Commission of Inquiry: a political expedition or a useful adjunct to Transitional Justice process? What can Sierra Leone learn from Uganda?
When events occur I like to wait and see what information comes to light before jumping in with 'it's this' or 'it's that'. What appears to be one thing at the start can become something quite different a few months or years later. I have read many articles and heard stories and explanations about the government’s proposed Commission of Inquiry into the execution of 29 citizens of Sierra Leone in 1992. And I have long seen and heard more than enough to shake my head at claims that Sierra Leone is indeed faced with the dilemmas of Truth, Justice and Security.
Since I heard the news about the proposed Commission of Inquiry, I had wanted to add my own little voice, but writing on such a sensitive issue was a real conundrum. I didn't want to re-open my mind to reflect on the impact of the war on Sierra Leone. I was continually floating between fear and doubt, asking: can I say something or shut my mouth? I also wondered: Should I do it in the voice of the little ones (the children and youth), myself at aged 10, thrown into the pit of hell for a conflict I did not know about or contribute to? Further, I thought would the government and the people of Sierra Leone pay heed to my young voice and also would my fellow survivors and victims of the war understand if I write something, or would my modern friends understand what had hit me if I sounded like a wounded-lion?
My recent visit to Uganda made me think about the potential magnitude of what is unfolding in Sierra Leone, and its implications for peace and the next generation. Indeed, I’ve been very deeply distressed in my visit to Uganda; it reminded me so much of what happened to us in Serra Leone. Recalling that the people of Uganda had, in the post-colonial era, witnessed a number of conflicts , and being one of the first countries to set up ‘Truth Commission’ in human history , under considerable international pressure, in 1974 by Idi Amin to investigate human rights violations perpetrated during the 1971-1973 period. Over the years, Uganda has been seeking the path to reconciliation, peace, justice and exploring alternatives to development. Sadly, the recent terrorist attack and bombing in the capital -Kampala on the night of July 11 2010, that claimed the lives of over 75 persons is a serious setback for peace. Coincidently, these attacks took place the very day- I arrived in Kampala from London...very heartbreaking experience indeed!
Given my experience in Uganda, now I feel obliged to share my thoughts on this very sensitive issue of Truth, Justice and Security in Sierra Leone. The issues I want to raise are: reflections on our sad chapter of the conflict, the advent of the Commission of Inquiry and its implications for our consolidated peace process; the contradictions between Truth and Reconciliation Commission (TRC) and the Commission of Inquiry in the midst of truth, justice and security, while looking at individual differences.
The sad chapter of the war
I noted that in our struggle to end the war, the greatest victims and supporters were young people. We almost instinctively had to be on the side of the disenfranchised, of the voiceless ones, fighting injustice, oppression and evil, and engaged in sustained students’ demonstrations at the expense of our lives and properties. I have continued to feel strongly about the sacrifices of young people.
And, as a survivor and someone who greatly contributed to post conflict reconciliation efforts, whenever I think about the conflict in Sierra Leone, my heart aches, and questions linger in my heart: I say why our memories are so short? Have we forgotten our humiliation? Have we forgotten the collective punishment, the killings and maiming, in our own history so soon? Have we turned our backs on the opportunity TRC presented, in our search for lasting peace and reconciliation? Have we forgotten about our pledge to keep the peace and save ‘succeeding generations from the scourge of conflicts’ (as per the preamble of the United Nations)?
Truth, Reconciliation and Peace
Countries emerging from periods of widespread human rights violations can choose from a number of different judicial and non-judicial methods designed to help them to come to terms with their recent past. Truth commissions represent one such method that is non-judicial and restorative, rather than judicial and retributive, in nature. The primary goals of truth commissions are to help post-conflict societies reach the truth about past human rights abuses and to achieve reconciliation. All efforts to post conflict societies after a violent conflict are difficult and will inevitably be met with criticisms and face a number of dilemmas - about how to do justice to the people who have suffered, how to punish the perpetrators, and how to prevent the violence from erupting again.
The TRC was established as a condition of the ‘Lomé Peace Accord’, and it was signed by President Ahmad Tejan Kabbah and RUF leader Foday Sankoh, with the assistance of the international community on July 7, 1999. The Truth and Reconciliation Commission's mandate was to create an impartial historical record of violations and abuses of human rights and international humanitarian law related to the armed conflict in Sierra Leone, from the beginning of the Conflict in 1991 to the signing of the Lome Peace Agreement; to address impunity, to respond to the needs of the victims, to promote healing and reconciliation and to prevent a repetition of the violations and abuses suffered during 11 years civil war. Naturally, one would expect that Sierra Leoneans; especially those seriously affected by the war, had the opportunity of airing out our views. However, I noted that, some did not participate in the TRC process, and if this was the case, then regrettably so, it was an error to note.
But, reconciliation itself is full of contradictions and paradoxes. It is a process that has to take many complex and sometimes conflicting concepts into consideration – like truth, justice, security, forgiveness and apologies. Reconciliation looks at the past, and at the same time tries to bring hope for the future, and in the case of Sierra Leone, it had to do this in the middle of a very difficult presence. Different people have different ideas about how to get to reconciliation – some believe that justice is most important, but others stress truth. To complicate matters further, there was the question of different groups generated by the war: The perpetrators, the victims and survivors, the bystanders that did nothing, and the people who tried to help. These groups all have different expectations of reconciliation and different needs and concerns for the past, present and the future. And as my old friend put it thus: ‘’Well, we know there are many points of view (the number is numberless)... there is no forcing consensus. But, we must not forget -- that reconciliation and forgiveness are not easy to embrace...and there is no formula for what heals the human heart and soul’’
Justice, Fear and Security
In all societies marked by violent conflict, ideas and expectations about fear, justice and security have to be weighed against each other, and this is also relevant for Sierra Leone, as we entreat the proposed Commission of Inquiry. If there was limited enthusiasm for the TRC it may in part be a result of fears that people have about delving into the past and a sense of pessimism about politics in general. In relation to security, people were clearly concerned that the TRC might re-ignite issues from the conflict by causing more damage than good, creating greater tension, or start people fighting again. However, the most widely expressed concern was that it would be a waste of money and threat to security in the midst of the Special Court for Sierra Leone.
Let’s look at an example of a contradiction generated by Special Court for Sierra Leon: The law that guides the Special Court deals with crimes against humanity and prosecute those who bear the greatest responsibility. This could also include crimes committed by the Government forces and RUF/Juntas, but in practise the Special Court Act says that the ‘Court is only for crimes committed at a particular period’. That way, the worst crimes committed outside that time frame were excluded. For some, the Special Court is “state’ justice” – only crimes committed by RUF/Juntas and Civil Defence Forces are dealt with by the Court so far. If this feeling is widespread, it means that the Commission of Inquiry would not lead to reconciliation, but will increase the survivors’ feelings of alienation, which in turn will jeopardise the country’s security and post conflict reconciliation efforts even more. It is unlikely that the praxis of the Commission of Inquiry will contribute to justice, although that is a possibility that would increase reconciliation. Another aspect that needs to be considered about justice is the issue of compensation. It is still a big problem that the proposed reparation by the TRC is still not paid to the victims and survivors, and that modality needs to be put in place as soon as possible. When it does, reparation to victims and survivors who suffered most could be a powerful instrument to show that this is not state’s justice.
In the case of the proposed Commission of Inquiry, the contradiction, between truth and security, can be exemplified by the survivors of those executed. Because of the pain caused by the killings, the survivors will not necessarily feel that the truth will help them. Some people will fear that the ‘Commission’ would only instigate feelings of insecurity and despondence among the survivors as a consequence of participating in the Commission as old memories will be revived in anticipation of public hearings and admissions. The issue of truth, justice and security can also be analysed individually – whose truth, whose justice, and security for whom are we talking about? What is considered truth and just by one group and what makes them feel secure may make another group in society feel insecure and their ideas about truth and justice repressed.
The whole idea about truth leading to reconciliation can be doubted. The same can be said about justice. The problems with emphasising truth and justice are much deeper than the practical problems faced by the Special Court for Sierra Leone and the TRC. For many others, some form of justice is an absolutely necessary part of reconciliation. But there are many forms of justice - the main differentiation being between restorative and criminal justice. Criminal justice is what is being promoted by the Special Court for Sierra Leone. The ‘Gacaca Courts’ in Rwanda had components of both criminal and restorative justice. In restorative justice, the focus is not so much on punishment, but on restoring the relationship between the parties to a conflict. The case of Rwanda is especially intriguing because so many people were affected, either as victims or perpetrators. It is impossible to handle all the killers within the ordinary legal system, so Rwanda has tried to introduce a modern version of the traditional Gacaca trials which involved the whole community. However, it is expedient to note that, the ‘Gacaca Court’ proceedings had to face a number of fierce criticisms, which I do not intend to contemplate on in my submission.
Common sense suggests that, the more public knowledge there is about such serious crimes as human rights violations, the more likely they are to be brought to justice. But a comparison of two of the most significant attempts to grapple with past state crimes – in Chile and Argentina – suggests that sometimes truth can stand in the way of justice. After the collapse of the Argentine military dictatorship in 1982, the incoming democratic government carried out high-level trials for human rights violations. ‘’Nunca Más’’ (Never again) was the phrase of the moment as the world watched a modest prosecutor successfully lead the case against the top leaders of the Argentine military regime. Several years later, in 1990, a transition to democracy in neighbouring Chile failed to produce a similar result. Instead of high-level trials, there was negotiation and compromise between the military and democratic leaders. And instead of the military leadership in prison, Pinochet continued in power as head of the armed forces and later as senator-for-life. This outcome – trials at the end of the military dictatorship in Argentina but not in Chile – is puzzling because the depth and breadth of the publicly available information the time of the transition about the human rights violations committed by the state was greater in Chile than in Argentina. Chile had more truth but less justice.
The proposed Sierra Leone Commission of Inquiry
While, others may seem very excited to usher the government’s commitment to create a Commission of Inquiry, and may conceivably represent a post conflict reconciliation efforts, however, it has the overwhelming feature of belatedness. Despite the authority and structures with which the ‘Commission’ seeks to operate in seeking the truth about the executions, we would only be told very little that we did not already know from other human rights reporting in the past. Whatever the Commission’s ability to investigate the executions, this is will not be so much new as consolidated information.
The belatedness of the ‘Commission’ is all the more dismaying in light of the tendentious and yet to be badly argued conclusion to be offered by the Commission of Inquiry. Attempting to finesse the controversial issue of the executions by arguing that there is insufficient evidence about the executions in the TRC report, the Commission will find itself caught in various forms of egregious logical self-contradiction. This was also the case of the TRC, which had been accused of the deliberate omissions of relevant evidence and reports, and did not pursue important lines testimonies-particularly of widely reported mass executions. Thus, it must be re-emphasised that it matters not whether we say that the TRC findings were oversight of the ‘executions’ or is rather, as many would argue an effort to promote reconciliation as a means of consolidating peace. The work that has gone into the TRC report has been exhaustive and it is important to recognise that it builds on the input and expertise provided by the many parties and people of Sierra Leone who have been involved in shaping its contents, including civil societies, children, youth, disabled, victims, survivors, indeed women and men from all background. I, myself, helped to mobilise children from across Sierra Leone and worked together with the Government and UNICEF to facilitate the participation of children in the work of the TRC. I also helped in the production of a Child Friendly Version of the TRC Report, so that children would be able to read and understand the report, and others outside Sierra Leone might better comprehend what the children of Sierra Leone experienced during the war.
Another reason for caution is that maybe telling their story to the Commission of Inquiry is not what the survivors want most. It is often said in connection with mass atrocities that what the victims and survivors want most of all is to know the truth, and in western thinking, especially in psychology, it is considered healthy to talk about a painful past. But, one should be careful before forcing this truth-telling on everyone. It is possible that some people will prefer to try to forget a painful past because it hurts too much to talk about it. Confessions and truth-telling are part of the Commission of Inquiry, and a problematic issue here is the consequence of the Commission: will it report be considered for implementation, and will this seek justice? For some, telling the truth means that justice will not be carried out, and for some of the survivors, it sounds as if they would rather prefer the TRC than establishing another Commission of Inquiry.
Yet, many people hope the Commission of Injury will bring them the truth about what happened during the executions. Some want to know what happened to their family, and the government want to establish the fact of those who participated in the executions. But, my findings show, that some of the people doubt that the truth will be told, because the people did not see much from their hiding places, and they don’t trust that the guilty will be denounced. Fear, mistrust and witness intimidation will make it very unlikely that the Commission of Inquiry will bring the truth about what happened in 1999.
Again, when it comes to choosing between truth or justice, there are many opinions about what is best for the victims and survivors: Some people would argue that a Commission of Inquiry will not give them a chance to tell their story, because everything they say will be questioned, and they have to go through cross-examinations. This leaves the survivors wounded and re-traumatised, hence some people would prefer the TRC, which had already given victims and survivors the chance to tell their story in a much more decent way, which acknowledges their pain.
Some of the people I spoke to consider the Commission of Inquiry to be too ambitious and at any rate, commissions, especially of inquiry, rarely enable reconciliation and justice, particularly when the crimes in question are among the most serious and imaginable. The national political view on the Commission, at the individual level is both positive and negative. The problem already generated by the Commission of Inquiry, is the concern about more practical aspects of inquiry: some feared that the Commission will be biased or inquire inconsistently between people they know and other people. And I find it striking that the main –opposition party (SLPP) feared that the APC led government appointed Commission will not be able to be impartial. Opinions about the Commission of inquiry are many, even though the Commission is yet to be instituted. It is too early to evaluate the outcome of Commission, but my findings contradict the first optimism about seeking the truth. I noted that a ‘wait and see’ attitude is widespread, and fear that this will lead to mistrust and frustration.
The Potential Result of the Commission of Inquiry
What is also apparent is that, while in the political circle there is a large degree of agreement on what the aims of the Commission should be, however, there are also some important dichotomies as to what should be the result of getting to the truth. This is most obvious in terms of whether or not the key aim of a commission of inquiry should lead to the punishment of people who had committed criminal offences, and this is unlikely to be the case.
If the TRC’s report is right that the main reason for the conflict was political in nature, then the Commission of Inquiry and emphasis on truth will not help, no matter if it has the backing of the state. This criticism is being sustained by the Commission, as long as only non-government officials who were involved in the executions are accused and not everyone who participated. If this is to change and other members of the public who felt aggrieved by previous crimes were to influence the establishment of other commissions of inquiry, maybe it would serve to reduce this criticism, but then, this will be another breeding ground for commotion. Another thing that could reduce criticism is, if government commits itself to the implementation of the outcome of the inquiry. Some critics would even argue that the financial support and commitment for such a Commission is taken away resources from traditional development agenda. There is also concern that the Commission of Inquiry report will not be implemented, and some fear that a failure to implement the outcome of the Commission will lead to people seeing the Commission as a hidden political agenda.
While it is correct that a culture of impunity is a root cause of conflict, then the courts have an important role to play, and the Special Court for Sierra Leone can be seen as a better option, although far from perfect, invention to speed up the process of handing down justice to the perpetrators and free the people who are innocent. If the government is serious about ending impunity and bring the whole truth to light, then why not request the UN for a review of the mandate of the Special Court or create an alternative local court to investigate and punish those deemed responsible for the ‘executions’ and other hideous crimes, left out by the Special Court?
But whether you see Commission of Inquiry as a good solution for truth seeking and transitional justice depends on what degree one considers judicial and non-judicial process the best solution to counter this culture of impunity. People who prefer the reconciliation variant of transitional justice might consider the Commission of Inquiry, after the TRC too problematic. On the other hand, people who think restorative justice is the best solution might think that the Commission of Inquiry will not do enough towards restoration, and that much more needs to be done in terms of reconciliation, since it is not the fear of punishment, but the realisation that what one did was wrong, that will prevent future violence. Among criminologists, it is believed that punishment seldom work as a deterrent, especially not against violent crime. Punishment by the state does not mean the convicted feel they did something wrong as long as they do not recognise it as a legitimate punishment. For people to change, they need to feel ashamed of what they did.
I also find another paradox when I look at the characteristics of Commission of Inquiry, the contradiction between the level of society and the level of the individual. The two are of course linked – it is difficult to imagine a reconciled society were the individuals are not involved. But what brings peace at the level of society (understood as no return to mass violence, truth telling and official acknowledgement of past wrongs) does not necessarily bring reconciliation between individuals. A national (society) focus on reconciliation that expects people to move forward and not pay too much attention to the past can worsen the relationship between individuals. If the perpetrators confess and ask for forgiveness, which was part of the TRC, then the survivors are from a national level encouraged to grant the forgiveness and move on with their lives. But, because the Commission of Inquiry might give the survivors new knowledge about the past, or open old wounds, this forgiveness and reconciliation can seem further away than ever for the individual.
A sincere apology at the individual level can be a very powerful gesture, as done by the TRC, because an apology acknowledges that something wrong was done, takes responsibility for the wrong without finding excuses, and indicates that the harm will not be repeated. If the offender shows remorse, there is a chance that the victim and survivor would accept the apology and grant forgiveness, but the victim and survivor also have the power to not accept the apology because what was done is considered unforgivable by this victim or survivor, or because the apology or remorse is not considered sincere. Although it does happen that somebody makes an apology on behalf of a group, and that apology is accepted by most members of the other group, I think that apologies and forgiveness are mainly individual. A feeling of forgiveness is not something that can be imposed, and there is no guarantee that remorse and apologies are sincere. In the proposed Commission of Inquiry, for example, if many of the confessions are not making apologies – the perpetrators make excuses for their crimes, did not show any sign of remorse, and talked in an aggressive way which will not be received very well by the public. The survivors or victims, who may have expected some formal acknowledgement of wrong doings and apologies now they had no apologies, will seemed suppressed that apologies were not offered, which in some cases will make them even more traumatised and frustrated by the experience. A seminal case here is the British (Chilcot inquiry into the Iraq War) which invited former Prime Minister Tony Blair to answer to questions for the war in Iraq. At the hearings, some members of the British Public felt that Mr. Blair’s confession was an insult to the survivors, as they complained of the lack of remorse on the side of Mr. Blair. Because of the personal nature of remorse, it is impossible to know if the confessions were accompanied with regret.
The frustration could be a result of the survivors own trauma, but it clearly reveals the problems related to expectations of apologies and forgiveness at the level of society. If the perpetrators don’t feel any remorse or don’t manage to communicate it to the survivors, then the Commission of Inquiry expectations of confessions and truth may turn out to be counter-productive and increase the level of distrust, and this will impedes the country’s post conflict reconciliations efforts. If the Commission were to be instituted, I think such Commission of inquiry should take place in a bipartisan democratic setting in order to be successful, but government’s way of governing has recently been criticised in the wake of the recent political clashes, and the opposition party accused the present government of despotism and intimidation. It is this government that will be implementing the Commission of Inquiry and has ignored efforts made by both the TRC and the Special Court. This also illustrates how reconciliation, truth, justice and security are political questions that reflect the political reality. At the moment, that reality at the national level makes reconciliation between individuals even more difficult. This contradiction between the individual and society can of course also be the other way around – that the TRC in some parts of the country or in individual cases bring reconciliation, but without any national impact.
I have heard some people say -the government move to launch another Commission of Inquiry would just be termed as a contamination to the already instituted efforts of the TRC. Some people have already accused the Sierra Leone government of mounting nothing more than a political expedition, to disturb peace, to attempt to criminalise some of our politicians, on both sides of the political divide, and destabilise our country. Is this the case?
Some even fear, however, that this patently flawed proposal for a Commission of Inquiry will only cause us to roll our eyes in dismay, if not in disgust. After all, any first-year law student at Fourah Bay College could have advised the government that the Commission of Inquiry is a breach of the Lome Peace Accord and undermines the work of the TRC and the Special Court. Some people have expressed concern over the frivolous and uninformed nature of this Commission. But the Commission, if is eventually established to investigate the executions - will in any case be of very little help. The Commission will not bring back the dead, heal the wounded or promise Sierra Leone a better future. Some people had expressed the view that, they do not need Inquiry Commission; some people prefer the TRC, of requesting forgiveness, pay reparation for the past and progress to build a better and more just future
I would like to think that the establishment of a Commission of Inquiry following the TRC will be characterised by a high degree of challenges and huge contradictions. This makes it impossible for a government that believe in a culture of impunity to be the main reason for the conflict and have embarked on an attempt to expose every single person that participated in the execution, to use an ordinary Commission of Inquiry. The TRC was intended, among other things, to bring truth, justice and reconciliation; but as I have noted, reconciliation is a complex process with many connotations. Justice and truth are not straightforward concepts but often contradict each other and have to be weighed against present security needs for survivors, perpetrators and bystanders. At the same time, the concepts of justice and truth are in themselves full of contradictions because different groups in society have different perceptions about what constitutes truth and justice for them. We have noted how reconciliation is influenced by the political reality, and how the national focus on reconciliation through Commission of Inquiry does not necessarily lead to truth and reconciliation. This move to launch a Commission of Inquiry, some people predict with certainty, will not help the security and peace, not even achieved the government’s agenda for change; it will only intensify the hatred, and hurt healed wounds.
People are scared in Sierra Leone, to say wrong is wrong for fear of intimidation or because the political status quo is powerful - very powerful. Well, so what? For goodness sake, Sierra Leone is our nation! We live in a democratic world of the 21st century. Some leaders were very powerful, but today they no longer exist, with all their valour, but in the end they bit the dust. I believe that that much of our country’s governance has been a racket -a game in which a handful of people are lavishly paid to mislead an exploit poor and disadvantaged people. And if we don't lower the boom on these practices -the racket will just go on.
Those who are powerful have to remember the implications of their action and inaction: what is your treatment of the poor, the hungry, the voiceless, youth, women, children? And on the basis of that, the people pass judgment during elections period. Sierra Leone now needs a future based on the recognition that, as the Universal Declaration of Human Rights puts it: "All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood."
I hope my readers and friends in the political circles, would not judge me wrong, as Desmond Tutu rightly put it thus: "I am not pro- this political party or that. I am pro-justice, pro-freedom. I am anti- injustice, anti-oppression." South Africa had a relatively peaceful transition. If reconciliation could work in South Africa, surely it can be sustained in Sierra Leone.
The Author, Messeh Kamara - born in 1986 in Sierra Leone (now based in London) - is rising star, and has established himself as one of the country's prominent young leader. He is currently on a mission in Uganda, facilitating the Africa Youth Forum, an integral part of the Africa Union Heads of States Summit. Email: email@example.com
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Newspaper in Freetown, Sierra Leone.