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.