Religion & Transitional Justice

My institution (Santa Clara) recently hosted Paul Van Zyl, former Executive Secretary of South Africa’s Truth and Reconciliation Commission, co-founder of the International Center for Transitional Justice, and CEO of Peace Ventures, a new NGO dedicated to identifying and providing market access to responsible businesses that are both profitable and help to prevent conflict or promote peace. The theory is:

By creating jobs, facilitating interaction between groups on opposite sides of the conflict and promoting cooperation across borders, these “peace businesses” can generate profit while making a global contribution to the prevention of conflict and protection of human rights.

Paul's talk focused on religion and its role in transitional justice, particularly in efforts to promote reconciliation—a key feature of many transitional justice efforts—and even forgiveness. Drawing on the case studies of South Africa, East Timor, and Morocco, he discussed:

1. How faith influences what is desirable;
2. How faith can be manipulated to impede peace and justice; and
3. How justice efforts can influence faith and religion

The case of Morocco will be particularly interesting to our readers in that the truth commission there had to decide whether the reparations regime for the families of the disappeared would rely upon Shari'a succession rules. Under these rules, the eldest male heir of the dead or disappeared (such as a brother or male child) would receive the deceased's estate, leaving the wife with nothing. The truth commission decided to depart from these default rules and allow wives, daughters, and mothers to recover in the wake of Morocco's systemic violence. The truth commission thus created a space to consider ways to ensure more just outcomes and ended up prompting a broader and ongoing conversation within Moroccan society about potentially reforming the succession regime for all contexts.

Paul stressed that sequencing is an important component of any transitional justice agenda—what is possible or desirable in the immediate post-conflict period may evolve as a society moves farther away from the period of abuse or repression.

The webcast of Paul's fascinating talk is available here.

Go On & Read On! Albie Sachs on The Strange Alchemy of Life & Law

(Go On! is an occasional item on symposia and other events of interest)

On the occasion of his retirement from the South African Constitutional Court and the publication of his new book, The Strange Alchemy of Life & Law, Justice Albie Sachs (below left) will be making two appearances in the Bay Area as part of a United States tour:

• Monday, Feb. 8th at 5:30 - 6:30 p.m. in the Weigand Room, Arts & Sciences Building, Santa Clara University. The talk, entitled "Torture, Terrorism & The Rule of Law," is co-sponsored by the Law School's Center for Global Law & Policy.

• Wednesday, Feb. 10th at 4:00 – 5:00 p.m. in the Bechtel Center at the Freeman Spogli Institute, Encina Hall, Stanford University, 616 Serra St. The talk, entitled "Does the Law have a Sense of Humour? The Laugh It Off Case," is co-sponsored by the recently-launched Program on Human Rights and the Center for African Studies at Stanford.

In his own words, Justice Sachs has led an “over-saturated life.” A practicing lawyer at 21, Justice Sachs defended people charged under the racist statutes and repressive security laws that helped to enforce the apartheid regime. For his work, he was subject to detention, sleep deprivation, and solitary confinement in addition to suffering other restrictions on his movements by the South African security forces. He went into exile in 1966 during which time he pursued a doctorate and taught law in England and Mozambique.
While in exile, he worked closely with Oliver Tambo (below right) (prior IntLawGrrls post), the leader of the African National Congress in exile who later became the namesake of Justice Sachs’s young son. Sachs’s work involved, among other things, drafting the organization’s Code of Conduct—the only comprehensive code of its kind by an exiled and dispersed liberation movement. The Code renounced torture and terrorism as tactics in the struggle against apartheid and otherwise established the rule of law within the resistance based on the premise that to achieve justice, it was necessary to act justly. It was in Mozambique that Justice Sachs miraculously survived the assassination attempt by South African security forces that deprived him of his right arm and the sight in one eye in retaliation for his work to construct a new order in which the races could live together in dignity and equality.
Justice Sachs returned home in 1990 to help prepare the new democratic, non-racial, non-sexist Constitution of South Africa, which finally realigned law with justice in South Africa and healed Justice Sachs's divided soul as a lawyer and an outlaw. He also helped to design the extraordinary amnesty-for-truth formula that governed the truth and reconciliation process and that enabled him to eventually confront the operatives behind his attack. President Nelson Mandela appointed him to the Constitutional Court in 1994 where he presided over an unparalleled docket. In his fifteen years on the bench, his jurisprudence has been dedicated to

• dismantling the institutionalized repression of apartheid,
• effectuating the concepts of human dignity, equality, and ubuntu (a humanist and relational philosophy dedicated to reconciliation and solidarity over retribution),
• protecting both "freedom rights" and "bread rights" in equal measure, and
• encouraging tolerance in the face of the multi-dimensional diversity that is the South African reality.

Justice Sachs has just completed a new book, The Strange Alchemy of Life & Law, which I highly recommend. (His other works are available here). As the title suggests, the book is part autobiography, part a study in and of jurisprudence, and part law story. It provides a fascinating window into how one justice, on a new Court with an inspirational yet arduous mandate, approached the job of judging. It is a eulogy to the emancipatory power of the law when it is animated by human rights and human dignity. Through focused studies of several groundbreaking cases, Justice Sachs addresses the need to confront passionate life experiences with dispassionate reasoning, while at the same time ensuring that everyone impacted by the outcome—the litigants, their communities, the public—feel heard and acknowledged in the ultimate judgment so that it engaged the nation rather than divided it. He also acknowledges the need, at times, for judges to have the courage to get out ahead of the community’s understanding of the law.
An image of a blue dress graces the book’s cover. The story behind the dress is emblematic of the unquenchable quest for dignity in the face of apartheid’s brutality. The dress is the work of Judith Mason, a South African artist. Her piece, part of a triptych entitled The Man Who Sang and the Woman Who Kept Silent that hangs in the South African Constitutional Court, honors Phila Ndwandwe and Harald Sefola, who were killed by South African security forces. Sefola was electrocuted while singing Nkosi Sikelel’ iAfrika, the now official co-national anthem of South Africa. Unbeknownst to her family, Ndwandwe was a unit commander of the armed wing of the African National Congress (Umkhonto we Sizwe or “Spear of the Nation") and the mother of a little boy. Prior to being abducted from Swaziland and assassinated in 1988, Ndwandwe was kept naked for weeks in an effort to get her to inform on her comrades. According to testimony by one of the police officers connected with her death, she never talked and constructed panties out of a blue plastic bag—the type ubiquitous by the sides of roads in developing countries. She was wearing the makeshift covering when her body was disinterred in 1997 on the basis of testimony given at the Truth & Reconciliation Commission. At her public funeral, her nine-year-old son received a medal for exceptional bravery on her behalf. Her story is recounted here. Mason (right) sewed an entire dress out of such bags to signify Ndwandwe’s resistance using only

silence and a piece of rubbish.

If you are in the Bay Area, I hope to see you at one of the above events. In any case, do check out the book.

'Nuff said

(Occasional item taking context-optional note of thought-provoking quotes)

'They asked our forgiveness. Ntobeko told us that when we forgave him, he didn't care if he got amnesty because he had just been freed.'

-- Californian Linda Biehl, recalling her 1st conversation, just outside the hearing room of the South African Truth and Reconcilitation Commission, with Ntobeko Peni, a member of the mob who killed her 26-year-old daughter Amy Biehl (left), a Fulbright scholar and anti-apartheid activist caught up in racial violence in 1993, the year before the country's 1st multiracial elections. The quote appears in a Los Angeles Times article on the twists of fate by which Peni and another man who served time for the killing now work for the charitable Foundation established in Amy's memory. (photo credit)
A story worth contemplating as we mull yesterday's excellent post by IntLawGrrl Jaya Ramji-Nogales, respecting the proliferation of truth commissions on the African continent.

Let A Thousand TRCs Bloom

We blogged here about Liberia's Truth and Reconciliation Commission, unusual in that testimony will be taken from Liberian refugees here in the United States for a commission that sits in Africa. South Africa's Truth and Reconciliation Commission was an early incarnation of this transitional justice mechanism, and is often viewed as the model to emulate, though its failure to punish is not without its detractors amongst the families of victims of the apartheid regime. And Sierra Leone's Truth and Reconciliation Commission, complementary to the Special Court for Sierra Leone, has been criticized in some quarters for relying on confession and truth-telling where they're not culturally appropriate. Now, two other African countries are getting in on the action.

Last month, Kenya's parliament approved a Truth, Justice, and Reconciliation Commission to investigate human rights abuses since 1963. While the time frame appears surprisingly long, that's the point -- to investigate "unresolved historical injustices such as distribution of land and state resources, and alleged human rights violations by previous governments and political leaders" that may have been the root cause of the deadly violence resulting from December 2007's disputed elections. The TJRC is hybrid in format, with six Kenyan commissioners and three foreign commissioners drawn from the Panel of African Eminent Personalities, a group of thirteen prominent Africans who helped to negotiate the peace deal in Kenya. It will be complementary to prosecutions of perpetrators of human rights abuses during the post-election violence, either by an international tribunal to be formed in Kenya in the next two months or by the International Criminal Court. Those found guilty of genocide and other human rights violations will not be eligible for amnesty. While the impetus for this denial of amnesty is understandable, particularly in the wake of South Africa's TRC, it may be difficult to prod human rights violators to testify before Kenya's TJRC without the carrot of amnesty. Moreover, critics are already suspicious that politicians seeking to avoid punishment will find an amnesty loophole via the TJRC.

This week, opposition leader Morgan Tsvangirai echoed a call made in September by church leaders for a truth and reconciliation commission in Zimbabwe. Tsvangirai believes that a Zimbabwean TRC should examine atrocities in the country dating back to the massacres of ethnic minorities in the 1980s. Church leaders, on the other hand, said that decisions regarding the temporal scope of the TRC should be made by ordinary people, not political parties -- a good rule of thumb for all transitional justice mechanisms. The church leaders found it necessary to air the truth and implement some form of justice in order to heal the nation, and view the South African TRC as their model.
After an initial blossoming of TRCs in Latin America to address the political violence of the 1980s, it's interesting to see this transitional justice mechanism spread throughout Africa. While the South African TRC seemed generally well-tailored to that nation given its religious and legal history and composition, it's not entirely clear that this form of truth-telling will fit all cultural environments. It's surely positive to see the requests for TRCs coming from within these societies, but I query whether there's a more locally grounded moral authority that might be used to account for the violence in Kenya, Zimbabwe, and beyond.