rtu bill (fiji) compared to satrc (south africa)

8/14/2019 RTU Bill (Fiji) compared to SATRC (South Africa)

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Centre for Development Studies, School of the Environment & SocietyUNIVERSITY OF WALES SWANSEA

ParticipationParticipationParticipationParticipation in the Design of Truthin the Design of Truthin the Design of Truthin the Design of Truth

CCCCommissions: Realities and Possibilities.ommissions: Realities and Possibilities.ommissions: Realities and Possibilities.ommissions: Realities and Possibilities.

A Comparative Study ofA Comparative Study ofA Comparative Study ofA Comparative Study of

South Africa and FijiSouth Africa and FijiSouth Africa and FijiSouth Africa and Fiji

NATASHA KHAN

Submitted in partial fulfilment for the degree of MSc Social Policy andManagement of the University of Wales

September 2007


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DECLARATION

This work has not previously been accepted in substance for any degree and is not beingconcurrently submitted in candidature for any degree.

Signed ...................................................................... (candidate)

Date ........................................................................

STATEMENT 1This work is the result of my own investigations, except where otherwise stated.Other sources are acknowledged by footnotes giving explicit references. A bibliographyis appended.

Signed ..................................................................... (candidate)

Date ........................................................................

STATEMENT 2I hereby give consent for my work, if accepted, to be available for photocopying and for

inter-library loan, and for the title and summary to be made available to outsideorganisations.

Signed ..................................................................... (candidate)

Date ........................................................................


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ACKNOWLEDGEMENTS

I am grateful to the British Council for giving me this opportunity to undertake a Mastersat the Swansea University in my area of interest.

I am grateful to all the staff and students of CDS 2006-2007, particularly my supervisor

Dr. Gerard Clark who inspired me with his lectures and discussions and committed

guidance during the dissertation writing process. His emphasis on the importance of

politics in development has changed my negative perception of politics.

I am also very grateful to Dr. Graham Hassell of the University of the South Pacific for

linking me up with his many networks in Fiji Islands and abroad on this issue.

Additionally, I am thankful to Mrs. Ana Vesikula of the disbanded Reconciliation Unit in

Fiji, for her advice. I am also grateful to Linda Mitchell for her insightful comments.

I am thankful to my many friends for their support and understanding. Among others

Yun Chang and Michael Beckoe of Swansea, Josephine Prasad of Auckland, and

Leighanne Buliruarua, Shamim M. Bano, Rynal Singh and Kalesi Cava of Fiji. Friends

from Fiji were particularly helpful in forwarding relevant contacts, information and

documents to me, without which writing this dissertation would have been difficult.

Finally I would like to thank my daughter Sumaiya Malik, for her understanding,

patience and maturity. I dedicate this dissertation to you and hope your generation

would be able to acquire the elusive peace in Fiji Islands for all ethnic groups.


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ABSTRACT

Post-conflict countries are increasingly recognising the importance of truth

commissions to address past atrocities as they provide an environment for promoting

justice and accountability while maintaining political stability. They also have the

potential to be catalysts for societal reconciliation. However, most truth commissions

are designed with little to no consultation with the stakeholders. This dissertation

explores the possibilities and realties for participation of different actors at various

stages of the design of truth commission and examines the role of leaders in the

promotion of societal reconciliation.

Literature on truth commissions demonstrate that comprehensive engagementwith all stakeholders right from the beginning, when the idea for a truth commission is

mooted would result in wider public support and acceptance of its outcomes. Victims,

perpetrators and other stakeholders should be given opportunities to identify the social

space and strategies for the integration of truth, justice, forgiveness and reconciliation

most relevant to their situation. Participation could be enhanced by engagement with

different actors at various stages of peace building. For societal reconciliation, the need

for unifying and impartial leaders cannot be underestimated.

The findings of the case studies of the South African Truth and Reconciliation

Commission and the Fiji Islands Reconciliation, Tolerance and Unity Bill suggest that

truth commissions should be designed in genuine engagement with all stakeholders

over considerable period of time, should never be created in haste, should demonstrate

impartiality in sponsorship and should have strong elements of truth telling.

Additionally, in multi-ethnic societies the diversity of cultural, religious and traditional

factors should be integrated in any strategies designed. Most significantly, leaders

promoting societal reconciliation should demonstrate conciliatory attitudes in both

personal and professional demeanour. Truth commissions if designed appropriately

have huge possibilities of bringing together divided communities for sustained peace in

the future.


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TABLE OF CONTENTS

DECLARATION............................................................................................................ ii

ACKNOWLEDGEMENTS............................................................................................iii

ABSTRACT................................................................................................................. iv

TABLE OF CONTENTS ...............................................................................................v

ACROYMNS...............................................................................................................vii

CHAPTER 1 INTRODUCTION ..................................................................................1

1.1 Background of the Study ...............................................................................1

1.2 Research Questions and Objectives..............................................................11.3 Significance of the Study ...............................................................................21.4 Methodology..................................................................................................31.5 Limitations of the Study .................................................................................31.6 Overview of Chapters.................................................................................... 4

CHAPTER 2 - TRANSITIONAL JUSTICE.................................................................... 5

2.1 Proliferation in use of Transitional Justice Mechanisms................................. 52.2 Transitional Justice Approaches.................................................................... 7

a. The Maximalists Perspective in Transitional Justice.......................................... 8b. The Minimalists Perspective in Transitional Justice......................................... 11

c.

The Moderates Perspective in Transitional Justice.......................................... 13

2.3 Conclusion ..................................................................................................14

CHAPTER 3 TRUTH COMMISSIONS..................................................................... 16

3.1 Definition of Truth Commissions.................................................................. 163.2 International Guidelines for Creating Truth Commissions............................ 183.3 Who sets up Truth Commissions? ...............................................................183.4 Midway Response to Top Down or Bottom Up Reconciliation .................. 203.5 Actors and Levels of Peace Building ...........................................................223.6 The Public Policy Process ...........................................................................233.7 Participation in Designing Truth Commissions............................................. 24

3.8 Role of Civil Society Organizations.............................................................. 273.9 Conclusion ..................................................................................................28

CHAPTER 4 CASE STUDIES .................................................................................30

4.1 Introduction .................................................................................................30

South African Truth and Reconciliation Commission............................................ 30

4.2 Historical Background of Apartheid in South Africa...................................... 304.3 The Transition from Apartheid to Freedom and Democracy for all ............... 324.4 The Design Process of the South African Truth Commission....................... 34

a. Participation at Top Leadership Level............................................................... 35b. Participation at Mid-Range Leadership ............................................................. 374.5 Conclusions.................................................................................................39


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Fiji Islands Reconciliation, Tolerance and Unity Bill .............................................. 41

4.6 Historical Background of Fiji Islands............................................................414.7 Coup dtats of Fiji.......................................................................................424.8 Policy Process of the Reconciliation, Tolerance and Unity (RTU) Bill .......... 454.9 The Anomalies of the RTU Bill.....................................................................484.10 Reconciliation without Truth- a Mockery of Truth Commission................... 494.11 Conclusions.................................................................................................50

CHAPTER 5 - Conclusions....................................................................................... 52

WORD COUNT...........................................................................................................55

APPENDICES ............................................................................................................56

BIBLIOGRAPHY ........................................................................................................ 62

LIST OF FIGURESFigure 1: Trends in Transitional Justice Mechanisms....................................................6Figure 2: Transitional Justice Approaches and Related Perspectives ........................... 8Figure 3: Legislation/Authority which Created Truth Commissions (1974-2005).......... 19Figure 4: Types of Actors and Approaches to Peace Building..................................... 23Figure 5: Stages and Methods in Public Policy Process.............................................. 24

LIST OF APPENDICESAppendix 1: Post-Conflict Countries by the Use of Trials and Truth Commissions ...... 56Appendix 2: List of Truth Commissions (1974 - 2005)................................................. 57

Appendix 3: Legislations to Enforce Apartheid in South Africa.................................... 58

Appendix 4: South Africa's National Peace Accord Structures .................................... 60Appendix 5: Selected Socio-Economic and Demographic Indicators .......................... 61


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ACROYMNS

ANC African National Congress

CCF Citizens Constitutional Forum

CSO Civil Society Organization

ECREA Ecumenical Centre for Research, Education and Advocacy

FLP Fiji Labour Party

ICTJ International Center for Transitional Justice

IFP Inkatha Freedom Party

NAPF National Alliance Party in Fiji

NFP National Federation Party (Fiji)

NGO Non Governmental Organization

NP The National Party (South Africa)

PAC Pan African Congress

RFMF Republic of the Fiji Military Forces

RTU Reconciliation, Tolerance and Unity Bill (Fiji)

SATRC South African Truth and Reconciliation Commission

SDL Soqosoqo Duavata ni Lewenivanua (Fiji)

UN United Nations

Source for Cartoon on Front Page:http://truth.wwl.wits.ac.za/thumbs.php?did=1071, accessed 30 June 2007.Showing Dullah Omar approaching a haunted house that represents South Africa'spast, dated 23 May 1995. Copyright permission granted.


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CHAPTER 1 INTRODUCTION

1.1 Background of the Study

Increasingly post-conflict countries are recognising that past atrocities need tobe addressed to acquire sustainable peace in the future. Experiences from other

countries indicate that ignoring latent tensions can be detrimental. Countries transiting

from authoritarian to democratic rule need to weigh their options and choices before

identifying the transitional justice method to implement. Increasingly, truth commissions

have become a priority as they provide an environment for promoting justice and

accountability while maintaining political stability and they also have the potential to be

catalysts for societal reconciliation. But for truth commissions to be successful and be

catalysts for reconciliation all stakeholders need to be consulted right from the designprocess or before; to allow them to devise strategies most appropriate to their context.

Past commissions have demonstrated that if public support is widespread, the work of

the commission is more comprehensive and outcomes are more widely accepted

(Hayner, 2002; Kritz, 2004; Lederach, 2006).

Truth commission are commonly viewed as a top down approach as most are

legislated by presidential or similar decrees, however, even within these scenarios

there are possibilities of participation. For a truth commission to be catalyst for

reconciliation both top-down and bottom-up reconciliation efforts should be integrated

by involving different actors at different stages of peace building process so that

strategies designed are sustainable and acceptable to majority in the community. While

local grassroots level participation is important, the participation of leaders from all

sides of past conflict, during and after a transition in post-conflict countries has wider

impact and possibilities of societal reconciliation. This dissertation explores the

possibilities and realties for participation of different actors at various stages in the

design of truth commissions. Additionally, it examines the linkage between promotion

of societal reconciliation and need for leaders to demonstrate high calibre of

conciliatory attitudes in their personal and professional demeanour.

1.2 Research Questions and Objectives

Truth commission is commonly implemented after a country has transited from

authoritarian rule to adopt democratic principles, which allows citizens the power to

participate in the decision making processes. But in contrast to the democratic

principles of participation many of the earlier truth commissions were not designed in


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consideration of peoples concerns. Although fear of political instability and need to

pacify conflicting groups are understood, it does not divest states from their obligations

to the wider population, particularly the victims of past violations.

To understand the process and procedures of truth commissions with regard to

participation and its importance, this dissertation will focus on the following questions.

1. What is the decision making process in identifying the truth commission as the core

form of transitional justice to be pursued?

2. What are the processes and procedures of designing a truth commission?

3. What is the significance of different forms and levels of participation in the design of

a truth commission?

First the dissertation explores the factors a transiting country takes into account

to propose a truth commission as the main form of transitional justice to be

implemented. Secondly, it seeks to enquire how a truth commission is designed itself

and links with the first question to understand the potential of the participation of people

from all levels within the community in the design process. Thirdly, on the strengths

and weakness of case studies of the South African Truth and Reconciliation

Commission and the Reconciliation, Tolerance and Unity (RTU) Bill of Fiji Islands, this

dissertation analyzes the significance of the different forms and levels of participation in

the design of truth commissions. By exploring these questions this dissertation hopes

to demonstrate the importance of integrating the concerns of all the stakeholders from

the very beginning of a truth commission.

1.3 Significance of the Study

This dissertation topic is of particular importance to me as an Indo-Fijian

interested in possibilities of sustained peace established in Fiji Islands. For mostpeople Fiji is considered as a tropical paradise for holidays, however latent tensions

along ethnic lines have disillusioned the Indo-Fijian population leading many to migrate

overseas but are still nostalgic for Fiji. While ethnicity continues to be politicized, I

believe there is a scope and need for societal reconciliation. A truth commission could

be catalysts for societal reconciliation if it is designed and implemented well. While the

RTU Bill has been shelved for now, academics and civil society organizations have

kept the debate alive with continued discussions. Additionally, in recent months the

Interim government in power is promoting A Peoples Charter for Change & Progress

with the aim to rebuild Fiji into a non-racial, culturally vibrant and united, well governed,


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truly democratic nation that seeks progress and prosperity through merit based equality

of opportunity and peace (Fiji Government Online1). While it aims to create a

harmonious society, it does not attempt to address the root causes of conflicts in Fiji

and I strongly believe it would not succeed or lead to sustainable peace. Like the RTU

Bill it has been created in haste and has all the elements of a top-down approach with

little genuine attempts of engaging with people from all levels in the community. I

believe that in a number of years when democracy is re-established in Fiji and the

country is more politically and socially stable, the demand for a truth commission will

gain momentum. I hope this dissertation could be utilized to identify the weaknesses of

the RTU Bill process so that such attempts in future will give more precedence to the

voices of people, consider the victims concerns, be impartial and the reason to create

a truth commission is for betterment of the country.

1.4 Methodology

This dissertation had mainly utilized publications and a few credible websites

and newspapers to draw documented factual and debated information on the subject

under discussion. While extensive literature on truth commissions already exists,

finding information which focused on participatory related approaches in this arena was

a little difficult, particularly as the Swansea University library had very few publications

on truth commissions and transitional justice. However, internet searches were very

useful as a pointer for numerous universities and organizations which have vast portals

on truth commissions. The study adopts an analytical approach to explain the

significance of participation of different actors at various levels in the design process of

the truth commissions. It takes the deductive research stance to understand the

international debates and theories in regards to participation and truth commissions

and applies it to the cases of South Africa and Fiji Islands to analyze its relevance and

significance. In consideration of time limitations and access to South Africa and Fiji

Islands the library research was utilized rather than a primary research which mighthave provided more in-depth understanding of this issue.

1.5 Limitations of the Study

In an attempt to write on truth commissions one is confronted with the

challenges on how to delimit it to a particular issue as all issues are related and

interconnected. But focus was required to provide some in-depth on the participatory

1http://www.fiji.gov.fj/publish/page_9845.shtml


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aspect of truth commissions. In an attempt to limit the focus, two case studies were

selected to anchor the analysis but these are not representative of the many different

approaches in designing truth commissions. Nevertheless, these case studies are

useful as they indicate the two divergent approaches utilized in designing truth

commissions and their consequences.

1.6 Overview of Chapters

Chapter 2 of this dissertation introduces three major perspectives in transitional

justice, the maximalists, the minimalists and the moderates. It outlines the strengths

and weaknesses of each perspective and highlights some common concerns to be

considered in the decision making process. It also demonstrates that the use of any

transitional method in a post-conflict country usually occurs after much deliberation and

consideration of many and at times conflicting factors. Having established that truth

commissions are usually the best transitional justice option for post-conflict countries,

Chapter 3 discusses key concepts and guidelines in designing a truth commission. It

establishes the importance of participation of different actors and civil society

organizations (CSOs) during this process, among other key elements of participation.

In light of this, Chapter 4 provides the practical application of international guidelines,

particularly the participatory approach in the case of the South African Truth and

Reconciliation Commission (SATRC) and its significance. It goes further to compare

the case of South Africas Truth and Reconciliation Commission with Fijis promotion of

the Reconciliation, Tolerance and Unity Bill. Additionally, it reviews the approach taken

by Fiji in consideration of international benchmarks on participation during the design

process of the truth commission. Finally Chapter 5 draws conclusions in light of the

research questions identified above and the preceding chapters.


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CHAPTER 2 - TRANSITIONAL JUSTICE

This chapter sets out a conceptual framework for the assessment of transitional

justice mechanisms in post-conflict situations. It identifies the different types of

transitional justice mechanisms and reasons for their proliferation in recent history. The

International Center for Transitional Justice (ICTJ) defines transitional justice as a

range of judicial and non-judicial victim-oriented approaches which societies undertake

to address past human rights abuse after transiting from violent conflict or authoritarian

regime towards democracy (ICTJ, 2005: 1). Transitional justice encompasses diverse

but interlinked variety of approaches therefore the typologies of maximalists,

minimalists and moderates are utilized to demonstrate the international debate among

the scholars and practitioners. Broadly speaking, maximalists are advocates of trials,

minimalists support general amnesties, while the moderates integrate the concernsand needs of previous groups and generally promote truth commissions.

Understanding the stance of each group allows the identification of their strengths and

weaknesses and demonstrates why truth commissions are becoming an attractive

alternative, particularly in their capability to establish a common truth and act as

catalysts for reconciliation.

2.1 Proliferation in use of Transitional Justice Mechanisms

Recent history has seen an increased recognition of the use of some form oftransitional justice to address past human rights abuses in societies coming out of

authoritarian rule. Bhargava (2000:54) succinctly summarizes the momentum behind

this proliferation:

Without a proper engagement with the past and the institutionalization ofremembrance, societies are condemned to repeat, re-enact, and relivethe horror. Forgetting is not a good strategy for societies transiting to aminimally decent condition(Bhargava, 2000: 54).

Societies coming out of conflict have learnt that not dealing with the past has potential

for further tensions in future (Kritz, 2002: 21). For instance, under Titos regime in

Former Yugoslavia, brotherhood was encouraged and any discussion of the atrocities

committed against each other by Serbs, Croats and Bosnians during World War II was

suppressed, but this eventually led to ethnic cleansing (ibid). Recognizing past

atrocities and establishing a common truth could avoid the premises of negative2

peace which could turn into intractable conflict in future.

2Lederach (2006) takes the ideas of Galtung to define negative peace as the absence of direct

violence but emphasizes that latent conflict could still be present.


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Historically, perpetuators of gross human rights violations in intra-state conflict

were usually exempt from punishment. But since the 1980s, the use of transitional

justice mechanisms has become increasingly common in dealing with past human

rights violations (Sikkink & Walling, 2007: 1). The lack of any form of justice in earlier

periods is attributed to few human rights movements, lack of commitment to

democracy, little influence from international community and weak local civil society

organizations (CSOs) among other factors.

Figure 1: Trends in Transitional Justice Mechanisms

Source: Sikkink. Kathryn & Carrie B. Walling (2007:7)

The proliferation of transitional justice mechanisms is substantiated by recent

empirical researches. Sikkink & Walling (2007: 9) surveyed 192 transitional countries

between the periods of 1979 2004 and found that 50 countries used trials while 34

utilized truth commissions. Figure 1 illustrates the sharp increase in the use of

transitional justice mechanisms since 1987. Sikkink & Walling (2007:43) claim this

increase to address past violations is to act as a deterrent for future leaders while Kritz(2002: 21-26) identifies the following key factors:


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the increased downfall of authoritarian regimes and adoption of democracy;

growth of human rights movements;

provisions of some form of transitional justice in peace accords3;

influence and support of foreign donors in terms of financial, human and other

resources to encourage the accountability process;

more and strengthened CSOs;

proliferation of academic and media interest in this issue4;

impact of lessons learnt from other countries in designing country-specific

transitional justice mechanisms5.

Countries planning for transitional justice are influenced by a collection of these factors

rather than any one single feature. While International Military Tribunal and subsequent

Nuremberg trials after World War II are considered as the beginnings of transitional justice, in recent years it has diversified and differs remarkably from the earlier trials

due to their adoption of international and national human rights standards.

2.2 Transitional Justice Approaches

Prosecutions, truth-seeking, promoting reconciliation, reparations, institutional

reforms, vetting (lustrations6), memorials and recognising gendered patterns of abuse

are widely used transitional justice approaches (ICTJ, 2005: 17). These approaches do

not work in isolation from each other, but support and strengthen each other as andwhen it becomes appropriate to use any particular approach. This overlap and

integration of various approaches could be aligned with three groups: the maximalists,

minimalists and the moderates7 as seen in Figure 2. While the moderates are

proponents of truth commissions, recent commissions such as the SATRC indicate that

many elements identified in the middle section of Figure 2 are being utilized in

3As reflected in the peace accords such as in El Salvador, Guatemala, Bosnia and Sierra

Leone.

4From 1970 to 1989 only 150 articles focused on transitional justice but by 1990s there were

more than 1,000 publications, transitional justice was part of almost all disciplines of study, withwebsites and conferences organized specifically on this theme (Kritz, 2002).

5Chile was influenced by Argentine, El Salvadors had some impact on Guatemala, South

Africa studied a number of countries before designing its truth commission and has impactedmany countries since.

6Lustration is a transitional justice mechanism under which perpetuators and collaborators of

gross human rights violations are barred from employment and holding positions of publicinfluence.

7

I have been influenced by the works of Hugh Miall, Ramsbottom, Oliver, Woodhouse, Tom &Miall, Hugh (2005) and Kritz, Neil, 2002 in identifying the typology of minimalists, maximalistsand moderates.


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conjunction with prosecutions and amnesties. As the focus of this dissertation is truth

commissions, I will examine the moderates perspective has been influenced by the

maximalists and minimalists groups.

Figure 2: Transitional Justice Approaches and Related Perspectives

a. The Maximalists Perspective in Transitional Justice

The maximalists proponents emphasize punitive justice as the main form oftransitional justice on the basis that trials uphold the rule of law, act as deterrence for

future leaders and promote accountability and citizens rights. The post World War II

Nuremberg trials for the prosecution of Nazi war criminals and their collaborators is an

example of the use of trials. Orentlicher (1991: 2540) argues that countries are morally,

legally and politically required to prosecute in consideration of victims and survivors of

human rights violations. Bassiouni (2002) and Roht-Arriaza (1995) emphasize that the

legal obligation is embedded in international treaties such as Convention against

Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment8

whichstresses punishment for torture, while Schey et al. (1997: 333-334) highlight the

incompatibility of amnesty with such international conventions. Kaye (1997) and

Akhavan (1996: 510) argue while prosecution could threaten peace and stability, the

benefits outweigh the short term threats. Human Rights Watch (2005: 15) adds that the

indictments of Charles Taylor of Sierra Leone and Radovan Karadzic and Ratko Mladic

of former Yugoslavia have actually undermined their political influence and thereby

8

Treaty adopted by the UN General Assembly on 10/12/74 and was designed to prevent andpunishtorture when committed with the involvement of public officials..., accessed 20/06/07.(http://history.enotes.com/genocide-encyclopedia/convention-against-torture-other-cruel-inhuman),

TheMinimalist:

Amnesty &Immunity

TheMaximalist:

Trials &Prosecutions

The Moderates:

Institutional Reform,Selective Amnesty,Provide support for

Prosecutions,Truth seeking,

Reconciliation,Reparations,Memorials,

Vetting,Etc.


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contributed to peace and stability. While prosecutions are well justified, countries in

transition may not have the resources or the political strength to prosecute.

Transiting countries need to consider many factors when selecting any

transitional justice mechanism to implement. Mndez (1997: 273) emphasizes

prosecution but acknowledges the need to consider the influence of old regimes versus

the strength of local peoples demands for justice. Empirical evidence from 30 Latin

American and African countries indicates that countries opt for trials by assessing the

strength of public demand for justice versus the strength of the outgoing regimes

demands for amnesty and impunity (Skaar, 1999: 1109). Skaar argues that

consolidating the interests of various parties is a daunting task as during the

negotiation stage, members of the outgoing regimes will prioritize impunity, while the

victims would demand justice. At the same time, the current governments priority

would be to maintain political stability, strengthen democracy and rule of law (ibid:

1111). Zalaquett (1992: 1428) argues that justice should be pursued but with caution

and in consideration of all people. Malamud-Goti (1990), Neier (1990) and Nino (1996)

all support the morality of prosecutions but emphasize the importance of avoiding

reprisals by former regime members. CSOs play a vital role in mobilizing the public to

demand accountability and justice (ICTJ, 2004: 9). The balancing act between all these

various demands is an overwhelming task for any new democracy.

Additionally, the outgoing regime may be stronger while the local CSOs are

likely to be relatively new and weak at this stage and the country may not have the

judicial resources for prosecution. There is growing recognition that traditional judicial

systems such as gacaca9 could be useful to process minor crimes and relieve the

national legal system, but it needs to be utilized with caution as it could be dominated

by warlords or vigilante groups. It may rely on ingrained community hierarchies that are

discriminatory in their treatment of some social groups. The resulting rulings could beincompatible with international human rights standards and may undermine the formal

judicial system as due process may not be followed. This indicates tensions between

the local concerns and capacities and international standards.

Although trials are strongly advocated by human rights movements, most

transiting countries are unlikely to utilize trials exclusively. Hayner (2002: 10-14) lists

the following reasons for not using trials exclusively:

9Gacacais the term denoted to the Rwandan community justice system inspired by tradition.


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b. The Minimalists Perspective in Transitional Justice

The minimalists proponents advocate political stability as their utmost concern.

In Spain, after the death of General Francisco Franco in 1975, a blanket amnesty was

eventually granted to the previous regime members in March 1977 in order to maintain

national unity (Rigby, 2001). Similarly, General Sitiveni Rabuka and other corroborators

of the 1987 coup in Fiji were granted a blanket amnesty. Snyder and Vinjamuri

(2003/04: 39-40) argue that former regime members could re-emerge and threaten the

progress to democracy if provoked too soon by the threat of trials. Randelzhofer &

Tomuschat, (1999) advocate amnesties as a means of maintaining political stability

when the outgoing regime still has considerable influence to destabilize the democratic.

Archbishop Desmond Tutu (1999: 25) concisely describes the situation in South Africa:

the security forces of the apartheid regime would not have supportedthe negotiated settlement had they known that at the end ofnegotiations they would face the full wrath of the law as allegedperpetrators. They still controlled the guns and had the capacity tosabotage the whole process.

The latent threat of further conflict by previous warring parties and the demands for

justice by victims both need to be gauged accurately as overlooking or misjudging

either of these concerns could be detrimental. While much emphasis is placed on the

influence of previous warring parties, the public may demonstrate their dissatisfaction

by voting out decision makers if their demand for justice is overridden without goodjustification.

In some conflicts, atrocities have been perpetuated by all the warring sides

which pose dilemma within amnesty proponents. In the context of South Africa,

Mphahlele (2003: 9) states amnesty must primarily be understood and evaluated on

the issue of whether a person was fighting for, or against apartheid. The only moral

basis for amnesty is evidence that a person fought against an unjust system. This

implies that amnesties should be granted to liberation movement activists even if they

carried out major atrocities. However, Human Rights Watch (2005: 13) argues that

amnesties should be rejected for gross human rights violation, regardless of their

affiliations to liberation movements or authoritarian regimes. Atrocities perpetuated by

liberators such as genocide, murder, torture, etc. should not be justifiable on any

grounds. Granting amnesty to liberators would indicate to others that committing

atrocities is justifiable for some reason and could be interpreted by the common

citizens that the powerful and the perpetuators of atrocities are exempt from any form

of punishment. Additionally, if the liberators were pardoned but members of former


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authoritarian regime were punished for similar political crimes, it creates space for

resentment among the perpetrators.

In recent years, general amnesty provision has provoked strong debates. Tutu

(1999: 30-32) states that in post intra-state conflicts, victims and perpetrators continue

to live together and blanket amnesties are distasteful as it shows little compassion for

victims. Kritz (2002: 33) argues that blanket amnesties could portray culture of

impunity. Article IX of the 1999 Lome Peace Agreement15 granted Corporal Foday

Sankoh of Sierra Leone and his combatants absolute pardon and allowed them to be

part of the new political system (USIP website16). In the short term atrocities declined

significantly, but four months later previous patterns of violations re-emerged and

escalated (Human Rights Watch website17). Blanket amnesty and impunity in this case

seems to have emboldened the perpetuators to commit further atrocities.

Human rights movements nationally and internationally have also created

pressure on post-authoritarian countries to hold the perpetuators accountable rather

than opting for blanket amnesties. Cook (1997) emphasizes that new democracy would

need to demonstrate that it respects the national and international human rights

standards while reflecting the will of its people. Many organizations and literature

indicate opposition to granting amnesties for gross violations18. Although amnesty may

be desirable when faced with political instability, it would not necessarily lead to lasting

peace but may embolden perpetuators while relegating victims needs and concerns.

Like the trials, amnesty provision could not be implemented in isolation from other

transitional justice mechanisms as doing so shows preference of perpetrators concerns

over the victims.

15

UN was a guarantor to this agreement but it clarified that amnesty was not applicable tointernational crime (Conciliation Resources website).

16http://www.usip.org/library/pa/sl/sierra_leone_07071999.html#9, accessed 21/06/07

17http://www.hrw.org/campaigns/sierra/mem0100.htm on 22/06/07

18 The Vienna Declaration and Programme of Actionreads, States should abrogatelegislation leading to impunity for those responsible for grave violations of human rights such astorture. Accessed 23/06/07, http://www.unhchr.ch/html/menu5/wchr.htm

UN highlights amnesty cannot be granted in respect of international crimes, Accessed23/06/07, www.hri.ca/fortherecord2003/vol1/impunitychr.htm

The Provocations of Amnesty, Memory, Justice and Impunity edited by Villa-Vicencio &Doxtader. E, highlights the current debate on amnesty.


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c. The Moderates Perspective in Transitional Justice

The moderates are the midway response between the maximalists and the

minimalists in their proposal of truth commissions to conduct accountability without

jeopardizing political stability. Hayner (2002) argues the strength of truth commission

lays in avoidance of political instability while exposing past atrocities; establishing

accountability and official condemnation of past violations. The proliferation of truth

commissions in recent history due to limited reach of the courts [and] recognition

that even successful prosecutions do not resolve the conflict (ibid: 14). In recognition

of the weakness of utilizing trials or amnesty exclusively, moderates advocate truth

commissions which allow integration of many transitional justice mechanisms as

identified in Figure 2. Truth commissions, if designed appropriately incorporate the

concerns of past perpetrators and victims and attempt to establish a common truth and

be catalysts for sustainable reconciliation in the community.

Empirical evidence demonstrates the acceptance of truth commission alongside

trials. Appendix 1 shows that of the 33 countries that established truth commissions,

64% also utilized trials. Hayner (2002: 96-98) stresses that trials and truth commissions

strengthen and complement each other. In South Africa, as in other countries,

information collected during truth commission was forwarded to the judiciary for

prosecutions and people on trials opted to provide evidence to Amnesty Commissionsfor possible amnesty. From the victims perspective, truth commissions are laudable as

they may not have funds and evidence to prove perpetrators guilt through prosecution.

While a truth commission can have significant positive impact, it can only do so

if it is appropriately designed, resourced, supported and established. Hayner (2002),

Kritz (1995, 2002), Minow (1998a) and Teitel (2000) reject a blueprint approach in

setting up truth commissions and recommend that transiting countries consider their

unique conditions. According to Hayner (2002) and Gutmann & Thompson (2000: 33-

38) the most effective truth commissions involve people at different levels of design

and establishment. Lederach (2006: 26-29) argues that if the truth commissions

mandate involves reconciliation then people should be involved in the decision making

process to allow them to design the social space which allows the integration of truth,

justice and forgiveness and that reconciliation cannot be a top down approach. Van der

Merwe (2001) emphasizes that in promoting reconciliation in a top-down approach

such as national truth commissions, the realities at the community level should be

considered, otherwise it would represent a rhetoric of reconciliation if it does not


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create conditions and incentives for local reconciliation processes. While extensive

debate on components of truth commissions such as amnesty, truth telling,

reparations, victims rights, reconciliation and peace have been contemplated, there is

little discussion on design and the role of participation of people from different levels in

its setup. Commonly, truth commissions are deemed as top-down19 approaches as

the majority are created through presidential mandates20. While truth commissions

have many advantages by integrating various transitional justice approaches and thus

minimizing their weakness, without the participation of people from all levels in the

community in the design process, they may not be effective or accepted by the

community.

2.3 Conclusion

Since the 1980s, the use of transitional justice mechanisms has proliferated in

recognition that past violations need to be addressed for sustainable peace in future.

The increased use of various transitional justice mechanisms have been attributed to

the demise of many authoritarian regimes, adoption of democratic principles, growth of

human rights movements, peace accord provisions, foreign influence, CSOs

strengthening and acknowledgment of its effectiveness in other countries. In identifying

which approach of transitional justice to implement in a post-conflict situation, the

perspectives of minimalists, maximalists and moderates need to be considered.

Maximalists are advocates of trials; minimalists are proponents of amnesty while the

moderates incorporate the use of both trials and amnesty with other transitional justice

concepts to propose truth commissions. In this age of adherence to human rights

standards, the exclusive use of trials is impractical as it would be considered victors

justice21. Additionally, trials can not be pursued on its own dueto negotiated amnesty

in the peace process, limited credible criminal evidence for credible prosecution, under

resourced and possibly compromised judiciary, inability to prosecute large populations

and reluctance to prosecute as atrocities was carried out by all warring sides. Similarly,blanket amnesty could embolden perpetuators, would indicate to future leaders that

atrocities are acceptable and relegate victims needs and concerns. In light of these

19In this context top-down approach means where policy decisions are made at governmental

level with little or no consultation with the wider community .

20Figure 3 illustrates 81% of the truth commissions were created by Presidential decree or

similar means. This will be discussed in more detailed in the next chapter.

21For instance, the Great Purge in post-war France included summary executions, torture and

humiliation of alleged collaborators (Kritz, 2002: 24). These earlier trials were termed victorsjustice as perpetrators were prosecuted with little right to defend themselves. At times thesewere viewed as legalized revenge by the new authorities.


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weaknesses, truth commissions are proposed as the most viable option for sustainable

peace, particularly as they integrate many transitional justice components. Truth

commissions strengths lay in avoidance of political instability while exposing past

atrocities and establishing accountability and official condemnation of past violations.

But for truth commissions to be effective, they need to have the mandate and

consensus of the people. Truth commissions should be created only with the

participation of all stakeholders in the design and establishment process. Victims,

perpetrators and other stakeholders need to identify the social space most relevant to

their situation to allow the integration of truth, justice and forgiveness and for

reconciliation to take place.


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CHAPTER 3 TRUTH COMMISSIONS

From 1974 to 2004, 32 truth commissions were established, of these 11 have been

created since the new millennium, demonstrating increased use in recent years

(Appendix 2). Truth commissions have huge potential to contribute to the peace

building process by establishing a common truth, accountability and reconciliation

among other benefits. But for truth commissions to be effective they need to allow

greater participation of all stakeholders in all stages. The design and establishment

process of a truth commission has been one of the most neglected areas in terms of

participation. This chapter provides a conceptual framework for the process and

procedures and the significance of participation in designing and establishing a truth

commission. It defines what a truth commission comprises of, discusses the

international standards and analyzes the mandate by which it is commonly

implemented. It will underline the importance of the societal approach to reconciliation,

identify the various actors in the levels of peace building, outline the public policy

process, discuss the relevance of participation in designing truth commissions and

highlight the role of CSOs.

3.1 Definition of Truth Commissions

In the past 40 years there has been an unprecedented number of intra-state

conflicts for various reasons. Collier et al (2003: 53) state the main causes of these

conflicts are failure of economic development, while the those on the political right

suggest these are due to long-standing ethnic and religious hatred and lack of

democracy and those on the political left identify economic inequalities and a legacy of

colonialism as the main reasons. Whatever the causes, these conflicts shatter social,

cultural, political and economic structures of their communities, with some countries

eventually transiting from authoritarian to democratic rule.

Transiting countries realize the importance of addressing past atrocities if new

cycles of conflict are to be avoided. Theissen (2004: 2) argues that past injustices

that are never addressed can easily become a source of renewed violent conflict. Often

victims can only make peace with their perpetrators if their suffering is officially

acknowledged. Truth commissions, if designed appropriately provide social space for

official acknowledgement of past atrocities, victims to be heard and covert crimes and

perpetrators to be identified. They may also arrive at some form of justice which is

acceptable to all stakeholders. This acknowledgement is supported by empiricalevidence. Since 1973, more than 32 truth commissions have been established across


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African, Asian, European, Latin American and Pacific regions. Appendix 2 illustrates

that only one truth commission was created in 1970s, 6 in 1980s, 14 in 1990s and 11

just within five years of the new millennium.

With this proliferation has come better understanding of truth commissions and

the realms of their jurisdiction. As they gain prominence, some common features are

defined. Hayner (2002: 14) distinguishes four main features of truth commissions:

1. Focus on past.

2. Time and issue specific to investigate some pattern of abuse within a

defined time boundary.

3. Provisional body which disbands after report submission.

4. Officially sanctioned by state or in agreement with the state.

These features provide an important benchmark as it highlights that commissions

established by non-governmental organizations (NGOs) (except for those established

by UN) are not recognized as official commissions. In this study we will focus on official

truth commissions only.

While each truth commission is different as it is context specific, varies in

structure, mandate, size, operational style and outcomes due to the individual countrys

political, social and economic situation, there are some common underlying goals and

characteristics, which highlight the purpose of establishing such a commission. Popkin

& Roht-Arriaza (1995: 93-113) identify four common goals of truth commissions.

1. Establishing a common and unbiased record of the disputed event to

eliminate different and conflicting versions of the same event.

2. Providing a platform for victims to convey their accounts of the event and

obtain some form of redress. Victims would not be believed in trials unless

they provide evidence, but truth commission allows them space to be heard

and believed.

3. Recommending institutional and other reforms to address the root causes of

conflict and eliminate the possibility of future conflicts.

4. Establishing accountability of the perpetrators.

All these goals have come under scrutiny from both the proponents and opponents of

truth commissions which demonstrate scope for improvement. However, truth

commissions have been found to be more effective than the exclusive use of either

trials or amnesty as they forge strong links with notions of reconciliation. Truthcommissions have the potential to be catalysts for reconciliation on the assumption


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that a verified and agreed account of the past will lead to a more stable common future,

allow victims social space to air grievances and encourage them to move on, and

provide accountability and reformed institutions.

3.2 International Guidelines for Creating Truth Commissions

Much literature focuses on the strengths and weaknesses of truth commissions

but few writers discuss minimum standards in establishing commissions as most are

usually created under national mandate. However, international guidelines are valuable

as they create a benchmark for minimum standards to allow comparability between

countries, to encourage best practice, to evaluate human rights standards and to

promote both national and international credibility. Working towards internationally

recognized benchmarks would also encourage truth commissions to be more impartial.

The UN initiated this concept in 1994 with a chapter on Commissions of

Inquiry22, which was revised in 2004. Hayner (1997: 187-180) added more features to

the UN concepts to include minimum standards of public participation, time and

resources, flexible mandate, political support, operational independence,

recommendations and role of international community in establishing a truth

commission. Amnesty International (2007: 22) integrated reconciliation within the

earlier concepts and emphasized that although reconciliation is valued it should not be

imposed. The ICTJ and other similar organizations have also published documents on

this theme. While acknowledging the disparity among truth commissions, adhering to

minimum international standards will strengthen the process and give it greater

credibility. Of particular importance to this dissertation is the scope and significance of

different types and levels participation in the design and establishment of truth

commissions.

3.3 Who sets up Truth Commissions?

Until recently victims had little input in the design of truth commissions as they

are often created by presidential decree, with little or no public or parliamentary debate

on the issue. Figure 3 show that 81% of the 32 truth commissions since 1974 have

been created by presidential or similar decrees with little or no public participation.

Hayner (1997, 2000, and 2002) reasons that a newly democratic country establishes

truth commissions with a sense of urgency to adhere to the peace accord agreements

and demonstrate good governance and accountability. In such circumstances public

participation is relegated as a non-priority. She argues that if truth commissions are to22

http://www.derechos.org/nizkor/impu/principles.html on 2/08/07


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be more acceptable and credible to victims, all efforts should be made to engage the

community and if possible, this should be established through parliamentary law.

However, Hayner neglected to acknowledge that post-conflict societies have limited

financial resources and often fractured social networks to undertake wider

consultations. Also people may not be organized to demand or accept such

consultations. Additionally, even if CSOs are involved in the consultation process, they

may not have consensus amongst themselves as they represent diverse views.

Equally, they might court controversy if they represent the views of the victims.

Figure 3: Legislation/Authority which Created Truth Commissions (1974-2005)

Source: Data from Appendix 2 was utilized for this figure.

Truth commissions established by UN agencies are also considered as an

exogenous top-down approach due to lack of consultation with the victims. Truth

commissions would have little credibility within the local community if the victims are

not consulted, even if they are sponsored by international agencies and experts. The

Institute for War & Peace Reporting (2006) claims there was confusion and resistance

among the locals in Bosnia regarding the initiative to form a truth commission. Although

experts such as Gordon Bacon and Neil Kritz and the UN backed Dayton Project were

involved in the process, locals were angered at the approach.


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"This is not a local initiative; it was pushed by internationalorganisations Nobody knows whose initiative it is. It seems like asemi-secret operation. The whole approach is a catastrophe, the way inwhich the discussions have been held." (Institute for War & PeaceReporting, 2006)

Individual experts and international community widely write on the rhetoric of

democratic standards of participation but the practical reality may be quite different. Not

engaging with the public or their representatives during the formation process could

also lead to new tensions and possible conflicts as occurred in Fiji, which will be

discussed later. Another area of debate is the promotion of reconciliation through truth

commissions.

3.4 Midway Response to Top Down or Bottom Up Reconciliation

The term Truth and Reconciliation was initiated by the Chilean National

Commission on Truth and Reconciliation, later it acquired prominence with the SATRC.

The concept of reconciliation becomes problematic when truth commissions are

established by presidential or other decrees and without public participation. Brounus

(2003: 21) defines reconciliation as a societal process which incorporates

acknowledging, remembering and transferring destructive attitudes into constructive

relationships to allow for peaceful relations in future. Lederach (2006) emphasizes that

local voices should be given priority for any attempts in reconciliation. Hamber and Van

der Merwe (1998) argue that reconciliation would be an empty rhetoric if promoted from

the top with little acceptance among the people. Van der Merwe (2001: 85-90) further

distinguishes between top-down and bottom-up reconciliation. The bottom-up

approach views reconciliation arising out of interactive interpersonal relations within the

community while the top-down reconciliation is promoted through national agenda

such as truth commissions. In Mozambique, perpetrators were accepted

unconditionally back into the community after a rehumanizing ceremony conducted by

curandeiros (traditional healers) (Hayner, 2002: 192). Such a process might provedifficult to implement in multi-cultural communities. In such situations, truth

commissions have a strong potential to forge peace in post-conflict situations but

problems arise if people feel pressurized to forgive (Tiemessen, 2004: 64). While

individual reconciliations occur within their own settings, truth commission could trigger

societal reconciliation if people perceive politicians, elites and former warring parties

reconciling and if perpetuators acknowledge their roles in the atrocities.

Individual reconciliation is important as they are more profound and sustained.However, in post-conflict situations there should be some nudge factor that could


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propel the communities towards widespread interpersonal reconciliations. A crucial

factor is the show of solidarity and reconciliation among the political parties, military

elites or other past warring factions. Harris & Reilly (1998: 184) argue that societal

reconciliation can be achieved if promoted by a unifying person who is considered

impartial. Official apologies and recognition of past wrongdoing indicate commitment to

reconciliation and if promoted by high calibre leader such as Nelson Mandela, there is

potential for widespread acceptance.

While societal reconciliation has benefits, the opinion of individuals should also

be considered. Theissen (2004: 13) emphasizes that reconciliation should be pursued

as a long term vision and should not be imposed if widespread injustices are still

prevalent. He argues that the concept of reconciliation should not be introduced too

soon after an end of conflict as people would need time to adjust. Also local CSOs

should be strengthened and given space to facilitate meetings between the former

warring parties. Van der Merwe (1999a) stresses that local stakeholders should be

involved in the design process of the truth commissions to allow specific local concerns

to be addressed. He argues that mere rhetoric of local participation is not enough.

Additionally, involving people would lead to transparency and less potential for

tensions. For instance, the RTU Bill in Fiji was promoted without much consultation and

outraged victims on the issue of forgiveness. Such fears could have been curtailed

through participation and awareness and by prioritizing victims concerns and

integration of justice elements.

People in most developing countries are devout in their religious beliefs and

reconciliation offers potential benefits if promoted through these channels as long as all

religious aspects are considered. Lederach (2006: 20-30) argues that participatory

reconciliation involves building relationships through engagement of conflicting parties

to allow the merger of truth, mercy and justice for peace which has strong religiouselements. Although reconciliation is usually promoted through the Christian23

perspective, there are commonalities among Christianity, Islam, Hinduism, and other

religions which need to be incorporated for wider acceptance in multi-cultural

communities. People with their diverse views need to be involved in defining what

reconciliation means to them and how it might be achieved. The midway response in

reconciliation integrates elements of top-down or bottom-up approaches. This allows

for societal reconciliation but with peoples contribution on what should be done and

23For instance, the symbolism of appointing Archbishop Desmond Tutu for the SATRC

Chairperson.


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Figure 4: Types of Actors and Approaches to Peace Building

Source: Lederach, Paul (2006: 39)

3.6 The Public Policy Process

The establishment of a truth commission could have a direct impact on its

people, particularly the victims and perpetrators therefore, legislation to establish it

should be prepared after much public consultation and feedback. Collins (2005)

highlights environmental scanning to gauge the right opportunity to introduce such

policies; advocacy to disseminate information to people from all strata in the

community; consultations; engagement; research; refinement; and feedback as key

components of participation which should be utilized effectively in the policy formulation

process (see Figure 5). While these components are important, I believe in many

instances that the design of a truth commission is defined prior to identifying the

stakeholders, and such rigid staging may not be relevant in all circumstances.

However, it is notable from Figure 5 that any such legislation should be designed only

after much consultation and feedback.


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Figure 5: Stages and Methods in Public Policy Process

Source: Collins, Craig (2005)

3.7 Participation in Designing Truth Commissions

Participatory approaches can be understood to empower people in a less

advantaged position to take control of their lives; giving them opportunities to make

decisions about activities and issues that relate to their lives; engaging with the

community to understand their reality; acknowledging that local knowledge is as validand important as experts knowledge; enabling people to realise their rights to

participate; providing the means for people to access information for decision making;

and encouraging people to examine their situation in the context of the internal and

external forces that shape their values and beliefs and what is required to combat the

oppressive forces (Chambers,1995, 2005; Holland & Blackburn, 1998; World Bank

1994; DFID, 2000). Including people in the decision making process acknowledges

their ability to identify problems, reveal social and cultural knowledge and set priorities

(Shepherd, 1998: 180). The ultimate result of participation is to empower people, to


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allow them space to decide which strategies are best for any envisaged plans which

affects their lives.

While extensive literature exists on participation during the proceedings of a

truth commission, as it provides a forum for any victim, perpetrator or bystander to

come forward and tell their story, the dilemma is the lack of participation in the

establishment process of the commission. Who decides that a truth commission should

be created? Why should it be created? These are just some questions that people,

particularly the victims have started to voice in recent years. International conventions

are also reinforcing the importance of participation in establishing truth commissions.

The UN Commission of Human Rights (Resolution 2005/81, paragraphs 16, 21 and 22)

reaffirms and urges countries establishing truth commissions to fully involve victims

groups and national and international CSOs in the selection and appointment of

commissioners. The Commission also calls for a balance of all voices in society, a

sentiment echoed by Amnesty International (2007: 13). ICTJ (2004: iii) states that all

stakeholders should be engaged to debate and decide on the need to create a truth

commission in the first place. Fisher et al (2007: 148) argue that while conflicts

undermine peoples ability to participate in decision making processes, these

opportunities expand after transition and mechanisms should be developed to handle

disagreements. Lack of participation could further disempower victims who have

already lost so much during conflicts and ignoring peoples concerns could jeopardize

the whole process by creating further tensions.

The key to participation is its ability to empower all stakeholders in conflict by

engaging them in all decision making processes. Kraybill (2004: 13-15) identifies

several core principles of a participatory approach which are applicable in designing

truth commissions.

1. The interests, concerns and motivations of various groups should beconsidered and appropriately engaged in the design process to ensure

sustainability. This includes people from all levels who will be affected, those

who could block the process, experts and national and international agencies

which could provide human and financial resources.

2. When mistrust is high, it is crucial to demonstrate impartiality in sponsorship.

For instance, the public had little confidence in the 1986 Ugandan truth

commission as it was initiated by Museveni government to investigate past

violations while human rights abuses continued under his regime as well.


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3. Relevant stakeholders should be involved in all stages of the process, not only

in few selected stages.

4. Multiple forums should be considered in alignment with cultural norms to allow

space for different social groups to contribute in the settings where they feel

comfortable.

5. Provide feedback of all stages to all stakeholders. These should be widely

circulated in different forums and languages to be comprehensible to majority of

the population.

6. Truth commissions should not be designed in haste.

These principles echo empowerment components by recognizing the importance of

involving people in deciding solutions appropriate to them. Earlier, truth commissions

were setup shortly after the initial idea was proposed, but SATRC set a benchmark in

generating public discussion prior to its establishment. It took over two years with many

local and international consultations, wider public debate and a number of conferences

before it was finally established. Commissions like former Yugoslavia, Liberia, East

Timor and Sierra Leone were also setup after extended periods of debate and

discussion which indicates that the benefit of engaging with key stakeholders is

increasingly recognized when designing truth commissions (Amnesty International,

2007: 13). Lack of consultation also provides greater space for bias as people do not

have an opportunity to demand accountability from truth commissions. In the end, the

outcomes would hold less credibility for citizens in affected communities.

Public participation and consequent support for the creation of a truth

commission include support from the broader public, political parties, military, NGOs

and the international community. Past commissions demonstrate that if public support

is widespread, the work of the commission is more comprehensive and outcomes more

widely accepted (Hayner, 2002). SATRC demonstrates that participation at different

levels during the formation stage could lead to greater success of the commission andforge a deeper sense of civic pride and belonging. The entire population and not only a

select few need to be involved in this process, but the dilemma is that in most post-

conflict countries, the majority of the population reside in rural areas and may not be

mobilized in any coherent, strong or sustained form to demand or engage in public

participation. Therefore, working with CSOs is crucial to gain an understanding of

peoples concerns.


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3.8 Role of Civil Society Organizations

Definitions of CSOs and NGOs are often blurred and most lay persons would

use both terms loosely to indicate a broad spectrum of organizations that work for the

wider benefit of the community. Such groups tend to operate without explicit

profiteering and any profits incurred are reinvested into the organization for its

developmental work. Clark defines NGOs as private, non-profit, professional

organizations with a distinctive legal character, concerned with public welfare goals

(Clark, 1998: 2-3). He further clarifies that NGOs are separate from the state, political

parties, profiteering corporations and are legitimate by official registration, but

acknowledges that in countries of authoritarian rule they may work covertly and without

official recognition. Roht-Arriaza (2002) defines CSOs as those covering a broad

group of political and non-political actors such as grassroots organizations, religiousgroups, victims groups, etc. She defines NGOs as organizations that are formally

established and recognized by both the public and government. For the purpose of this

paper, I will use both CSOs and NGOs interchangingly as CSOs are also increasingly

officially recognized and many peoples organizations at grassroots level consider

themselves as NGOs.

While debate ranges on CSOs contribution to development, for this paper I will

focus on their capability to mobilize the community for wider participation in thedecision making process. Robert Chambers in his many publications argues the CSOs

have wider recognition and trust within their communities. Hayner (2002: 34) argues

that the involvement of diverse CSOs, including victims groups, often determines the

success of truth commissions. Kritz states that the success of the Chile, South Africa

and Guatemala truth commissions could be attributed to the wide and sustained

participation of the victims coalitions, human rights groups, church leaders and other

CSOs. He maintains that

Without the active participation of civil society and resultant sense ofpublic ownership, a truth commission could produce a technicallyaccurate history of the conflict and abuses, but the report might berelegated to an academic shelf, without making any meaningfulcontribution to the reclamation of societys sense of values, tolerance andrespect for human rights, (Kritz, 2002: 38).

CSOs engagement would allow greater ownership and acceptance of the commissions

outcome, but in most post-conflict countries, at least for a certain period of time CSOs

may not exist in considerable strength to mobilize the community and to demand for

wider public participation.


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In post-conflict societies where most institutions and CSOs have been

destroyed, establishing a truth commission may not be the most feasible exercise. Kritz

(2002: 38) citing examples from Rwanda and Bosnia, argues that if CSOs and other

institutions do not exist in any meaningful way, truth commissions should not be

established in that period as it does not allow for wide public participation to obtain

proper accountability. He suggests that truth commissions could be established when

the CSOs had recovered sufficiently to be functional at national and local levels24.

Barahona de Brito (1997: 86) states that in Uruguay human rights organizations were

not coordinated, lacked local and national coverage and did not enjoy protection from

the churches and consequently they were not in a bargaining position during the

establishment of truth commission. Truth commissions should be initiated after gauging

the environment and CSOs should be supported by government and international

agencies to allow them to mobilize people into participating in the design process.

CSOs participating in the truth commission establishment process need to be

representative of the wider community. Hayner (2002: 147) reports that although CSOs

were engaged in the establishment process of the SATRC, people questioned if these

groups represented their views and concerns. Although ANC viewed itself to represent

large sections of the community, this was not necessarily true. Apart from Khulumani

there were few victims organizations in South Africa in that period to represent the

various groups. This echoes Kritzs concerns that truth commissions should not be

established when the CSOs are still weak in numbers and strength. However, in the

considerable intervening period of deliberation before the setting up of a truth

commission, CSOs may take advantage of the space to form, re-establish or

strengthen themselves.

3.9 Conclusion

Truth commissions are official bodies setup in post-conflict situations toestablish a common and unbiased history of a particular context, to provide platform for

24For instance in Rwanda it took about five years before the CSOs were functional at both local

and national levels. This allowed the setup of gacacacourts.

In Bosnia, under communism CSOs did not have political space to operate and majority of thepeople commonly accepted the top down approaches in decision making. But my 2000 manydiverse CSOs flourished in Bosnia and demanded their participation in establishing truthcommission. In January 2000, 80 CSOs delegates took part in a Conference on this issue,representing a diverse group of human rights groups, victims groups, religious organizations,

political parties, youth groups, womens groups and academia (Institute for War & PeaceReporting, 2006).


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victims to convey their grievances, to recommend institutional or other reforms, to

address root causes of past conflict and to provide some form of justice and

accountability. While acknowledging that truth commissions are context specific and

diverse, minimum international standards have been identified, which include the

importance of participation in their design and establishment. Data indicates that 80%

(Figure 3) of truth commissions are setup by presidential or similar decrees and

therefore are considered as a top-down approach due to a lack of consultation with

victims. For truth commissions to be genuine catalysts for reconciliation there is a need

to integrate elements of top-down and bottom-up reconciliation efforts, to define an

approach which is sustainable and acceptable to the majority in a community. Local

grassroots level reconciliation is important but societal reconciliation is crucial as the

country as a whole needs to address issues. Different actors have significant roles to

play at different stages of peace building to achieve this. For societal reconciliation, the

need for unifying and impartial leaders cannot be underestimated. These leaders

should portray conciliatory attitudes in their personal and professional demeanour,

particularly if they support the formation of a truth commission. People should be

engaged from the beginning to explore the need for a truth commission to be

established, they should not be informed only in the legislation design process. Best

practices in policy design and participatory approaches should be utilized. In situations

where institutions and CSOs are relatively weak immediately after transition, truth

commission should not be established until they have had time to strengthen

themselves to mobilize people for participation.


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CHAPTER 4 CASE STUDIES

4.1 Introduction

This chapter will provide a factual account of how the South African Truth and

Reconciliation Commission (SATRC) was designed and compare it to the design and

promotion process of Fijis Reconciliation, Tolerance and Unity Bill (RTU). It will

analyze the two situations in context with the international debates highlighted in

chapters 2 and 3 to demonstrate the significance of participation during the design of

truth commissions and the adverse impact of non-participation. The RTU Bill is the

main focus of this dissertation and SATRC is utilized as a comparator for two main

reasons. Firstly, when the RTU Bill was promoted in Fiji the success of SATRC was

reiterated and legislators involved in designing the policy highlighted that SATRC had

been studied to draw lessons and to emulate as much if not more success than the

SATRC. However, despite this rhetoric, this case study will demonstrate that the RTU

Bill differed from the SATRC in the manner in which it was designed and promoted.

Secondly, while it is acknowledged that South Africa and the Fiji have little in common

in the social, historical, political and legal contexts, the issue of race relations is

significantly similar. In both countries, history shows that governments in power actively

legislated racist policies. In South Africa this was deemed apartheid and in Fiji it was

considered affirmative action in the favour of the indigenous populations. In both

countries truth commissions were designed (attempted in Fiji) to encourage

reconciliation among the conflicting communities.

South African Truth and Reconciliation Commission

4.2 Historical Background of Apartheid in South Africa

To contextualize the need to establish the SATRC the historical background of

apartheid in South Africa should be understood. Apartheid25 is defined as criminal acts

espoused by legislations and practices to segregate, dominate and systematically

suppress certain populations based on racial identity. It includes denial of life and

liberty, selective killings, gross human violations including physical, mental and

emotional torture. Such regimes may also make use of arbitrary arrest, systematic

restriction of movement, restrictions on political, social, economic and cultural

25Definition by Office for the High Commission for Human Rights, Accessed on 17/08/07

http://www.unhchr.ch/tbs/doc.nsf/0/18c91e92601301fbc12563ee004c45b6?OpenDocument


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participation. Society is marked by divisions along racial lines and persecution of

individuals and agencies opposing the apartheid regime.

Since 1910, power in South Africa had been uneasily shared between British

and Afrikaaner descendents without much input from the local population. The National

Party (NP) formed in 1914 by Afrikaaner nationalists, first came to power in 1924 with

J.B.M. Hertzog as the Prime Minister (South Africa History Online26). While NP was not

the only political party to promote apartheid, the Hertzog government laid early

foundations for apartheid by allowing voting rights for white women only even though

there was no white majority. Politicians were decidedly unaffected by the concerns of

liberation movements (Kelly, 2002: 41). NP came into majority political power in 1948

and reinforced existing latent restrictions into explicit apartheid legislation which

segregated whites, blacks, coloureds and Asians within South Africa. Appendix 3

shows 25 legislations which were systematically enacted over a period of 57 years and

encompassed every aspect of life such as voting, land, housing, residence, education,

transport, health services, sports, access to public infrastructure and places, even

cemeteries. These policies impinged on the non-white populations freedom and liberty,

despite their majority in numbers. Resistance movements such as the African National

Congress (ANC) and the Pan African Congress (PAC) were established by African27

and coloured people to campaign against these injustices and restrictions. PAC was a

splinter ANC group and more combative against the state.

The ANC and PAC campaigns against NP government were largely ignored,

which led the ANC and PAC to become increasingly subversive. The ANC conference

in 1955 adopted the Freedom Charter which emphasized equality and freedom for all

populations within South Africa (ANC, 2007). However, NP government declared this

charter a communist document and arrested key ANC and Congress28 members. The

ANC and PAC were driven underground after it was outlawed by government in 1960following the Sharpeville incident in which 30,000 Africans demonstrated peacefully

26http://www.sahistory.org.za/pages/governence-projects/governance.htm on 17/07/0

27For the purpose of this paper, I will use the terms African (Blacks within South Africa),

Afrikaners (descendents of Dutch and Europeans), Indian (descendents form India) andColoured (people of mixed race) to depict populations of relevant ethnic populations. Some ofANC supporters were also prominent White members like Ruth First and Joe Slovo.

28Congress of the People comprised of ANC, South African Indian Congress, Coloured

People's Organisation, and Congress of Democrats (whites who identified with the Congressmovement). http://www.anc.org.za/ancdocs/history/campaigns/cop/iwasthere.html on 1/07/07


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against carrying identity passes (Kelly, 2002: 42). Following this, the ANC leader

Nelson Mandela was imprisoned on treason charges and more than 11,000 people

were arrested (ibid). The 1976 student revolt in Soweto was another overt protest and

the subsequent arrest and murder of Steve Biko, leader of the Black Consciousness

movement created outrage within the African and coloured populations (ibid). Atrocities

were committed by both the NP government and liberation organizations in many

instances such as the Langa killings, the Church Street bombing, Magoo Bar,

Amanzimtoti Wimopy Bar bombing, St. James Church killings, Boipatong and

Sebokeng massacres as well as necklacings29 and black on black violence in East

Rand and KwaZulu Natal (TRC, 1998: 1). Mandelas Rivonia Trial speech30 sums

rtu bill (fiji) compared to satrc (south africa)

Documents