Transitional Justice and Peacebuilding on the Ground: Victims and Ex-Combatants (Law, Conflict and International Relations) (44 page)
Authors: Unknown
Most troubling, the report does not outline the criteria it used to determine who should be prosecuted or sanctioned, which means that these recommendations come across as somewhat arbitrary. Many individuals are referred to nowhere else in the report, and as such it is difficult to ascertain what evidence exists to warrant their prosecution and censure. According to a transitional justice expert, “There is a disconnect between the due process and transparency the TRC was mandated to uphold. It is not sufficient to say, we are going to prosecute and sanction, because we are the TRC and we say so.”
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The TRC’s methodology was flawed. For example, the TRC allowed unlimited anonymous testimony, which was subsequently used to build cases against those accused—although how this was done is undocumented. Former commissioner Sheikh Kafumba Konneh argues that the report is unconstitutional, stating:
The Liberian Supreme Court holds that the language of a statute that is used to describe a crime committed must carry enough information that will give the accused the opportunity to know why he or she is being charged. The Constitution also says that the accused person must be confronted by witnesses and accusers.
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Both Konneh and fellow dissenting commissioner Pearl Brown Bull note that individuals who are named for prosecution and censure have no means to
defend themselves against the report’s claims, something that all accused should be afforded. “If we want our country to develop, to not have a repeat of past conflict, we must protect the rights of people, alleged criminals included.”
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In a recent landmark decision, the Supreme Court of Liberia ruled part of the TRC Act and the TRC final report to be “unconstitutional and unenforceable,” meaning that individuals cited for lustration cannot be prevented from holding office.
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Archie Williams, a businessman named on the list, brought the case, claiming that, although “he was never served with notification written or oral, from the TRC charging him with any crime” and no witness was ever brought forward to testify as to his alleged wrongdoings,
the TRC released its [final report] in which, amongst others, it recommended and directed that petitioner, along with certain other Liberians, be barred from holding public office for thirty years, for what the Commission termed as petitioner’s major role in the Liberian conflict.
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In its ruling, the Supreme Court said the TRC’s claim that it is mandatory for the President to implement its recommendations is unconstitutional because any such implementation by the President would be in violation of Williams’s constitutional right to due process. The Court’s decision notes that TRC’s recommendation to ban a number of people from holding public office, including President Johnson Sirleaf, without first upholding their right to due process in keeping with law, is a clear violation of the Liberian Constitution.
There is no doubt that some people on the TRC’s “most wanted” list have committed war crimes, and Liberians unquestionably want the war’s perpetrators to be held accountable for their actions. However, Liberians also want a strong legal system that holds the right people accountable for their actions.
If structures are to work, and people are to work and live together, we need accountability. Those who did wrong should be accountable for their wrongdoings, but good accountability depends on being specific. In terms of prosecution, this means that a person has to be found guilty through due process.
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At this time, it would be difficult to assure a Liberian accused of any crime, let alone gross human rights violations, that they would be afforded due process.
Despite the inroads that have been made in judicial reform, Liberia’s domestic judicial system remains severely constrained. According to Campbell-Nelson, the legal system will not have the capacity to try alleged perpetrators for at least a decade.
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Thus, even before the TRC tabled its final report, some Liberian human rights activists thought it premature to contemplate legal prosecutions.
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As part of its statement-taking, the TRC included questions on the theme of reconciliation. In ten out of Liberia’s 15 counties, the majority of those questioned wanted to “forgive and forget” and in the remaining counties almost half
shared this opinion.
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As a result, some peace activists found the rush to prosecute to be counter-intuitive:
The draft report, using these figures, noted that people wanted to move on with reconciliation. This was left out of the final report. What were the reasons for suppressing this? Even the issue of reconciliation and healing was downplayed in the final report.
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For those who believe that victims want to see justice in the form of prosecutions, recall that nearly all Liberians see themselves as victims of the war. At this time, only a small proportion of Liberians believe victims will be helped by trials and the punishment of perpetrators.
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Even the most ardent supporter of prosecutions, Jerome Verdier, publicly acknowledges that the deficiencies of Liberia’s formal legal system are so profound that the TRC’s recommendations for legal accountability cannot be pursued domestically, at least for the time being. “The judiciary in Africa is unreliable, corrupt and by no means transparent,” he said. “Because of inherent mistrust of the judicial institutions in Liberia, justice is not the first interest of victims of war and conflicts.”
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In the absence of a well-functioning Liberian legal system, Verdier is pinning his hopes on the International Criminal Court (ICC) as an “appropriate strategy for delivering justice to local populations.”
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So far, the ICC has not indicated any interest in undertaking the prosecution of alleged Liberian war criminals. In the meantime, Liberians are hoping that customary justice will give them what formal justice has not.
Customary Accountability and Conflict Resolution: The Palava Hut
Even if the legal system were fully reformed, the sheer number of people who are alleged to have committed crimes would overwhelm the criminal courts and prevent them from hearing any other cases for years to come. For this reason, I argue that many Liberians are warming to the idea of using existing customary justice mechanisms to provide resolution for “lesser” war crimes.
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Up until and throughout the war, the customary system had proved to be more durable than the formal system in providing Liberians with a forum in which to resolve their disputes. Although the social upheaval of the war has diminished the role of chiefs and elders somewhat, customary mechanisms are widely perceived as having some legitimacy.
With its focus on consensus building and reconciliation, several members of the TRC were particularly predisposed towards customary justice. “In our travels for the TRC, I became convinced that the Liberian people were ready for peace,” says former TRC commissioner Sheikh Kafumba Konneh. “In some areas, perpetrators and victims live together and eat together. In places where there has been experimentation regarding transitional justice, victims have publicly forgiven perpetrators.”
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Most Liberians residing outside of the capital had little recourse to the formal legal system and sought redress through customary dispute mechanisms, including the
Palava Hut
process and
sassywood
. The Palava Hut process (hereafter Palava Hut) is perceived as a non-punitive and reconciliatory process, while the aim of sassywood is to establish guilt and punish the wrongdoer through “trial by ordeal.” The practice involves variations of a ritual where alleged wrongdoers are exposed to extreme pain. A person’s guilt depends on their reaction; if there is little injury or if they recover well, the accused is considered innocent. Although still common in rural areas, the use of sassywood is illegal. Palava Hut is convened by the elders of a community, nearly always men who are over the age of 45. They typically settle land disputes, divorce, debt, and extramarital affairs, although occasionally they are called upon to decide on cases of theft and murder.
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There is no one way to practice Palava Hut in Liberia, although it is widely practiced by the Kwa and the Mende ethnic and linguistic groups.
Among the Kwa, the process “seeks a confession of the wrongful act, an apology for the wrong that has been done and forgiveness from the victim.”
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Often, the family of the perpetrator will initiate the process, and the family is involved throughout the process. Cleansing rituals are held, with elders offering advice and warnings to the wrongdoer. Sometimes, especially in cases of theft, the offender or his family is required to make restitution to the victim. In cases of murder, the perpetrator must make public restitution through a public apology and may be banished from the community, to give the family time to grieve for the death of their loved one.
The family is less important in the Mende practice of Palava Hut. Local chiefs and leaders lead the process, which may take place publicly in a palava hut, a round structure with a thatched roof, or privately in a sequestered area where only initiates may participate. The aim is an admission of guilt by the perpetrator, after which “restitution is required in the form of a fine.”
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In cases of violence, the wrongdoer must submit to a cleansing ceremony, which usually includes the sacrifice of an animal. In cases of murder, the process is held privately, with the elders determining whether the crime was premeditated or accidental. The cleansing process is integral, after which families of the victims and perpetrator share a meal as a means to seal reconciliation.
It is important to note that, while the customary legal system is entrenched in Liberia, and Palava Hut is common among some tribes, it is not universally used throughout Liberia. Nonetheless, the concept has gained tremendous traction among civil society groups, who propose it as a means to resolve the harm caused by the country’s civil wars, as a way either to address issues brought up by the TRC or to achieve reconciliation. One human rights activist comments:
The policy of the TRC was to make it victim-oriented. Some came with a sense of arrogance and no remorse. Others came and tried to show remorse, and while they didn’t atone for their sins, at least they spoke with their victims. My impression was Liberia had much more testimony than Sierra Leone, but there wasn’t much confrontation between victims and
perpetrators. You need some interaction between the two. When you have an opportunity to talk to that person who has done you harm, it doesn’t heal, but it sets the process to heal. When that meeting takes place, confidence and trust building can start.
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The TRC was initially seen as the forum where victims could achieve some form of reconciliation. Prior to the TRC’s hearings, between 50 and 70 percent of the population claimed to want to meet with the perpetrator who caused their suffering, but few actually had the opportunity to do so.
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Nonetheless, this suggests that there remains widespread support for reconciliation initiatives.
As a result, some see Palava Hut as an expedient and achievable form of justice, at least in the short-term. In Rev. Lartey’s pragmatic view of justice:
We have to look at the short, medium, and long term. The government can’t do it all. It is too expensive to try to undertake prosecutions right now. This doesn’t mean that the church doesn’t believe in holding people accountable, but we cannot pursue the vigilante approach … We feel that many things stand in the way of actual prosecution. This is not a process that takes one or two days. Healing and reconciliation is something that we can do right now, supported by the government, and Palava Hut.
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This view is echoed by Joe Hindovei Pemagbi:
Accountability is more than just prosecution. The downside of prosecution is that prosecution isn’t necessarily going to heal the wounds; it is not going to build relationships and cohesion in communities. It will just satisfy a certain portion of people. How do we make sure that justice trickles down?
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A number of the TRC’s recommendations make direct reference to the use of Palava Hut.
For instance, the TRC report names 36 people as perpetrators of the war but recommends them for pardon from criminal prosecution, “without prejudice to the Palava Hut process,” because they admitted to their crimes, expressed remorse, and cooperated with the TRC.
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There are also arguments for limited accountability.
Regarding perpetrator accountability, those who did wrong should be accountable for their wrongdoings. It’s easy to see the big guys, but there are others who need to be held accountable. The big guys should be held accountable for their actions because they could have done differently. Others, less high up, should also have thought of other ways out.
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Those “less high up” are mentioned later, in Appendix XII of the final report, where the TRC provides a list of 7,600 people who are recommended to submit to a “justice and accountability mechanism with traditional orientation to foster national healing and reconciliation at the community and grass roots levels creating the opportunity for dialogue and peacebuilding.”
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Palava Hut is not without its drawbacks, first of which is its lack of universality. There is no guarantee that all Liberians will endorse the process as a means for reconciliation. Even among those communities who use it, Palava Hut is not uniformly practiced, leading some to question how the process would be harmonized into a single national program.
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Additionally, it has only been used to resolve intra-community conflict, and has not been used as a forum to address violent crimes, including sexual assault. The nation may have elected the first African female president, but Liberia remains a very male-dominated society. The elders who administer the process are nearly always men, many of whom still subscribe to traditional practices in which victims of sexual assault are blamed and shunned; the Women in Peacebuilding Network (WIPNET) has advocated the establishment of female led “peace huts” that respect the spirit of Palava Hut while making it more beneficial to victims. However positive the peace huts are for women, their very existence underscores divisions in Liberian society.