Reclaiming African Traditions in Transitional Justice: With Some Reflections on Sudan

Reclaiming African Traditions in Transitional Justice: With Some Reflections on Sudan

Following the much heralded third wave of democratisation which swept across Africa in the 1990's, there was optimism that the continent was making a conscious and considerable shift towards democratic consolidation founded on the rule of law and the respect for human rights. Fast-forward almost three decades later and the major headlines across the continent portray conflict, instability and authoritarianism. April was Freedom Month in South Africa, commemorating the first democratic elections held in the country in 1994. As time goes by, much significance has been attached to these celebrations as it reflects the country's journey towards justice, equality, and dignity from a divisive apartheid-construed society. Transitional justice played a key role in this journey. Most importantly its tools could be used to address conflict, violent extremism and authoritarian rule, issues which are currently plaguing the continent.  One of such situations is the ongoing conflict in Sudan between the Sudanese Armed Forces (SAF) and the Rapid Support Forces (RSF) which degenerated in April.

There have been attempts to transition Sudan towards democracy following the military coup in 2019, which ousted President Omar Al Bashar, and ushered in a power sharing Sovereign Council. The Sovereign Council (a joint military-civilian transitional government) was headed by military generals with the initial plan of handing over to a civilian administration after 21 months. Rather, at the instituted time, the military masterminded another coup, renegaded on its commitment, and dissolved the Sovereign Council. For context, the initial Framework Agreement that set up the Sovereign Council had international support. Herein lies the issue—a bureaucratic and Westernised approach to transitional justice which came into play. The sentiments and views of the ordinary Sudanese were not central to this approach. Today the conflict has escalated, and the two military generals who previously received international support in a fool's chase of transitioning Sudan towards democratic consolidation, are now belligerents.

This presents an opportune moment, to engage with transitional justice from a broader African perspective.  We ought to seize this opportunity to promote a more inclusive and culturally sensitive approach to transitional justice, one which is peculiar and autochthonous to Africa. This is borne of the need for a model of transitional justice that does not only take into consideration, but is inherently constructed on African past and present-day realities and contextual specificities and allows for local ownership and participation, what I choose to call—'Africaness'. The Africaness model of Transitional Justice is suitable for Africa because of its emergence from African cultures and traditions. This is the approach which is needed in Sudan.

Defining Transitional Justice and the Africaness of it.

What then is transitional justice? The African Union Transitional Justice Policy (AUTJP) defines it as ''the various (formal and traditional or non-formal) policy measures and institutional mechanisms that societies, through an inclusive consultative process, adopt in order to overcome past violations, divisions and inequalities and to create conditions for both security and democratic and socio-economic transformation. In essence, this definition provides a pathway for the contemporary unstable/authoritarian African society to realise the same levels of freedom and even more than what South Africa commemorated in April.

The formal tools of transitional justice as mentioned in this definition are generic and can be applied in almost any context, having gained widespread recognition. Moreover, they were conceived following the third wave of democratisation, with the term first used in Latin America and then Eastern Europe. They include Truth Commissions, Criminal Prosecutions, Institutional Reforms and Reparations. These tools were devised based on the contexts of Latin America and Eastern Europe, and although they have been transposed to some good effect in Africa, they are lacking in Africaness as they were not construed on African realities. As such, it is not farfetched to conceive these formal tools as being limited in their ability to truly address the needs and concerns of victims and societies in Africa. Formal justice is often seen as an external imposition and can therefore be met with resistance and scepticism.  In truth, these tools do not effectively promote local ownership and participation, neither do they reflect the originalities of African societies.

By contrast, informal transitional justice tools, harnessed in a manner that draws on African cultural traditions can be more accessible, inclusive, and effective in meeting the needs of victims and communities. These tools are rooted in cultures and traditions that promote reconciliation, restoration, and communal healing, and present opportunities for the Africaness model of transitional justice to come to the fore. They can provide a sense of legitimacy and ownership to the justice process, as well as facilitate community-based solutions to addressing the abuses and trauma inflicted by past violence. For instance, the gacaca courts were established in Rwanda to address the large number of cases arising from the 1994 genocide. These were community-based courts that relied on traditional mechanisms of restorative justice, such as confession, apology, and restitution, to promote healing and reconciliation among the survivors and perpetrators of the violence. The Truth and Reconciliation Commission in South Africa integrated indigenous knowledge systems such as ubuntu and restorative justice practices into its formal justice system. While in In Sierra Leone, traditional leaders played an important part in the Truth and Reconciliation Commission process, helping to bridge the gap between formal justice processes and local communities devastated by the violence.

Conversely, there remains challenges with relying on the informal tools of transitional justice in the African continent. First, they lack a comprehensive legal framework to guide their implementation. This can create inconsistencies and confusion in application. Also, relying on traditional leaders in instituting these informal structures and processes can reinforce unequal (patriarchal) power dynamics, especially with regard to gender and other minority groups. In the same vein, they may lack the accountability and transparency of formal tools, which can lead to corruption and abuse of power. There is also the potential that these tools may be limited in their scope and ability to address complex legal and human rights issues. More so, utilising these informal processes may unintentionally retraumatise victims if they are not properly implemented or if their use is not properly explained to the affected communities.

Way forward—Africanising Transitional Justice

In light of the potential challenges to their effective implementation, the informal tools of transitional justice which draw from African cultures and traditions can sometimes be dismissed as primitive, unscientific, and illegitimate in the face of the formal justice system. It should be noted that before European contact, Africa had established kingdoms, cultures and traditions, which provided tools for addressing past conflict and political transformation, many of which are still prevalent today. Nevertheless, the challenges that come with the informal tools can be addressed to optimise their utility. Addressing these challenges is what I call—Africanising Transitional Justice.

Although the African Union definition places the formal and informal tools side by side, it is arguable whether it has helped effectively promote the informal tools of transitional justice In essence this definition does not allow the Africaness of Transitional Justice to come to the fore. While I do not propose a new definition, I suggest some modalities under which transitional justice can be redefined, to bring out the Africaness of it.

If we are to enhance local ownership and participation, and have the process reflect the peculiarities of the African context, then this new definition of transitional justice should give pride of place to the informal tools. This does not mean the disregard of the formal tools, but for their delayed introduction. That is, as soon as a State, the African Union and foreign donors decide to engage in transitional justice in African societies, they should first be informed by the cultures and traditions of the concerned community. This would in turn allow the formal processes to be informed by the same. Then we can talk of the Africaness of Transitional Justice, a model which is autochthonous to Africa. In essence, introducing the informal processes first allows for the possibility for the formal processes to be constructed on the specificities of African society.

For this model to work, there is a need to engage in extensive consultations with local communities to ensure that they are involved in the design and implementation of transitional justice mechanisms. This can help to build trust and ensure that the mechanisms are culturally appropriate and responsive to local needs. In addition, this can help ensure that formal responses and potential institutional reforms (which are all formal tools) are trauma-informed. Also, training and capacity-building for traditional leaders and community members may be provided so they meaningfully participate in transitional justice processes. Finally, the use of informal mechanisms of justice ought to be guided by human rights principles and standards, such that they do not perpetuate or reinforce discrimination or inequality.

If these are considered at the initial stages of the transitional justice process, then there is a potential to Africanise all the other subsequent processes which will be initiated. At that juncture we could boast of the Africaness model of Transitional Justice—A euphoria where we are cognisant of local ownership and participation in the transitional justice project, constructed and autochthonous to African societies.

Conclusion

Transitional justice especially in the African context is a complex and multifaceted process that requires a nuanced understanding of the diverse cultures and traditions of post-conflict societies. This piece argues for incorporating and promoting African cultural traditions in transitional justice processes, particularly in the informal aspects. It is a call for a renewed approach to resolving the Sudanese conflict through a process where there is a recognition of the past and present, of the internal actors, and the context of the Sudanese society, together with the active participation of the Sudanese people. If this were so, it would be difficult for military generals to be entrusted with the democratic transition of Sudan or any other African country.

Bobuin Jr Valery Gemandze Oben
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