The relevance of transitional justice tools to address colonial crimes — MIT OpenCourseWare

ANNAH MOYO: My name is Annah Yvonne Moyo. I am currently acting executive director at the Center for the Study of Violence and Reconciliation. CSVR in short based in Johannesburg, South Africa. I am a transitional justice expert and have worked extensively on the African continent on transitional justice issues from addressing colonial era legacies through transitional justice, addressing economic issues through transitional justice, but also addressing some of the current and emerging challenges and issues in practice through transitional justice. LILIANE UMUBYEYI: Thank you so much for taking the time today to discuss with us. Maybe before we start with the main topic, could you tell us what is transitional justice? I'm sure there are a lot of people who don't know what this term means. ANNAH MOYO: Transitional justice basically refers to a set of measures that include truth, reparations, justice, and accountability and guarantees of non recurrence or conflict that are aimed at addressing the consequences of conflict, consequences of authoritarian rule, and other incidents that bring about gross human rights violations and other human rights violations and crimes in a particular setting, be it a society, a nation, a country, or a region. That is the simple definition of transitional justice. On the African continent, for instance, we have expanded this definition to really also include specific tenets of transformation or transformative justice, so to speak. So we are looking at these measures, including formal and non-formal measures or mechanisms also including traditional justice mechanisms to implemented the crown together with formal justice mechanisms to address consequences of violence, consequences of some of the tendencies and incidents in Africa, including legacies of Africa's brutal past to ensure that we move away from that history of brutalization and violations to economic transformation, developmental justice, and transformative justice. LILIANE UMUBYEYI: And have you used that framework in the context of CSVR to tackle the colonial crimes or the legacies of colonialism on the continent or somewhere else in the world? ANNAH MOYO: Indeed, Liliane. We are using that framework to address a number of occurrences on the continent. If you look at a number of countries on the African continent, some of the conflicts that we are experiencing currently really stem from some of the unresolved issues of the past. The colonial era legacies issues. Of land in Africa. That has not yet been redistributed, for instance, from the colonial era honors, for instance, is one of the root causes of conflict in Africa. Issues of access to resources, access to opportunities, for instance, access, for instance, to development in Africa still very much is an unresolved issue of the past. So we are using this framework of addressing the unresolved issues of the past and the colonial era legacies through transitional justice to ensure that we deal with issues of redistributive justice through transitional justice. We deal with the issues, for instance, of addressing some of the past issues, for instance, the high levels of inequality in a number of African countries really stem from Africa's unequal past when it comes to the rights, the access, and opportunities that are available for citizens vis a vis those available. For instance, for colonial masters or colonial era owners, for instance. Those who colonized Africa in the past. So we have an Africa, where our colonial era honors, or colonial era masters live alongside the majority of Africans who are poor, who are excluded from the mainstream economic activity because of the segregation and the exclusionary laws during colonial era. So how do we address some of those issues? We really need to rethink and relook at some of the issues, for instance, the inequalities brought about by colonialism in Africa, addressing them as some of the root causes of the current conflicts that we experience in Africa. Some of the tensions we see in a number of countries, for instance, are really need us to adopt that lens of addressing some of these issues through transitional justice and addressing them from a redistributive justice lens. That is one of the elements enshrined in the African Union Transitional Justice Policy as an element or a pillar of transitional justice to address some of these issues stemming from Africa's brutal past. LILIANE UMUBYEYI: Can you give us concrete examples of how you are you are mobilizing this framework with specific countries? ANNAH MOYO: Certainly. Some countries, for instance, like Namibia are currently undertaking an audit around the land reform agenda, for instance. So we are coming in saying, there is a need to use transitional justice lens to that discussion. It cannot be simply a matter of land expropriation. It has to be an issue that is looked from a transitional justice lens, through risk redistributive justice that I spoke about. How does it look like from a transitional justice lens? How do we address this as an issue of the past? The unresolved past the colonial era legacy in Namibia, for instance. That, for instance, is causing tensions in the current governance in Namibia. So having a transitional justice lens then will ensure that we look at land ownership issues, and look at, for instance, who were the original owners of the land prior before colonial colonization and seeking then to at least redistribute land equally evenly amongst the populace of Namibia. So a transitional justice look then forces us, not only to look at it from an economic point of view or from a land ownership point of view, but to really look at who are the owners. In some instances, colonial lands belonging to ethnic groups was taken. So some of it really will require that we redistribute that land to the original owners and ensure that that ownership of the land to the original settlers is retained. But at the same time, addressing the high levels of inequality in the country through transitional justice. So with transitional justice we are looking at addressing or redressing some of the wrongs-- the colonial era wrongs-- at the same time, ensuring that we are transforming and developing the lives of Namibians currently in the current dispensation, ensuring that issues of equity equitable redistribution of resources of land and opportunities for agriculture, for economic development, and economic empowerment are distributed evenly across races, across ethnic groups, ethnicity, and across the population, the whole population, and the people of Namibia. LILIANE UMUBYEYI: Thank you very much, and I guess it's very obvious when you are on a continent. And when you can see every day like the different ways in which colonialism is still present and its legacy is still structuring the lives of the population. But what about-- do you think that we are this framework of transitional justice could be useful in tackling the legacies of colonialism in the global North, where maybe states like here and in Belgium could be inclined to say it's something which happened in the past which belongs to the past, it's not the present anymore. So first of all, do you think it's relevant, it could be useful, and how could it be done? ANNAH MOYO: Thank you, Liliane for that question. Issues of the past can never really be buried with the past, which is why, for instance, many former colonial countries will be pushing for to say it's in the past, let's let bygones be bygones. Let's move forward, but really, the past-- at least in the African continent-- continues to haunt the present and it also threatens the future, for instance, because some of those legacies continue to be to manifest themselves as root causes of current conflicts and current manifestations of tensions that lead to conflict that can easily lead to gross human rights violations. So definitely, we need to revisit the past. If you look at a country like Germany, for instance, in 2018, Germany developed a transition adjusted strategy to deal with the past, especially in the African countries that were former colonies of Germany. Again, this was an acknowledgment by Germany of the fact that we cannot really bury the past. The past is very much present. The only way we can move forward and really begin the development-- begin to give developmental aid to some of these countries is really by first and foremost addressing the past, because even though we may say we are moving forward collectively, but the very communities, the ethnic groups that were affected by genocide, gross human rights violations are slavery and many other international crimes that happened during the colonial era are very much wounded. They are still a wounded. The past is not in the past, but still very much alive. The experiences have been passed on through generations through narration oral history you name it. So communities are aware of what happened, and therefore, when nothing is being seen to be done to address or redress colonial era wrongs or legacies or crimes, then this fuels tensions amongst those communities, especially where the very same colonial era masters come in the name of providing aid, providing support and developmental and economic support to the very countries that they previously committed atrocities and wrongs to. So that is the fuels that tension, especially when now you look at other tensions, for instance, in other fault lines of ethnicity, fault lines of our political party, and association amongst others. So inasmuch as if a particular president in the global South may accept that aid, but those who are aggrieved or those who are affected, if they belong to the opposite ethnic group, for instance, this tends to fuel tensions amongst community members. And we have seen some of these tensions becoming a full blown conflict or full blown wars in some of the countries in Africa. Look at Angola, for instance. Look at countries, for instance, that are still now battling with a lot of with a lot of instability like Guinea that just had a coup recently. So these are some of the fault lines that usually when we don't address the past, then the past continues to haunt the present and it threatens the stability of the future and the sustainable peace that we try to build for future generations. So there is a need to address the past in order to secure the present and secure, again, a future that is free of violence and also that is transformational and leads to sustainable peace. So what I would say, for instance, for countries in the global North, especially European countries, Europe, for instance, developed a transitional justice policy, but what is a big gap in this policy is addressing issues of the past? So we are having a policy in the European Union that focuses on current and future conflicts without really addressing issues of the past. That, in itself, is a big gap, because we cannot dissociate the past and the current occurrences of conflict in many African countries from the colonial era. So there is a need for a holistic approach to addressing conflicts in Africa that really go back to the past. The colonial era wrongs, the colonial era legacies that has been unresolved until now. And starting from there, in order to build a culture of non-punity for those who committed those wrongs at the time, but also for future perpetrators of these crimes in the future, whether they are Africans or non Africans. And we are seeing a lot of proliferation, for instance, of guns coming from Europe, coming from the global North, for instance. So even the current conflicts, for instance, do have a starting point, they do have instigators and fuelers. So the wrong of the global North can never really be overlooked in the current conflicts. And addressing some of these really has to go back to the history, go back to the colonial era wrongs that were committed and start addressing them coming from the past, coming to the present, and then seeking also to secure and build a transformative, sustainable, peaceful future. LILIANE UMUBYEYI: Before-- thank you very much. It's fascinating. Before we start this recording, we were talking about the technical nightmares or technical nightmare that we face when we bring those crimes, the colonial crimes into courts. So what are the constraints of using the transitional justice framework, because as you or you have said with many advantages related to the fact that we can tackle the roots of conflicts. So I think in terms of proscription, we have more advantages. Maybe you can develop on that point, but what are the constraints? To what extent is it really the way through which people have to frame or to shape their struggles? ANNAH MOYO: Thank you, Liliane, for that question. Indeed, I have alluded to some of the advantages and some of the opportunities for transitional justice to address this. One of the biggest opportunities I think just before I go into the constraints. One of the opportunities of transitional justice is that there is a recognition. For instance, when we are dealing with these issues through transitional justice that we are dealing with an abnormal situation, that therefore calls for some form of flexibility in terms of really looking at the narrower and very restrictive international law and international human rights tenets that seek to identify a perpetrator, seek to identify a victim, and therefore, the perpetrator must be brought to book and the victim must be redressed, but there must be reparation. But within a transitional justice, the higher number of trade-offs built within the system, for instance, yes, perpetrators have to be identified. And there has to be acknowledgment of having committed some wrongs. But at the same time, the kind of justice that we are talking about is not perfect justice, it is justice that comes with a number of trade-offs, where, for instance, sometimes an apology can be taken is what is needed to redress, for instance, or to satisfy those who are victims reparations, not in the true sense of the full measure of what the victim suffered, but as a token or as a symbol of acknowledgment. So symbolic reparations are some of the trade-offs, for instance. So it's not your perfect justice, but it's justice that comes with trade-offs, but that also acknowledges the experiences of those who suffered and also the perpetration of those who may have perpetrated the atrocities and those coming together coexisting towards moving forward, being transformed, transforming perpetrators, and victims into active citizens who can live alongside each other. Who can partner together in order to build a sustainable, peaceful future. So some of the constraints of transitional justice, once again, is the fact that there may not be political will, in most instances, from those who are seen to be perpetrators, especially for colonial era wrongs. The states who may have perpetrated those atrocities may not be willing to reopen the chapter to look at what happened, begin a process of truth seeking, then identification of perpetrators, acknowledging that indeed wrongs were committed and seeking to forge a path together with victims towards addressing some of these atrocities and together achieving, or rather building towards achieving sustainable peace in the long term. So there might not be any political will whatsoever. And transitional justice really relies on the political will and willingness of those who perpetrated those atrocities and the victim, or rather the countries to whom these wrongs were committed against. So that is the starting point. If this is not there, then any transitional justice talks will definitely fail, because both parties need to come to the table, need to initiate that conversation, and map out a transitional justice strategy on how this will be addressed. So that is number one constraint, and this is where, in most countries, even countries just where without in the global South, where there global North perpetrator, this is how many transitional justice processes fail because of that lack of political will. Another constraint that I can bring with transitional justice once again is just the issue around records. Because now, we are talking about what happened in the past. Colonial era in many African countries means more than 50 years of these atrocities having been committed. Some are committed in the 1900s. We are in 2021, so the direct victims have passed away. So there was no record keeping at the time. So issues of record keeping to really determine who was a victim, how they suffered and all of those things. So archives are not available in many countries. So really it's a word of mouth or experiences of victims passed on orally by word of mouth through generations. So the first-hand narrative of what happened may not exist. Some countries have really done well in terms of archiving what happened or keeping a national collective of what happened in the past, but in many instances for transitional justice, especially when we are looking at reparations, a direct or rather individual reparations, this may not be enough, for instance, to secure individual reparations for direct victims. It may not be enough for instance to secure a prosecution for those who may have committed those atrocities. But of course, other international law principles may kick in that will really help transitional justice processes. For instance, the International law principle in international human rights that even in instances where those who committed atrocities may not be in government at the time but the most current governments would belong to that specific state inherit the crimes committed by the previous government so they can still be held accountable. They can still be taken to court. They can still be called to answer or respond to some of the questions that may come up around transitional justice reparations and so forth and they can make an apology. They can pay reparations to victims. They can make symbolic reparations. They can come to the party in terms of acknowledging and admitting the wrongs that were committed in the past. LILIANE UMUBYEYI: Thank you very much. It's very clear. You mentioned at some point that were building a transitional justice strategy with the African Union. So do you think it's more-- I mean on the issues of colonial crimes more relevant from the perspective of African countries to work at the regional level rather than at the national level? Yeah, and how this strategic, AU strategy, African Union, is going to be deployed, implement, and implemented? ANNAH MOYO: Thank you for that question. So the African Union developed the policy. It was adopted in 2019, and one of the issues that really it focuses on is addressing the colonial era legacies in Africa. And of course, the policy is continental, but it's still applying at a national level, for instance, for those countries that are affected. So the policy really is a guideline for member states undertaking transitional justice processes. So it provides a menu of transitional justice options that a country that is undertaking a TJ process can choose from in order to address the consequences of past violations, past and present violations. So the application is still very much at a national level, although the strategy really is applicable and exist at the continental level. So really, it's still very much obliged at continental level. But there are definitely alternatives of applying it regionally, especially where some of conflicts take a regional turn or take a regional manifestation, for instance. So those opportunities exist, and in addressing some of the regional concerns or regional manifestations of conflict are some of the regional economic communities are also now engaging taking that continental transitional justice policy and developing their own regional region-specific transitional justice policies or strategies to address some of the regional contextual realities. So it can apply regionally. It can also apply nationally, but we are seeing a trend now, where there is a regional strategy that really seeks to address some of the regional realities and experiences of conflict. As we see with some of these issues like violent extremism, there is the regional connotation to them. So a regional approach is much more preferred than a national approach that may not really address or redress the issues that affect a specific region or a number of countries within a region. LILIANE UMUBYEYI: Thank you very much, and I'm looking forward to having a discussion with you and the students and activists, because I think you are you bring a number of very important elements that we have to consider when we address or think about the possibility of pursuing justice for colonial crimes in the context of Belgium.