Illustration: John Holmes for Human Rights Watch report on Jail Ogaden
Solomon A Dersso, PhD,
Addis Abeba, December 14/2018 – Addressing the topic of transitional justice and reconciliation in today’s Ethiopia is perhaps one of, if not, the most difficult one. Transitions, which are characterized by political and institutional fluidity and societal polarization, by their very nature, are complicated and challenging. They as such make justice and reconciliation unavoidably problematic. That is why the theme is a very delicate subject that should be handled with a great deal of principled care, wisdom and sense of responsibility.
As a point of departure and to enable us all have a common framework or vocabulary, it is important that to start off by clarifying the concept of transitional justice.
As aptly put in the AU Transitional Justice Policy, transitional justice refers to the various (state centric and community based) policy measures and institutional mechanisms that societies coming out of violent conflict or repression or patterns of systematically unjust power relationships adopt, through an inclusive consultative process, in order to overcome past violations, divisions and inequalities and to create conditions for both security and democratic and socio-economic transformation.
Justice defined in a context of transition thus goes far beyond judicial forms of accountability and covers wide range of political, institutional and socio-economic measures required for a transition destined to establish solid foundations for just and inclusive political and socio-economic order.
Before delving further into the core of the theme, it is important to make an observation on the nature of Ethiopia’s unfolding transition.
The current transition is not a negotiated transition like the transition in South Africa in the early 1990s. It is not either a transition that resulted from the overthrow of the old regime like the transitions this country witnessed in 1974 and in 1991. It is rather a hybrid transition.
It is a transition that resulted from the ad hoc alliance of members of society who mobilized in public protest against the prevailing regime of the ruling EPRDF and a portion of the membership of the EPRDF. It is a transition that brought to the position of leadership, and is being led by, the major reformist members of the EPRDF coalition to a position of leadership. It is a hybrid transition, which relies on the old EPRDF based regime while trying to fundamentally reform it. The feature of the transition is not without its major ramifications for the trajectory of the transition and the pursuit of transitional justice and reconciliation in Ethiopia.
It is important to note that for a society in transition seeking to pursue transitional justice, it is imperative that it develops, as part of the transitional process, a well-thought out approach for planning, designing and implementing transitional justice and reconciliation. Experience from successful transitions in Africa and the world over shows that, the elaboration of such approach needs to be informed by key considerations for designing legitimate and rule-based effective transitional justice and reconciliation process.
The first of these considerations or questions is our definition of the injustice to which transitional justice and reconciliation is to be applied as a response. One form of injustice is that which results from the non-recognition of certain ethno-cultural groups or of the equal worth of such groups and the oppression accompanying it. Charles Taylor’s famous work of ‘The politics of recognition’ is worth mentioning here for a great philosophical exploration of this theme. Another form of injustice is that which result from gender oppression. Another form of injustice involves the socio-economic marginalization and deprivation.
The injustice that often dominates the discourse on transitional justice results from the arbitrary use of state violence by state agents against human rights activists, political opposition actors, journalists and dissidents.
The second consideration relates to the question of the injustice/s of which period. This is a question about the temporal scope of transitional justice and reconciliation.
The next question is what approach of transitional justice and reconciliation to be used. In an opinion piece that he wrote on Al Jazeera using the on-going criminal investigation relating to grand corruption involving embezzlement of public funds and perpetration of human rights violations as a backdrop, Awol Allo argued that the path to reconciliation and justice should combine both criminal accountability and a peace and reconciliation process that allows for a comprehensive official investigation and a public acknowledgement of the abuses and harms done.
The issue that arises here is how a transitional society determines the balance and which factors matter for putting more or less emphasis on one aspect of the transitional justice approach (let’s say criminal prosecution) than on another (truth and reconciliation or institutional reform). The African Union Transitional Justice Policy, adopted in October this year, states that ‘emphasis on one element of transitional justice should be equitable and hence not result in either impunity (by failing to ensure accountability) or full-throated revenge of victor’s justice.’
In a line that eloquently captures the weight of the dilemmas involved, the late Chief Justice of South Africa, Justice Mohamed, writing for the South African Constitutional Court in AZAPO v. the President of the Republic of South Africa, put it thus, transitional justice involves a ‘difficult, sensitive, perhaps even agonizing, balancing act between the need for justice to victims and the need for reconciliation and rapid transition to a new future’. The key for success is the approach that the society adopts for addressing this dilemma that often arises during transitions. This relates to the next question or consideration.
The other question that needs to be addressed in our consideration of transitional justice in Ethiopia is how to organize and administer the chosen approach of transitional justice. Experience from across the continent and other parts of the world shows that for a transitional justice approach to be not only successful for delivering its objectives but also legitimate, the process of its design and implementation has to be transparent, independent and compliant with the minimum requirements of due process.
Past experience is another consideration. As we all know transitional justice is not completely new to Ethiopia. An exercise at transitional justice has been undertaken following the fall of the Derg regime. That exercise in transitional justice focused on the wrongs that happened during the Red Terror – the transitional justice mechanisms chosen involved principally criminal trials, although it also combined the use of lustration, some form of restorative justice involving the reinstating of possessions taken away unjustly and memorialization by erecting the Red Terror Museum at the heart of Addis Abeba.
The limitations from the transitional justice approach of the Red Terror including the lack of even-handedness of the process and the lessons from this experience should thus inform the design and implementation of any transitional justice and reconciliation process we may pursue in the context of the current transition.
The other question is the process that should be followed in initiating, designing and implementing transitional justice and reconciliation. When the transition is a result of negotiation, the parameters for pursuing transitional justice are set as part of the peace settlement. In Ethiopia’s hybrid transition, there is no agreed upon framework on how to formulate and implement transitional justice. Questions abound as to whether relevant stakeholders such as victim groups, civil society organizations and the legal community will be afforded the opportunity and platform to take part in the planning and formulation of the transitional justice process and in its monitoring.
Indeed, as experiences show and appropriately underscored in the AU Transitional Justice Policy, such effective participation of the public is one of the most important success factors of transitional justice.
It has been hinted earlier and has by now become clear that the nature of the transition is the other consideration that informs the choice of the form that transitional justice takes. The current transition did not lead to major bloodshed in the country. It may not be completely off mark if one describes the current transition as a bloodless revolution as opposed to the enormous blood letting that the two previous revolutions involved. Yet, it is also a transition that combines both hope and uncertainty and change and continuity.
These features of the transition are not without consequences for the choice of the mechanism or the combination of mechanisms to be used for pursuing transitional justice and importantly how such mechanism or mechanisms are designed and pursued. As Awol rightly pointed out, ‘pursuing prosecutorial justice while at the same time promoting reconciliation of a highly divided society, particularly in a highly fragile (context) …requires a strategic and holistic integration of the process, as well as careful planning’.
The other consideration is the objective/s or purpose for which the transitional justice and reconciliation process is to be applied. Among others, this depends on whether the focus is primarily on how to deal with the past or how to achieve rule-based democratic transformation that secures the interest of all sectors of society. This question also depends on the consideration of whether the focus of transitional justice is on perpetrators of violations, and hence punishment or on victims and hence recognition of the injustice they suffered and healing, or the political system and hence on building a system of governance based on constitutionalism, rule of law and respect of the rights of all.
The final consideration is the care that should be taken to avoid the perils that come with transitions, such as emergence of new grievances and deepening of polarization. During transitions, the politics, the economy and the social structure of the state tend to be in flux. Despite the demand of transitional justice for a rule-based approach, much of the changes may involve ad hoc measures, popular but extralegal or extra-constitutional actions and purges lacking due process of the law. This is particularly the case where transitions unfold without a common framework or negotiated roadmap. Another peril that comes with transitions is the susceptibility of transitional societies to external influence in their choice of the form of transitional justice and reconciliation approaches.
By way of conclusion
From the foregoing exposition it is clear that transitional justice and reconciliation is not an easy endeavor.
This is not totally surprising.
For some of us it could be a topic, which provokes our memories of suffering, our experience of being violated and undeservedly subjected to physical and psychological violence.
It could also be a topic that summons our sense of vengeance, our innate disposition of taking the law into our own hands, our retributive desire of meting out on our tormentors and their real or perceived associates the pain and suffering we endured.
It is also a subject, which is not always amenable for an easy and neat identification of responsibility. After all, the failures that resulted in the wrongs of the past are not simply products of individual culpability. Rather, they are in the main outcomes of societal and institutional pathologies, including a tradition of intolerance to and violent repression of dissent and political opposition, patterns of authoritarianism and patriarchal chauvinism, among others.
It is also a subject that necessitates all at once the act of cursing and exorcising the wrongs of the past, acknowledging the suffering that those wronged endured, while allowing room for showing magnanimity to those willing to own up their responsibility and culpability.
If pursued within legitimately established and internationally accepted parameters, transitional justice and reconciliation is also a subject that affords those who were wronged (victims, or to use a more empowering language, survivors) the platform and opportunity to tell their stories in public, to have their suffering get public acknowledgement and thereby enabling society to establish a record of the wrongs of the past through the voice of survivors and to learn lessons for avoiding the conditions that make the perpetration of such wrongs possible.
It is also a subject that offers society as a whole the occasion to see itself on the mirror, examine its various flaws, scars and violent divisions and apply the necessary corrective measures for removing the flaws, fully healing the scars and wounds and for mending the divisions among the members of society that the wrongs of the past sowed and nurtured.
As various sections of the public reflect on how to deal with the wrongs of the past and create the conditions for a better future that forestalls the recurrence of such wrongs, it is imperative that the foregoing considerations inform these reflections and the choices or decisions being made (or yet to be made) on the scope, form and implementation of transitional justice in Ethiopia. This is possibly a major issue that stands to shape the success of the current transition in charting a political and socio-economic order that is more enduring, stable and just than the previous transitions the country has experienced. AS
Editor’s Note: Dr Solomon A. Dersso is Commissioner the African Commission on Human & Peoples’ Rights, Adjunct Prof, AAU, and Founder of Amani Africa. The views in the article are not attributable to any of the institutions to which the author is associated.