allAfrica.com: Africa: Transitional Justice in Sexual And Gender-Based Violence (Page 1 of 5)

It is now fashionable in academic and activist circles to speak of transitional justice in normative, inflexible terms that suggest a utopian certainty. Nothing could be further from the truth. At the outset, we need to understand that transitional justice concepts are experimental - good experiments to be sure - but that they do not offer us tested panacea because they are essentially works in progress.

This is not meant to diminish the utility of the concepts or to throw cold water on them as a beachhead for recovering societies with a legacy of traumatic conflict. Rather, it is to recognize their limitation so that we do not stampede to the temple only to find it empty of the goddess of truth. What is more useful for us to do is to imagine transitional notions as one incomplete vehicle through which we can understand and start the recovery of a tormented society. If we keep this perspective, then we are more likely to achieve a more realistic result.

In the last two decades, the concept of transitional justice has come to represent the midwife for a democratic, rule of law state [1]. The script for the construction of such a phase is now regarded as an indispensable building block for sound constitutionalism, peace-building, and national reconciliation in post-conflict societies or societies emerging out of abusive, authoritarian, and fractured periods [2]. In fact, policy-makers and statesmen now increasingly realize that a human rights state that internalizes human rights norms cannot be created unless the political society concretely addresses the grievances of the past. There is no future without a past, and the future is largely a result of the past. Unless we construct a future based on the lessons of the past, we are bound to repeat our own mistakes and retard the development of our society.

The term transitional justice captures two critical notions. First, it acknowledges the temporary measures that must be taken to build confidence in the construction of the post-despotic society. Secondly, by its own definition, transitional justice rejects a winner-take-all approach as a beachhead to the future. In other words, transitional justice calls for deep concessions on either side of the divide. No one party or faction can be fully satisfied. Unyielding, none concessionary demands can only foil the truce that is essential for national reconstruction. But equally important is the realization that transitional justice rejects impunity for the most hideous offenders. To shield egregious perpetrators would only encourage a culture of unaccountability for past abuses. Hence a balance must be struck between justice for the victims and retribution against offenders [3].

The vast majority of states lack the requisite political will to effect transformative transitions. That is why most political transitions are either still born or aborted affairs. For Africa, this calls for soul-searching at all levels of society - within the political class, among the intelligentsia, in civil society, and the general public. In other words, Africans must ask themselves: Is transitional justice a necessity for us if we are to create a democratic polity? If so, what vehicles should we construct to effect transitional justice, and what mandate shall we give such vehicles? But even as we ask these questions, we must remain mindful about the cost of abandoning transitional justice measures. The reason for this is simple: We cannot exorcise the ghosts of the past without confronting them. The past will always be with us.

Even if we accept as a basic premise - which we do - that transitional justice processes and institutions are desirable and indispensable, we would be derelict not to interrogate the internal contradictions of the project. I say so because the human rights project, which encompasses transitional justice, is an incomplete doctrine that is afflicted by gaping holes [4]. One of the blind spots of the human rights movement was for a long time women's rights. There is no doubt that international law - which includes human rights - as a discipline has historically been inattentive to women's rights. In fact, Hilary Charlesworth and Christine Chinkin, leading feminist scholars, have accused international law of its male, patriarchal construction [5]. For a long time, at least until the 1995 Beijing UN Conference on Women, women's rights were a backwater in human rights, in spite of the existence of the Convention on the Elimination of Discrimination against Women. Only in the last decade have we seen serious attempts to remove women rights from the ghetto of the rights discourse.

This is our challenge at this conference, and in the human rights movement, particularly in the context of transitional justice in Africa. How do we demarginalize women's rights questions in the construction of transitional justice vehicles? In particular, how do civil society, academics, states, funding organizations, and intergovernmental organizations address - in serious ways - the problems of sexual and gender violence in transitional justice contexts? We know from the historical record that sexual and gender violence is arguably the most predominant abomination in civil conflicts and wars. Yet we also know that this egregious form of violence is either never reported, or rarely attracts the attention of the media. Even more distressing is the fact that gender and sexual violence is almost never calibrated in transitional justice processes, and is usually an afterthought when it is. This has been true in many of the transitional justice processes that have been put in place in the last two decades, although that is beginning to change.

In Africa, as indeed in other parts of the world, women are the pillar on which the fabric of society is built in the home and outside of it. In a very real sense, both the public and private squares are made possible by women, although in the former their invisibility is obscene. This invisibility pertains to the official public square in terms of public power defined as official positions within the state, civil society, and the market. Paradoxically, the invisibility extends to women victims and survivors of sexual and gender-based violence in the public square during civil conflicts and wars. The challenge for Africans is to develop both conceptual tools and strategies - at the political and intellectual levels - to smash the walls of invisibility and exclusion so that sexual and gender-based violence can be exposed to the sunlight of the public domain. Without this first critical step transitional justice mechanisms will continue to exclude sexual and gender-based violence.

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