Alternative Dispute Resolution in Africa

Catherine Price referring to Jasmine Dickerson stated that ADR is not a new concept in Africa (Catherine Price); alluding to the fact that the customary traditional system of negotiation was done before the colonial era as an alternative to formal courts. (Catherine Price, 2018, Kohlhagen, 2007). Granted that the ‘traditional informal customary’ system of settling disputes is used today in many parts of Africa and the world as an alternative, the period that they seem to be referring to, would be premature to call it ‘alternative’ as there was no other preferred system, but that which the African people had.

In his article, “Alternative Dispute Resolution in Africa: Preventing Conflicts and Enhancing Stability”, Uwazie postulates that a great percentage of Africans have lost confidence in their states’ judicial systems ’to ensure timely and just closure to their cases’. In post-conflict and fragile situations characterized by high tensions and malfunctioning justice systems, there is an urgent need for “timely, accessible, affordable and trusted” dispute resolution mechanisms to resolve disagreements or disputes before they escalate to full-blown violence.

Swazi and others have noted that when issues of conflict are sent to litigation, the courts concern themselves mainly with litigation and addressing legal questions, taking little or no judicial notice of resolving the root course of the conflict. (Shamir 2003, Uwazie, 2011). Such a situation tends essentialessentiallyessential essentially to fuel a conflict as the judge may either be inadequate, or excessive, based on the party’s perception, and therefore, not the best to address convoluted conflict situations. A 2009 survey in Liberia showed that over 40 percent of cases were resolved through formal means and only 3 percent of the cases were taken through the formal court system.

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Although the situations for Sierra Leone and Liberia may have improved drastically, the fact remains that delay in concluding cases might not be anything strange in these countries. The fact that judges in most African courts still use paper and pen to scribble notes for their records is evidence enough that there is still great delay in cases, and there will be a huge pile waiting in their hands within a period.

ADR in Sierra Leone:

ADR is no longer a new concept to Sierra Leone. However, one could not be too far from being right to say the practice is relatively new. There have been statutory provisions for ADR processes such as the Arbitration Ordinance Chapter 25 of the Laws of Sierra Leone 1960 (Cap 25) which deals with commercial arbitration. Also, a Fast Track Commercial Court has been catered for under the Commercial and Admiralty Court Rules 2010, according to which rules of procedure; “all claims filed in the Fast Track Commercial Court are referred to a judge for a pre-trial settlement conference within three days of the filing of a reply by the defendant”.(Thompson, 2015). Following this, the presiding judge may invite the parties involved to go for a ‘non-litigated’ settlement. Recently, the Legal Aid Board as constituted by the Legal Aid Act No 6 of 2012 has adopted the ADR approach to provide “free legal advice and assistance to indigent persons” in trying to settle some conflicts, especially those related to land issues (AYV Television News, 09/2018). Whether they have secured this mandate is something to be proved, or perhaps they are relying on Section 40 subsection 2 (b) of the Legal Aid Act. The Truth and Reconciliation Commission is the most prominent and relevant type of an ADR process that concerns us in this study. The Truth and Reconciliation Commission (TRC) was established under the TRC Act, 2000 inter alia, “to address impunity, to respond to the needs of the victims, to promote healing and reconciliation and to prevent a repetition o,f the violations and abuses suffered.” The question put in another way is: Did the TRC of Sierra Leone deliver justice? The TRC in Sierra Leone will be dealt with in the next paragraph.

Overview of African Truth Commissions (TC)

The term truth commission is used generically to refer to bodies set up to investigate a history of human rights abuses perpetrated by governments during their reign (military or otherwise), or atrocities committed against the people of a country by fighting factions in a conflict situation (Vasallo, 2002). TC is essentially a non-judicial body which tries that under to investigate the past to determine the full extent of past abuses through truth-telling in public hearings. It holds perpetrators of past violations accountable, promotes reconciliation, makes recommendations on reparations, memorializes victims, survi,vors or historical events, and makes proposals for institutional reforms designed to prevent future abuses (Fombad 2017). In short, Truth Commissions are temporary, official inquiries, established mostly ‘during moments of regime change, particularly during a country’s transition to a democratic or open society, to determine the facts, causes, and consequences of past human rights violations. (Freeman and Hayner 2002).

The broad objective or vision of Truth Commissions is to “promote national reconciliation and unity in diversity” by sometimes “granting amnesty to perpetrators” or recommending the into its on for perpetrators of certain crimes against humanity, at the same time, ensuring justice to victims (Pathak) by providing some space for them to tell their stories, (Minow, 1999), providing reparations, acknowledging their sufferings by ‘building memorials’ and supporting physical and psychosocial healing among both the perpetrators and survivors of the violence (Finucane, 2010). Since the context and content of nations and countries are different, so every post-conflict situation has its own different needs, dictated by its historical and contextual realities; but all aim preventing at promoting national reconciliation and prevention the recurrence of conflict in that society. The TRC of Sierra Leone is no exception; testimonies of perpetrators and survivors alike manifest the quality of TRC in ‘freeing peoples’ minds by truth-telling truth-telling. The testimony of Sahr Gbekie is a case in point:

“I decided to come home and say the truth, as I am doing today. I know if we had made it very secretive, without the public knowing what happened, the son who is today in another world would continue to torment us; because it would have been a burden. When you have something to say and you don’t say it, it is a load… My mind and that of my family are [now] free. ” (www.ictj.org 2014).

Argentina was the first country to successfully hold a truth Commission after its brutal military leader passed an amnesty to perpetrators including him. ( Moore, J). TRC has been established in several African nations in modern times and there is more to come given the spate of internal conflicts in countries on the continent. The most prominent is the South African Truth and Reconciliation Commission, which was a ‘critical yeast’ for TRC in Africa generally (Fombad,2017).

Arguments for and Against TRC:

The concept of Truth and Reconciliation Commissions (TRC) has been criticized by victims of many legal, historical, philosophical, and political viewpoints. A contentious issue for those against the TRC is that of issuing ‘conditional amnesty to perpetrators that have committed human rights offenses. Proponents of this view insinuate that allowing people who have committed crimes and answered to them to go free is ‘sacrificing justice on the altar of truth’. The anti-TRC proponents are arguing mainly from the human rights perspective. Legally, every crime must be punished. Some of these human rights activists, therefore, favor criminal prosecution over investigatory commissions as the best method to deter a recurrence of violent conflicts in society. (Vasallo,2002). Thein criminal law stands to mete out punishment as a way of retributive justice to offenders of the law for their transgression.

According to International Law, amnesty for crimes against humanity is prohibited everywhere in the world, and the International Criminal Court (ICC) has jurisdiction and mandate to prosecute such crimes in any country that has signed intoits pact, where such a country lacks the capacity or capability to prosecute, and/or where it has the capacity but fails to pursue or prosecute the same. Former South African Judge Goldstone given his view on amnesty said, “I think South Africa just scraped by with the amnesties”. “By today’s standards, I would find it difficult to amnesty crimes against humanity. In 1995, it was a little different.” Human rights advocates often warn that failing to hold perpetrators accountable for their deeds perpetuates a “culture of impunity.”(Moore J.2010).

Méndez, the former U.N. special advisor on genocide, in his contemplation about running a transition system for Burundi, recommended the dual approach – truth commission and prosecution. He said: “Both aspects, truth-telling, and prosecutions of perpetrators, are obligations of the state in transitional justice, and both have to be conducted in good faith;” “What I reject is the notion that the state can say it will not prosecute anyone but it will give the victims a report on what happened. That is a travesty because it tries to exchange the demands for justice for a truth-telling exercise.” (IRIN News, 2006). Others like Priscilla Hayner (2002) were very doubtful about the potential of truth commissions to bring about reconciliation at the personal or individual level. They, therefore, recommended a separation thesis: that commissions and affected societies separate individual reconciliation from national reconciliation. Giving amnesty as an incentive for people, to tell the truth, may tempt many to tell lies and pretend they are apologetic for their crimes (Moore, J.2010).

Proponents in favor of amnesty in TRC have argued though that TRC is an appropriate method for situations such as those where the crimes perpetrated are on a national scale. For them, the focus is to be able to get perpetrators the confess and acknowledge their wrongs and, victims and survivors willingly forgive their perpetrators after they would have been allowed to air out their grief. Also, the number of people involved as perpetrators in such conflicts I usually very large, and obtaining evidence to prosecute some crimes may almost be impossible. Therefore, the prosecution may well be a waste of time, if not a futile venture. Meanwhile, the perpetrators and survivors may be staying around and the healing process may be delayed, thus keeping the wounds of war open.

Because of the flexibility of the TRC process that dodoes do not have strict rules of procedure and evidence to comply with like the formal cocourt’surts system, the TRC can be able to gatha er huge amount of evidence and hear witnesses, and consequently will be able to resolve more cases within a shorter timeframe than the trial system.

The pro-TRCTRCs School believes that amnesty is a critical requirement for the success of the process. Political scientists Jack Snyder and Leslie Vinjamuri have been cited to say that the successes of some TRCTRCs were because of the amnesty attached to them (Moore J. 2010). It was noted that at the TRC of Sierra Leone, ex-combatant was not willing to testify for fear of being prosecuted, even after the Prosecutor of the Special Court David Crane in a Press Briefing made it clear that the court will not seek information from the TRC (Dougherty, 2004). Perpetrators are more likely to testify when they are confident that they would not be indicted based on their testimony to the TRC. The South African TRC is a case in point, where, 7,000 perpetrators gave evidence in a short time when their testimonies were ‘exchanged’ for amnesty.

Some threatened to quit the process and continued fighting if the amnesty is lifted and prosecution recommended (Gordon, G. 2009).

Critics against amnesty or TRC see justice not as an alternative but as a sine qua non of reconciliation,5 and this view resonates well with many legal systems (Storey, P.1997). Viewing it from this perspective, however, may mean that one is viewing justice from a myopic point of view that defines justice with a ‘retributive lens’ which endorses that justice requires punishment for the perpetrator. (Duff, A)

Be that as it may, both processes – trials and truth commissions – are not mutually exclusive and each has the potential to achieve advantages the other may not. Like Justice Goldstone puts it, “I see all of these things as tools of transitional justice, and you’ve got to use the best tools for the situation.” Studies have shown that TRC by itself, areas prosecute that are not good for human rights and democracy but when combined with prosecution and amnesties, TRC is likely to improve democracy and human rights. (Olsen TD, et al. 2010) Little surprising therefore that Sierra Leone had to utilize, the dual approach to attaining justice after the brutal civil war – the Special Courts and the TRC.

The Sierra Leone Truth and Reconciliation Commission (2002 – 2004)

Sierra Leone experienced an internal armed conflict between the government and insurgent factions from 1991 to 2002. On July 7, 1999, the Government of Sierra Leone led by President Ahmed Tejan Kabbah and the rebel Revolutionary United Front (RUF) signed a Lome Peace Agreement. (Crisis Group, 2002). Article XXVI of

The Lomé Peace Agreement granted blanket amnesty to all combatants and called for the establishment of a truth and reconciliation commission. In February 2000, the agreement was passed into law The Truth and Reconciliation Act 2000, February 10, 2000, to inter alia ‘receive testimony from all perspectives: combatants and non-combatants, victims and perpetrators; produce a report on the human rights violations from 1991, provide a safe space were victims, survivors and perpetrators can tell their stories and recommend policies to facilitate reconciliation and prevent future violations.”

About 8,000 statements were collected plus an additional 1,500 from an NGO Campaign for Good Governance (CGG), and ninety public hearings were held, with about 350 testimonies obtained from individual witnesses (Hayner, 2003). But was the TRC able to deliver justice at all?

Transitional Justice: An Overview

According to the United Nations, Transitional Justice is defined as “the full range of processes and mechanisms associated with a society’s attempt to come to terms with a legacy of large-scale past abuses, to ensure accountability, serve justice, and achieve reconciliation.” (S/2004/616), para. 8.).

The International Centre for Transitional Justice (ICTJ), a New York-based research group working with regimes in transition, provides a somewhat operational definition for Transitional Justice as “a response to systematic or widespread violations of human rights. It seeks recognition for the victims and promotes, possibilities for peace, reconciliation, and democracy. Transitional Justice is not a special kind of justice but justice adapted to societies transforming themselves after a period of pervasive human rights abuse.” It went on to state that transitional justice is “the ways countries emerging from periods of conflict and repression address large-scale or systematic human rights violations so numerous and so serious that the normal justice system will not be able to provide an adequate response. (ICTJ, 2008). Transitional justice unlike other forms of justice can be both judicial and non-judicial processes and mechanisms, including truth-seeking, prosecution, reparations, institutional reform or vetting, or, an appropriate combination thereof, addressing the root causes of conflicts, There are 4 key elements in transitional justice: Prosecution, Truth Commission, Vetting and Reparation or Compensation.

Transitional justice aims at recognizing the dignity of the victims as human beings, as well as redressing and acknowledging human rights violations of the past, and, ensuring that sucviolationsh violations did not recur; by holding perpetrators accountable, compensating victims and survivors for past abuses, and, promoting social cohesion and healing among all affected persons.

Most countries after prolonged wars must have lost every structure that is responsible for the good governance and democracy of the state: the judiciary, the legislature, and the defense system would all be in limbo. The state may lack the ability to investigate and prosecute atrocious crimes committed against its very citizens by its citizens. Such countries might be ‘stateless’ or at best fragmented and governed by different fighting factions. Often than not, the international community may have to provide support for them to transition from that quagmire to a stable and peaceful state. Doing so can be very challenging as it involves restoring stability by applying methods that accept a coalition of justice with amnesty for peace and reconciliation.

In Sierra Leone, the government with support from the International community and Civil Society embarked on a dual process of Prosecution and Truth-seeking, by employing the Special Court of Sierra Leone and the truth and Reconciliation commission both running relatively simultaneously. The TRC ran for about two years and delivered its report with some recommendations that would help Sierra Leone recoup its statehood, and her people – perpetrators, victimvictimsvictim victims,  it’s from survivors – live together again as one.