover, it is unclear whether mato oput will be broadened to include crimes other than killing, such as rape, abduction, or property destruction. Lastly, it is reported that the youth are not familiar with traditional justice practices.
Another inherent limitation of traditional justice mechanisms is that they are locally-specific, designed to restore intra-group harmony, rather than inter-group relations. This is a key limitation because it fails to address violence involving individuals from different ethnic groups in northern Uganda, as each of them have its own ceremonies and rituals and do not recognize those of other groups. As Erin Baines writes: "While mato oput may be sufficient to foster inter-Acholi reconciliation, regional and national reconciliation is also paramount." Although the February 2008 agreement did specify traditional justice rituals of other northern Uganda tribes, exactly how inter-regional reconciliation will play out is an open question.
Moreover, according to Erin Baines, "mato oput between a LRA perpetrator's clan and a victim's clan has never occurred." This last piece of information demonstrates that much of the current discussion on traditional justice in northern Uganda is driven by normative considerations rather than empirical data. In other words, it is impossible to speak of the merits of traditional justice mechanisms in achieving reconciliation with actual reconciliation processes between perpetrators and victims.
Traditional justice may be particularly ill-suited to "sequencing" transitional justice mechanisms. As a recent USIP report notes, "A rule of traditional justice such as the Acholi mato oput, however, is that once the case has been addressed through the traditional process, the matter is put to rest and it is forbidden to speak of it again. This would significantly hamper any staggered approach to justice and reconciliation."
The debate over traditional justice in northern Uganda is quite polarized, and it emphasizes the well-worn dichotomy of "local restorative approaches versus international retributive approaches." But this polarization may be unnecessary given the growing recognition that complex post-war situations require complementary mechanisms of justice. The strongest argument for traditional justice is that, by combining elements of retribution and restoration, it is particularly well-suited to situations where perpetrators and victims, or "survivors" of the war, have to live together in close-knit community.
"Neither glorifying [them] as the only cure nor relegating them to the realm of the devilish is helpful to people seeking assistance in their suffering. It is only prudent to acknowledge the positive potential of traditional rituals and beliefs, not as contradictory or competing with other approaches but as complementary to them. To ignore or discard traditional ways that have been seek to work in the past makes no sense. On the other hand, they cannot provide the cure for all ills."
Link to DDR Case Study, Uganda: traditional rituals and justice mechanisms
For more information:
Documents
Afako, Barney. "Reconciliation and justice: Mato oput and the Amnesty Act," in Protracted Conflict, Elusive Peace: Initiatives to end the violence in northern Uganda (Conciliation Resources, Accord Issue 11, 2002).
Allen, Tim. "Ritual (Ab)use? Problems with Traditional Justice in Northern Uganda." In Courting Conflict? Justice, Peace and the ICC in Africa, edited by Nicholas Waddell and Phil Clark, 47-54. London: Royal African Society, March 2008.
Allen, Tim. War and Justice in Northern Uganda: An Assessment of the International Criminal Courts Assessment. London School of Economics, Development Studies Institute, Crisis States Research Centre, February 2005.
Allen, Tim. Trial Justice: the International Criminal Court and the Lord's Resistance Army. London, New York: Zed Books, 2006. See in particular Chapter 6, "Justice and Healing," 128-168.
Baines, Erin K. "The Haunting of Alice: Local Approaches to Justice and Reconciliation in Northern Uganda." International Journal of Transitional Justice 1, no. 1 (2007): 91-114.
Branch, Adam. "International Justice, Local Injustice." Dissent (Summer 2004),
Harvey, Barbara. "Breaking Eggs/Rebuilding Societies: Traditional Justice as a Tool for Transitional Justice in northern Uganda." Paper prepared for Youth Symposium on Conflict, Poverty, and International Interventions, Montreal, 21 March 2007.
Latigo, James Ojera. "Northern Uganda: tradition-based practices in the Acholi region." In Reconciliation and Traditional Justice after Violent Conflict: Learning from African Experiences, edited by Huyse, Luc, and Mark Salter (Stockholm: International Institute for Democracy and Electoral Assistance, 2008): 85-120.
Liu Institute for Global Issues. Roco Wat Acoli: Traditional Approaches to Justice and Reintegration. September 2005,
Ocen, Julius. "Can Traditional Rituals Bring Justice to the N. Uganda?" Institute for War and Peace Reporting (IWPR), July 26, 2007.
OHCHR (Office of the High Commissioner for Human Rights). Making Peace Our Own: Victims Perceptions of Accountability, Reconciliation and Transitional Justice in Northern Uganda. New York: United Nations, 2007.
Okello, Moses Chrispus. "The False Polarisation of Peace and Justice in Uganda." International Conference on Peace and Justice, 25th -27th June 2007 Nuremberg, Germany.
Pham, Phuong, et al. "Forgotten Voices: A Population-Based Survey of Attitudes About Peace and Justice in Northern Uganda." International Center for Transitional Justice/Human Rights Center University of California, Berkeley. July 2005,
Hovil, Lucy and Joanna R. Quinn. Peace First, Justice Later: Traditional Justice in Northern Uganda. Kampala, Uganda: Refugee Law Project (RLP), July 2005.
Quinn, Joanna. R. "Social Reconstruction in Uganda: The Role of Customary Mechanisms in Transitional Justice." Human Rights Review 8, no. 4 (July-September 2007): 389-407.
Websites
USIP Briefing on Uganda
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Timor-Leste: the Community-based Reconciliation Processes (CRPs) of CAVR
After the violence and destruction following the independence referendum in 1999, Timor Leste was faced with an urgent challenge: the reintegration of over 100,000 refugees (some of whom had been involved in the violence of 1999) still in West Timor in a manner that would foster social reconstruction. At the same time, there was a strong consensus in Timor Leste that the process of reintegration had to involve some form of accountability and justice.To address Timor-Leste's transitional justice challenge, UNTAET (United Nations Transitional Administration in East Timor) passed regulation 2001/10 in July 2001, establishing the Commission for Reception, Truth and Reconciliation (CAVR). CAVRs mandate included three key elements: to establish the truth regarding human rights violations during the 1974-1999 period, to conduct Community Reconciliation Procedures (CRP) for lesser politically-related crimes, and to make recommendations to the government.
Timor Lestes transitional justice experiment involved a multi-layered approach and a division of labor between the formal and traditional/local mechanisms of justice. Several reasons account for the adoption of the CRP. First, the intimate nature of the violence, "where the majority of perpetrators came from the same village as the victims," confirmed the need for grassroots reconciliation. According to Patrick Burgess, the Legal Counselor of CAVR, "the overwhelming majority of East Timorese wanted a process which included strict legal punishment for the most serious offenders but also provided a more lenient, community-based mechanism to deal with perpetrators of less-serious crimes." Second, at a practical level, the extremely low capacities of the formal justice system also meant that alternative mechanisms of accountability had to be devised. Third, "the failure of the political elite to reconcile among themselves...has led to a growing interest in grassroots reconciliation." Finally, the use of a community-level mechanism with some links to traditional practices made sense because most East Timorese had never had experienced the formal justice system.
It is in this context that the Community-Based Reconciliation Processes (CRPs) came about. CRPs could only consider "minor crimes" such as theft, minor assault, arson (other than that resulting in death or injury) and the killing of livestock or destruction of crops. Heres a brief description of a typical CRP: A refugee/perpetrator (known as a "deponent") contacts and gives a statement to the local CAVR representatives, briefly outlining the criminal acts committed. Then the CAVR National Office sends the statement to the Office of the General Prosecutor, which reviews the case to make sure that it is not a "serious crime" case and, if so, signals that the case can go through a CRP. A Community Reconciliation Process is then established in the concerned community, which includes the perpetrator, a panel of three to five local leaders, a Regional Commissioner, and members of the community, including the victims. At the hearing, statements are made by the perpetrator, victims, and panel members. Importantly, the perpetrator publicly states his crimes and asks for forgiveness. The panel then deliberates an appropriate "act of reconciliation," which could include "(a) community service, (b) reparation; (c) public apology; and/or other act of contrition." A Community Reconciliation Agreement (CRA) is then reached. At the closing of the process, traditional rituals are performed to seal the agreement and confer legitimacy upon it. Such rituals include "communal chewing of betel nut on a large mat." Importantly, the CRA is registered in a district court, which means that the deponent is bound by law to fulfill its conditions. This also means that once a deponent has done so, he or she cannot be liable to any further civil or criminal charges in regard to those specific past crimes. Moreover, failure to comply with the CRA would result in a maximum imprisonment of a year or a fine of up to US$3000, or both.
The Community Reconciliation Process has basis in Timorese customs of conflict resolution. The practice of Nahe biti literally means "stretching or laying down the mat," a metaphor for the coming together of community members to discuss and settle disputes through consensus and reconciliation. The CRPs incorporated traditional rituals and traditional leaders. As Patrick Burgess, the Legal Counselor of CAVR, noted: "When we began this program, and particularly the community reconciliation procedures, we didnt know if it would work. It had never been tried anywhere else in the world. It incorporates traditional law and traditional justice mechanisms involving the procedures where the spiritual leaders will call down the ancestors to add solemnity to the process and they will participate as well in finding a solution." According to another account, "The hearings were held in a considerable traditional environment. The biti boot [literally meaning 'large mat,' used for settling larger disputes] was unrolled, people dressed traditionally, and a ritual elder opened the meeting by addressing the forefathers." Importantly, the use of traditional rituals and the involvement of traditional leaders were meant to confer legitimacy on the CRPs. According to a UNDP report, "the incorporation of tradition and custom into the CRP is widely regarded as a both necessary and useful. The involvement of traditional leaders endorses both the process and its outcome, and without it, many are convinced the validity of the process would have been undermined."
But like most present-day "traditional" justice practices, the CRP was also a new phenomenon. Three areas of innovation are worth emphasis. The first was the deliberate inclusion of women, particularly on CRP panels. The second area of innovation was that the CRP was established by UNTAET (an international body), and its jurisdictions was clearly specified and circumscribed. Consequently, local actors were not free to consider which cases to administer through a CRP.
Perhaps the most innovative aspect was the establishment of linkages between the formal justice and the CRP: specifically, the fact that a Community Reconciliation Agreement (CRA) was recognized by and had the force of formal law. Related to this, the CRP rejected the use of amnesties as a mechanism of transitional justice. For example, deponents were informed that confessing to their crimes did not foreclose the possibility of formal prosecution if those fell under the category of "serious crimes." In this sense, CAVR differs from South Africas Truth and Reconciliation Commission, which did grant complete amnesties conditional on truth-telling. In sum, the case of CRP points to the fact that it is possible to craft innovative complementarities between formal and informal institutions of justice.
According to CAVRs final report Chega!, "1,371 perpetrators successfully completed a CRP, many more than the initial target of 1,000." It is also estimated that out of a total population of fewer than a million people, between 30,000 and 40,000 community members have attended and participated in a CRP procedure. According to a mid-term program evaluation, 90% of those interviewed said that the process had been positive and that they had been satisfied with the results. "It is generally considered by both national and international observers that the CRP programme has been a resounding success."
One interesting finding from the community reconciliation process was that "victims did not consider that the nature or degree of punishment, or 'acts of reconciliation' which the perpetrator had to carry out, was of crucial importance. Victims stated overwhelmingly that the most important determining factor in whether a perpetrator should be accepted back into the community was the strength of their public admission and apology."
Two problem areas are worth emphasis. First, CAVR completed its work, including the CRPs, in March 2004. The time-bound mandate meant that potential deponents would not have the opportunity to participate in a CRP. It is estimated that an additional 3,000 people would have participated in CRPs had CAVR's time period been extended. "Communities were disappointed that so many cases that could have been dealt with through the CRP were not heard, and were overwhelmingly in favour of extending the programme or replacing it with something similar." According to the CAVR's final report, there is a strong consensus in East Timor that a post-CAVR community reconciliation mechanism needs to be established so as to continue the work of communal reconstruction.
Another problem has to do with the failing performance of the SUSC (the Special Unit for Serious Crimes), a hybrid court (consisting of international and Timorese judges) responsible for prosecution serious crimes. This has led to an awkward and unfair situation: "The fact that many perpetrators have voluntarily participated in the painful and often humiliating experience of a CRP hearing, while those guilty of more serious crimes seem unlikely ever to be held to account, has produced a situation of unequal accountability and a perceived justice deficit. This imbalance and the institutional factors that underlie it must be addressed when considering future strategies and needs in the area of reconciliation and justice." Given this state of affairs, one report notes that "there are senior members of the rural East Timorese community who believe that local reconciliation processes remain capable of dealing with far more serious crimes as well, and that the broader process of reconciliation would have progressed far faster had local ritual and administrative leaders been free to determine which crimes should be dealt with locally, and which crimes should be deferred to the courts."
It is also important to note that, since the CRP was a voluntary process, many perpetrators refused to go through it. Though in principle this meant that they could still be charged and prosecuted through the formal justice system, the extreme weakness of the latter effectively meant that many perpetrators enjoyed de facto amnesty and impunity.
For More Information:
Documents
Babo-Soares, Dionisio. "Nahe Biti: The Philosophy and Process of Grassroots Reconciliation (and Justice) in East Timor." The Asia Pacific Journal of Anthropology 5, no. 1 (April 2004): 15-33.
Burgess, Patrick. "Justice and Reconcliation in East Timor: The Relationship between the Commission for Reception, Truth and Reconciliation and the Courts." Criminal Law Forum 15 (2004): 135-158.
Commission for Reception, Truth and Reconciliation Timor-Leste. Chega! The Report of the Commission for Reception, Truth and Reconciliation Timor-Leste: Executive Summary. Dili, Timor-Leste: 2005.
Hohe, Tanja and Rod Nixon. "Reconciling Justice: Traditional Law and State Judiciary in East Timor." Prepared for the United States Institute of Peace, January 2003.
Hohe, Tanja. "Justice without judiciary in East Timor." Conflict, Security and Development 3, no. 3 (2003): 335-357,
Mearns, David. Looking Both Ways: Models for Justice in East Timor. Australian Legal Resources International (ALRI), 2002.
Piers, Pigou. The Community Reconciliation Process of the Commission for Reception, Truth and Reconciliation. United Nations Development Programme (UNDP) Timor-Leste, April 2005.
Belo Ximenes, Fausto. The Unique Contribution of the Community-Based Reconciliation Process in East Timor. Judicial System Monitoring Programme (JSMP), May 28, 2004.
Websites
Commission for Reception, Truth and Reconciliation Timor-Leste (CAVR)
Judicial System Monitoring Programme (JSMP)
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Mozambique: traditional justice through healing
Peace and a Policy of Silence
Mozambique is unique in the universe of transitional justice experiences. The 1992 General Peace Agreement between Frelimo (Front for the Liberation of Mozambique) and Renamo (Mozambican National Resistance) put an end to a brutal fifteen-year civil war. A central element of the negotiated peace was a general/blanket amnesty, which was promulgated shortly after the signing of the peace agreement. Moreover, an official policy of "forgive and forget" was instituted, and the underlying theme of Mozambique's post-war transition was, "the less we dwell on the past, the more likely reconciliation will be." As a result, no formal mechanisms for truth-telling, accountability, or reconciliation were developed. At the same time, though, Mozambique is generally considered as a successful case of durable peacemaking."War Pollution"
Despite this official policy of reconciliation-as-silence, ordinary Mozambicans have been engaged in everyday practices and rituals of justice, healing, and reconciliation--that is, community-level peacebuilding--through the use of cultural resources. Traditional healers called curanderos or curanderas (the Portuguese word for "healer," or kimbanda in the local language) are key players in that system.In the Mozambican worldview, there is an inextricable link between the realm of the living and the realm of the spirits, and idea that powerfully shapes how people interpret war and respond to its legacies. People in Mozambique, and in much of Africa, "live in a social world that traditionally practices the belief that the death of individuals through traumatic acts, or the breaking of taboos such as the killing of human beings without metaphysical and/or social legitimization, is an offence that requires immediate redress through atonement rituals. If wrongdoing is not acknowledged, the spirit of the innocent victim will return to the realm of the living to struggle for justice."
In the Mozambican worldview, war is seen as something "abnormal" and "unacceptable" that pollutes and contaminates the community, in both metaphysical and tangible ways. According to Alcinda Honwana, "'War pollution' is believed to arise from contact with death and bloodshed. Individuals who have been exposed to war, who killed or saw people being killed, are believed to be polluted by the wrongdoing of the war and contaminated by the spirits of the dead. These persons are perceived as potential contaminators of the social body. Contamination comes from the anger of the spirits of the deal killed during the war."
"Individuals who fought in wars or lived in military camps are seen as the vehicles through which the spirits of the dead can enter and afflict entire communities. Such spirits are believed to contaminate not only the individual killer but also family relatives, neighbors, and even passerby. After the war, when soldiers and refugees return home, cleansing and purification rituals are seen as a fundamental condition for individual and collective healing and protection from pollution. They are also important means of conflict resolution, reconciliation, and social reintegration of war-affected people into society."
Reintegration of former child soldiers
In Mozambique, former child soldiers were reintegrated into their communities through purification rituals performed by mediums and traditional healers. The central purpose of these healing and purifications rituals is to "take the violence out of the person." Alcinda Honwana recounts one such cleansing ceremony for a former child soldier:"One the day of his arrival his relatives took him to the ndumba (the house of the spirits). There he was presented to the ancestral spirits of the family. The boys grandfather addressed the spirits, informing them that this grandchild had returned, and thanked them for their protection, as his grandson had returned alive. A few days later a traditional healer was invited by the family to help them perform a cleansing ritual for Samuel. The practitioner took the boy to the bush, where a small hut covered with dry grass had been built. The boy, dressed in the dirty clothes he brought from the rebel camp, entered the hut and undressed himself. Then the hut was set on fire, and an adult relative helped the boy out. The hut, the clothes, and everything else that the boy that brought from the camp had to be burnt. This symbolized the rupture with the past. A chicken was sacrificed for the spirits of the dead, and the blood was spread around the ritual place. The chicken was then cooked and offered to the spirits as a sacrificial meal. The boy had to inhale the smoke of some herbal remedies and bathe himself in water treated with medicine. In this way his body was cleansed both internally and externally. Finally, the spirit medium made some incisions in the boys body and filled them with a paste made from herbal remedies, a practice called ku thlavela. The purpose of this procedure is to give strength to the boy. During this public ritual, relatives and neighbors were present and assisted the practitioner by performing specific roles, or just by observing, singing, and clapping."
These actions demonstrate the success of strategies deeply rooted in the social and cultural context, which take into consideration the subjective and psychiatric dimensions of the reintegration process. Whereas the Reintegration Support Scheme (RSS) employed by UNDP in the context of DDR probably helped combatants become reintegrated in their communities by providing them with a steady source of spending, most observers consider the role played by traditional healers as key in some of the "success stories" registered in that country, in particular for child soldiers. At least some of them benefited from a true reintegration in their status of children, although they were generally not reintegrated in their home community.
Link to Trauma, mental health and psychosocial well-being subsection: case study on Mozambique
Healing and Protective Rituals
The Mozambican experience also demonstrates that cultural worldviews shape approaches to justice and reconciliation, particularly by challenging the purportedly universal need to verbalize one's traumatic experience in order to heal--the dictum of "healing through revealing." As Honwana writes, "These healing and protective rituals do not involve verbal exteriorization of the experience. Healing is achieved through nonverbal symbolic procedures, which are understood by those participating in them...Recounting and remembering the traumatic experience would be like opening the door for the harmful spirits to penetrate the communities. Viewed from this perspective, the well-meaning attempts of psychotherapists to help local people deal with war trauma may case more harm than help."Reconciliation
The healing rituals in the Gorongoza region (central Mozambique) aim at restorative justice (to restore individual and communal well-being), and include elements of acknowledgement, reparation, and reconciliation. Central to those healing rituals are the magamba (spirits) and gamba (spirit) healers. Magamba are the spirits of dead soldiers who return to the realm of the living to seek justice. "Magamba healers suggest that if these spirits are to be dealt with successfully the violence of the past cannot be ignored. There is a need to engage with the past, to find out what injustices were done, to acknowledge the wrongdoing and to repair the damage." The healing ritual consists of a ceremony closely supervised and mediated by the gamba healer, where the gamba spirit manifests itself and a settlement, including reparations, is achieved.But Mozambican traditional healing practices are by no means unscathed by war. As Honwana notes, "In communities where people were killed by their neighbors, where families were divided for long periods of time, where people can no longer muster the resources necessary to carry out ceremonies properly, and where the reputation of traditional leaders was compromised during the war, the effectiveness of customary remedies has come into question."
Lessons for transitional justice
Mozambique has been a relatively neglected case in the transitional justice literature. Yet the Mozambican experience offers important insights into justice in post-war societies. First, it shows the importance of distinguishing between formal, state-level mechanisms of justice and reconciliation and traditional, community-level approaches. In Mozambique, the absence of the former did not preclude the presence of the latter: "the magamba spirits broke down the walls of silence that the official authorities of the nation state, including many survivors of the war, had built in order to deny and to forget the past. The gamba spirit challenges the prevailing politics of denial and compels war survivors to deal with some of their unsettled war-related disputes."Second, traditional justice is usually biased against women. In the case of Mozambique, the practice of magamba spirits is that it excludes women in the sense that women killed during the civil war cannot return as spirits to the realm of the living to seek justice. As a result, "although magamba spirits break the silence of the past, structurally the justice they offer helps to reinforce patriarchical power in a country that is struggling for gender equality."
Third, the Mozambican case shows that, unlike the conventional compartmentalization of justice and psycho-social recovery in the West, "healing and war-related justice cannot be conceived as two separate phenomena. Traditional healing practices are holistic, and the magamba spirits embody this tradition. They are as much about healing as about restorative justice." Finally, the Mozambican experience illustrates that, while the need for some form of transitional justice may be universal, the ways in which the past is addressed and reconciliation achieved are, in important respects, shaped locally.
For more information:
Documents
Cobban, Helena. Amnesty After Atrocity: Healing Nations After Genocide and War Crimes. Boulder, CO: Paradigm, 2007.
Gibbs, Sara. "Postwar Social Reconstruction in Mozambique: Reframing Childrens Experiences of Trauma and Healing." In Rebuilding Societies After Civil War: Critical Roles for International Assistance, edited by Krisha Kumar, 227-238. Boulder and London: Lynne Rienner, 1997.
Honwana, Alcinda. "Children of War: Understanding War and War Cleansing in Mozambique and Angola." In Civilians in War, edited by Simon Chesterman, 123-142. Boulder and London: Lynne Rienner, 2001.
Honwana, Alcinda. "Sealing the past, facing the future: trauma healing in rural Mozambique." In The Mozambican Peace Process in Perspective. Conciliation Resources, Accord Series No. 3, 1998.
Igreja, Victor and Beatrice Dias-Lambranca. "Restorative justice and the role of magamba spirits in post-civil war Gorongosa, central Mozambique." In Reconciliation and Traditional Justice after Violent Conflict: Learning from African Experiences, edited by Huyse, Luc, and Mark Salter (Stockholm: International Institute for Democracy and Electoral Assistance, 2008): 61-83.
Haryy G. West. "Creative Destruction and Sorcery of Construction: Power, Hope, and Suspicion in Post-war Mozambique." Cahier dEtudes Africaines (37) 147 (1997): 657-98.
