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The Dance of Truth and Justice in Postconflict Peacebuilding in Sierra Leone

Document Cited in Related
Vincent
AuthorLydia A. Nkansah
Date01 June 2015
Pages199-225
DOI10.3366/ajicl.2015.0118
Published date01 June 2015
INTRODUCTION

Since the 1980s, many states transitioning from complex political emergencies or conflicts have sought to pursue accountability for human rights abuses as part of their democratisation and/or peace-building process.1

M. Humphrey, ‘From Victimhood: Truth Commissions and Trials as Rituals of Political Transition and Individual Healing, 14(2), Australian Journal of Anthropology, (2003): 171–88.

The challenge though has been how best to manage the consequence of a violent past.2

E. Skaar, ‘Truth Commissions, Trials – or Nothing? Policy Options in Democratic Transitions’, 20(6) Third World Quarterly (1999): 1109–28; Y. L. Sooka, ‘The Politics of Transitional Justice’, in C. L. Sriram and S. Pillay (eds), Peace Versus Justice? The Dilemma of Transitional Justice in Africa, University of KwaZulu-Natal Press (2009), pp. 1–18; K. C. Moghalu, ‘Prosecute or Pardon? Between Truth Commissions and War Crimes Trials’, in C. L. Sriram, and S. Pillay (eds), Peace Versus Justice? The Dilemma of Transitional Justice in Africa, University of KwaZulu-Natal Press (2009), pp. 69–95.

 Transitional justice has emerged as a tool by which transitional democracies answer to the demands for accountability for past abuses. The policy responses range from the adoption of purely restorative or retributive mechanisms to a combination of both.3

B. P. Hayner, Unspeakable Truths: Facing the Challenge of Truth Commissions, Routledge (2002).

 After 11 years of civil war in Sierra Leone, their government collaborated with the UN to establish the Truth and Reconciliation Commission (TRC) and the Special Court for Sierra Leone (SCSL) to address the baggage of abuses of the conflict. These two mechanisms had the same goal: to facilitate peace and stability in Sierra Leone, but through different approaches. The TRC was a restorative mechanism in that it was to reveal the truth about the conflict for the purposes of forging healing and national reconciliation with no punitive component. The SCSL was to conduct trials and punish those found guilty for the abuses that took place.4

See sections 6, 15 and 16 of the Truth and Reconciliation Commission Act 2000; see also Article 1 of the Statute of the Special Court for Sierra Leone and S. Berewa, ‘Addressing Impunity Using Divergent Approaches: The Truth and Reconciliation Commission and the Special Court’, in UNAMSIL (eds), Truth and Reconciliation in Sierra Leone: A Compilation of Articles on the Sierra Leone Truth and Reconciliation Commission, David Williams Associates (2001), pp. 53– 60.

The following brief background into the establishment of these two institutions provides readers with a fuller appreciation of the importance of these juridical bodies

A civil war broke out in March 1991 between the Revolutionary United Front (RUF), a rebel group in Sierra Leone, and the government of Sierra Leone, in which massive human rights abuses took place.5

L. Gberie, ‘First Stages on the Road to Peace: The Abidjan Process (1995–96)’, in Paying the Price: The Sierra Leone peace process (2000), available at http://www.c-r.org/our-work/accord/sierra-leone/first-stages.php (accessed 27 July 2006); I. Smile, L. Gberie and R. Hazelton, The Heart of the Matter, Sierra Leone, Diamond & Human Security, Partnership Africa Canada (2000).

In 1999, the government and the RUF met in Lomé to negotiate for the peaceful settlement of the conflict as none had emerged a winner after a protracted conflict.6

‘Report of the Truth and Reconciliation Commission of Sierra Leone, 2004’, available at http://www.trcsierraleone.org/drwebsite/publish/index.shtml (accessed 10 July 2006).

 Civil society groups supported the government's decision to negotiate the conflict but advocated for the inclusion of accountability mechanism for the human rights abuses as a means of breaking the cycle of impunity in Sierra Leone.7

R. Bennett, ‘The Evolution of the Sierra Leone Truth and Reconciliation Commission’, in UNAMSIL (eds), Truth and Reconciliation in Sierra Leone: A Compilation of Articles on the Sierra Leone Truth and Reconciliation Commission, David Williams Associates (2001), pp. 37–51.

 This is because earlier attempts at peaceful settlement did not include any form of accountability.8

Conakry Peace Plan and The Abidjan Peace Accord, 1997.

 Even though civil society groups wanted a mechanism that would administer justice, truth and reconciliation, the reality on the ground suggested that to achieve any favourable response from the RUF, the people of Sierra Leone might have to sacrifice accountability (judicial trials) for peace.9

R. Bennett, supra note 7.

 It was therefore necessary to have an alternative accountability approach in the face of the imminent amnesty at Lomé. While the RUF and the government were negotiating peace, the government of Sierra Leone, the UN High Commissioner for Human Rights, the Special Representative of the UN Secretary-General (SRSG), the National Forum for Human Rights and the National Commission for Democracy and Human Rights signed a manifesto and agreed to a truth and reconciliation commission as an accountability mechanism for addressing human rights violations in Sierra Leone.10

Ibid.

 Consequently, the Lomé negotiation resulted in granting a blanket amnesty for all the warring factions, with a provision for the establishment of a Truth and Reconciliation Commission to administer restorative justice.11

T. Kabbah, ‘Written Testimony to the Truth and Reconciliation Commission of Sierra Leone on 5 August 2003’, available at http://www.sierra-leone.org/kabbah080503.html (accessed 6 May 2006); ‘Peace Agreement Between the Government of Sierra Leone and the Revolutionary United Front of Sierra Leone, 1999), available at http://www.sierra-leone.org/lomeaccord.html (accessed 20 February 2006).

The parliament of Sierra Leone passed the Truth and Reconciliation Act in 2000, but before the TRC was established hostilities broke out that brought about a shift in the accountability policy. In breach of the cease-fire agreement, the RUF attacked and kidnapped UN peacekeepers. This led to demonstrations and subsequent attack by the RUF on demonstrators, resulting in casualties. Foday Sankoh, the RUF leader, fled but was arrested and put into custody. Consequently, the government of Sierra Leone requested the Security Council to set up a court to prosecute the RUF. The UN entered into an agreement with the government to set up the SCSL.12

S. Berewa, supra note 4.

The implementation of the TRC and SCSL coincided creating a side-by-side existence

The government of Sierra Leone and the UN collaborated in setting up these two institutions. At the level of the UN, they were overseen by separate sections. The Office of the High Commissioner for Human Rights (OHCHR), Geneva, was in charge of the TRC. The UN Office of Legal Affairs (OLA), New York, had oversight of the SCSL.13

‘Report of the Truth and Reconciliation Commission of Sierra Leone’, supra note 6.

Both institutions were duly established and operated concurrently. The TRC completed its work and submitted its final report in 2004. The SCSL outlived the TRC to carry out its functions and was closed down in 2013. The SCSL was succeeded by a Residual Special Court to continue to carry out the legal obligations of the SCSL operation. This study focuses on the contexts of the period when both institutions were established and existed concurrently in addressing abuses and impunity in Sierra Leone

Similarly, in East Timor, Peru and Argentina restorative processes and trials were used for transitional justice.14

E. M. Evenson, ‘Truth and Justice in Sierra Leone: Coordination Between Commission and Court, 104 (3) Columbia Law Review (2004): 730–68; ‘Report of the United Nations Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-conflict Societies’ 2004, S/2004/616.

The idea, or the practice, of combining restorative and retributive approaches to transitional justice seems to gain support. For example, Doyle15

Evenson, ibid.

 opined that restorative and retributive accountability mechanisms are mutually reinforcing as tools for repairing abuses of the past. In the view of Crocker, ‘punishment and reconciliation … do ‘‘pull in different’’ directions and sometimes clash … they are both urgent goals that often can be combined in morally appropriate ways’.16

As quoted in N. Doyle, ‘Chile's Process of Recovery from Human Rights Violence: Evaluating Restorative and Retributive Approaches’, unpublished master's thesis, Dalhousie University, 2004, p.31.

 The International Centre for Transitional Justice (ICTJ)17

International Centre for Transitional Justice , The Special Court for Sierra Leone: The First Eighteen Months, Prosecutions Case Studies Series, 2004 , available at http://www.ictj.org/ images/content/1/0/104.pdf) (accessed 3 August 2007) .

 reported that, their survey results in five war-torn countries particularly that of Uganda showed that, mostly, victims ‘want both peace and justice and do not see these as incompatible goals’. Kofi Annan, former UN Secretary-General commented that, ‘it is now generally recognised … that truth commissions can positively complement criminal tribunals’.18

‘Report of the United Nations Secretary-General on the Rule of Law and Transitional Justice in Conflict and Post-conflict Societies’, supra note 14, p. 9.

 The Inter-American Commission on Human Rights (IACHR) observed that transitional justice, consists of the right to the truth – the public acknowledgement and validation of violations as well as their prosecution and punishment. The IACHR also held that a state's right to know the truth does not serve as a bar to the right to judicial redress, but the revelation of the truth leads to the addressing of impunity.19

Ignacio Ellacuría and others v El Salvador,10.488 inter-Am.C.H.R No.136/99, available at http://www.derechos.org/nizkor/salvador/doc/jesuits.html (accessed 7 November 2005); Carmelo...

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