Too much of a good thing: When transitional justice prescriptions may not work

• Date: 04 March 2021
• DOI: https://doi.org/10.47348/SACJ/v33/i3a1
• Author: Ojo, VO.
• Published date: 04 March 2021
• Citation: (2020) 33 SACJ 525
• Pages: 525-541

Too much of a good thing:

When transitional justice

prescriptions may not work

VO OJO* AND N FILBERT**

ABSTRACT

Transitional justice developed as a prag matic concept prescribing a set of

mechanisms to be used by so cieties or countries exper iencing systematic

periods of armed con icts or emergi ng from authoritarian reg imes

characterised by eg regious violations of human rig hts or humanitar ian

law. While relative success stories of its uti lisation have been recorded,

questions have been raised rega rding the recent tendency to presc ribe

transitional just ice for societies which have not or are yet to undergo any

transition. Th rough its lack of success in Nigeria and debatable effectiveness

in Uganda, the art icle shows that transitional jus tice mechanisms are not

a cure-all. W hile it does not contend that the re is a perfect notion of

transitional just ice, the article proposes that transitiona l justice mechanisms

must be designed from the grou nd up, with the victims at the cent re of the

process. While tr ansitional justice is a g lobal project, this a rticle argues

that its success can be achieved when it s applicability and adm inistration

take into account the contextu al and indigenous focus with a move towards

localising its mechanisms.

1 Introduction

Since the rst appearance of transitional justice, the discipline

has attracted attention and comm anded global application.1 Its

prescriptions have been consistently utilised i n a number of countries

in Latin America, Europe and Africa experiencing varying forms of

transitions. Resulting from its relative success, its basic mechan isms

such as prosecutions, truth and reconciliation seeking, amnesties,

purges, reparations, and institutional reforms have been extrapolated

as a prescription to almost all countries experiencing armed conicts,

repressive leaderships and forms of violence against vulnerable

* LLB LLM; Do ctoral research er in Internation al Crimin al Law, Faculty of Law,

Humboldt Universitaet z u Berlin. Project Man ager and Researcher, Future Ch allenges

NGO, Nigeria.

** LLB LLM PhD; Doc toral researcher, Faculty of Law, Humboldt Univer sitaet zu Berlin,

Germany. Assistant L ecturer, University of Dar es Salaa m School of Law, Tanzania.

1 S Lefranc and F Vairel ‘T he emergence of tran sitional justice as a pro fessional

internationa l practice’ in L Israel a nd G Mouralis (eds) Dealing with Wars and

Dictatorships: Legal Concepts and Categories in Action (2014) 235 at 236.

525

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(2020) 33 SACJ 525

© Juta and Company (Pty) Ltd

groups and other forms of crisis.2 While relative success stories of

the utilisation of transitional justice mechanisms have been recorded

in a number of countries in which they were administered, varying

questions have also been raised regarding its suitability for others.

Accompanying these questions is the recent tendency to prescribe

transitional justice for societies which have not or are yet to undergo

any transition, leading to so-called pre-transitional justice.3

The recent approach seems to dilute the prescriptions by admi nistering

them to all situations which, though appeari ng sick, have arguably

not reached a level to justify its requirement. Also noteworthy is the

worrying tendency of templatising transitional justice mechanisms,

including the suggestions of utilising its remedies as a cure-all for any

and every conict situation regardless of suitability and local context.

The pertinent questions t hen remain: What is transitional justice

without transition? Are transitional justice mechanisms useful in all

situations?

In addressing the issues raised, t his article is organised in four parts.

Part 1 explores the background of the evolution of transitional justice as

a pragmatic concept to deal with the in herent challenges of transitioning

societies. Part 2 identies relevant case studies of successful utilisation

of transitional justice mechanisms. Part 3 examines t he applicability of

the transitional justice discourse in situations which, in actual sense,

may not require its application despite persistent appeals from the

prescriptions’ experts. This will be done exploring more closely the

case studies of Nigeria and Uganda. Part 4 concludes the work by

providing recommendations for a better approach to a more effective

transition al justice reg ime.

2 Understanding transitional justice

Transitional justice developed as a pragmatic concept prescribing a set

of mechanisms used by societies or countries experiencing systematic

periods of armed conict or emerging from authoritarian regimes

characterised by egregious abuse of human r ights or humanitarian

la w.4 The concern for these societies was how to accountably deal with

the dark past of their histor y in a manner that does not compromise the

2 Ibid.

3 Lefranc and Vairel op cit (n1) 242–243.

4 EA Posner and A Vermeule ‘Transit ional justice as ord inary jus tice’ (2004) 117

Harv L Rev 762 at 766; M Krotosz ynski ‘Transition al justice models an d analytic

philosophy: Towards theory’ (2017) 46 Polish Polit Sci Yrbk 9 at 10; P Lundy and

MMcGovern ‘Whose jus tice? Rethinking transit ional justice from bottom up’ (2008)

35 J Law & Soc’y 265 at 267; K Bohl ‘Breaking the r ules of transitional just ice’ (2006)

24 Wisc Internat L J 557 at 557–569.

526 SACJ . (2020) 3

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© Juta and Company (Pty) Ltd