Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (6 page)

Unfortunately, the hearings concluded with a rather unsatisfactory performance by
President Tejan Kabbah. In contrast with all of the other leaders of various factions in the conflict,
Kabbah refused to acknowledge any responsibility or to apologize to the people of Sierra Leone for his own role in the conflict.

 

H.E. Dr. Tejan Kabbah :	Now, I think what you are asking me to do is this: to apologise to people for wrong doing . . . Of what use is that and I have mentioned this again in that record; I don't know, maybe it's a bit long you haven't read it all; but I said this, that I went round this country telling people, please I beg you, wrongs that have been done one way or the other, accept what it is, just forget about the past; let's live together; let's work together and rebuild our country . . . Now I just cannot understand what more I'm expected to do.
Leader of evidence:	Your Excellency, the Leader of APC this morning, before the Commission, apologised for all the mistakes he had done. He had done that on the 14th, he did that again and he is using the platform of the Commission in fulfillment of all the efforts of your Excellency in this regard. Would your Excellency want to send a direct message to the people of Sierra Leone on reconciling the differences that did exist, and possibly do exist. That was my question Sir.
H.E. Dr. Tejan Kabbah:	If you want to say . . . I will give you ok, I want peace, I want reconciliation, I would repeat it as many times as ever as you want. Please all Sierra Leoneans, all of us, let's work together, let's forget about the past; those that have to face the court, let them face the fact that they have to face the court and go on if they have justification, it depends, let them go ahead and do it. Now, those who have done something wrong to others, please go and apologise to them; and if they don't listen to you, go to the Vice President, come to me, we will go to your community get things organised. [21]

 

It was an unfortunate ending to the process, and a bad omen for the follow‐up to the work of the Commission.

In parallel with these quite public activities, the Commission also undertook a more discreet program of research and investigation. Here
it was terribly handicapped by poor resources. This part of the Commission's work is a story of missed opportunities, although the existing staff performed honourably and produced results of good quality.

The final phase of the Commission's work, the drafting of the report, took more than one year. Indeed, the Commission spent considerably more time writing up its results than it did in the operational phase of its mandate. The delays were partly the result of staffing shortages, and also the consequence of an overly ambitious vision of the report. It was decided that the report should be several volumes in length, perhaps so as to match that of the South African Commission. A shorter and more succinct report would have been far more accessible to Sierra Leoneans, and yet could have covered all of the essentials.

Under the
TRC Act
, the Commission was charged with making findings and recommendations. According to section 17, “[t]he Government shall faithfully and timeously implement the recommendations of the report that are directed to state bodies and encourage or facilitate the implementation of any recommendations that may be directed to others.” The findings and recommendations are, in effect, a summary of much of the report. Their implementation will be one of the tests of the effectiveness of the Commission.

It must be said at the outset that the causes of the conflict were not at all evident, and that there are many conflicting versions and accounts. In this respect, the Sierra Leone TRC differs fundamentally
from the South African experience, where the root evil –
apartheid
– was never really in question. A condemnation of the racist regime and a dedication to political transition were the underpinnings of the South African TRC's work. There was nothing comparable in Sierra Leone. The
Lomé Peace Agreement
itself, which brought the civil war to a close and was at the origin of the call for a truth commission, was a cease‐fire between warring factions, rather than a decisive victory by one side over the other, and a triumph for any particular vision or ideology. One of the most significant, but also potentially controversial, contributions of the Truth Commission is its analysis of the background of the conflict, and its attempt to identify causes.

Many accounts of the Sierra Leone conflict have laid most of the blame on external factors, for example charging Libyan leader Ghaddafi with fomenting the conflict and Liberian
leader Charles
Taylor with sustaining it. While it did not totally discount these factors,
[22]
the
Commission focused on internal factors, such as bad governance and corruption, and the betrayal of Sierra Leone by its political, financial and intellectual leaders. As the Report noted,

 

. . . the civil war in Sierra Leone was largely the result of dysfunctional governance and institutional processes in the country. Political actors failed to sustain the state's capacity to meet such critical challenges as the security, livelihood and participation in decision making of the overwhelming majority of Sierra Leoneans. The Commission shares the view that the failure of governance provided a context conducive for the interplay of poverty, marginalisation, greed and grievance that caused and sustained the civil war.
[23]

 

The conclusion was a depressing one, because the Commission noted that many of these root causes remain unchanged in post‐conflict Sierra Leone. Moreover, there is little or no commitment by those who govern the country to any meaningful attempt to address these factors. At the same time, it is a conclusion that is pregnant with optimism, for it provides Sierra Leoneans with a framework by which they can change their own destiny. An analysis focusing on external causes would have both exonerated Sierra Leoneans from responsibility and at the same time left them helpless to change things.

The atrocities committed
by the RUF are well‐known outside Sierra Leone, in contrast with those committed by the pro‐government militias and similar forces. This is reflected within Sierra Leone in a tendency by some to overlook crimes committed by the anti‐RUF forces, who, it is said, were fighting a just cause. The Commission rejected this “just war” approach to the conflict. Even if a right and wrong side in the conflict could be identified – something the Commission did not even consider – the TRC's mandate was to address violations and abuses, whatever the identity of the perpetrator. Anecdotal evidence and intuition
that the RUF was responsible for the majority of the violations was confirmed in analysis of the Commission's data base. But the atrocities committed by the pro‐government
Civil Defense Forces (CDF), and notably by one sub‐group of them known as the
kamajors
, were on a par with the worst the
RUF had to offer.

A great deal of attention has also been paid to the role of mineral resources, and especially diamonds, which are found in abundance in Sierra Leone.
[24]
The Commission found that the rebels had not been focused on control of the diamondiferous regions of the country, at least in the early years of the conflict.
[25]
In other words, although low‐technology diamond mining is one of the important features of Sierra Leone's economy, diamond smuggling cannot be viewed as a principal cause of the conflict. These findings in effect throw the ball back into the
court of Sierra Leone's governing elite. Its historic greed and indifference to the lot of the ordinary people would appear to be the underlying theme in the conflict. This was certainly the source of the discontent that provoked the original rebel incursions, and generated much initial sympathy and support for
the RUF. But in the end, the RUF had no greater vision of the future of the country than those it sought to overthrow.

In its findings, the Commission considered the amnesty provision that was included in the
Lomé Agreement
. Commissioners were well aware of the prevailing view in international law whereby such blanket amnesties are unacceptable.
[26]
Of course, the view was also reflected in the statement appended to the
Lomé Agreement
by the Special Representative of the Secretary‐General. A judgment of the Special Court for Sierra Leone, issued in March 2004, declared the amnesty to be in breach of international law.
[27]
But the Commission felt it could not second‐guess the negotiators at Lomé who had considered that amnesty and pardon were the only way the fighting could be brought to an end. The Commission's findings are set out in three paragraphs of the Report:

 

It is not clear why unconditional amnesty was accepted by the United Nations in November 1996, only to be condemned as unacceptable in July 1999. This inconsistency in United Nations practice seems to underscore the complexity of the problems at hand. The Truth and Reconciliation Commission is unable to condemn the resort to amnesty by those who negotiated the Lomé Peace Agreement. The explanations given by the Government negotiators, including in their testimonies before the Truth and Reconciliation Commission, are compelling in this respect. In all good faith, they believed that the RUF would not agree to end hostilities if the Agreement were not accompanied by a form of pardon or amnesty.

Accordingly, those who argue that peace cannot be bartered in exchange for justice, under any circumstances, must be prepared to justify the likely prolongation of an armed conflict. Amnesties may be undesirable in many cases. Indeed there are examples of abusive amnesties proclaimed by dictators in the dying days of tyrannical regimes. The Commission also recognises the principle that it is generally desirable to prosecute perpetrators of serious human rights abuses, particularly when they rise to the level of gravity of crimes against humanity. However amnesties should not be excluded entirely from the mechanisms available to those attempting to negotiate a cessation of hostilities after periods of brutal armed conflict. Disallowing amnesty in all cases is to deny the on‐ground reality of violent conflict and the urgent need to bring such strife and suffering to an end.

The Commission is unable to declare that it considers amnesty too high a price to pay for the delivery of peace to Sierra Leone, under the circumstances that prevailed in July 1999. It is true that the Lomé Agreement did not immediately return the country to peacetime. Yet it provided the framework for a process that
pacified the combatants and, five years later, has returned Sierra Leoneans to a context in which they need not fear daily violence and atrocity.
[28]

 

The Commission's views on this subject may contribute to the ongoing debate on the appropriate attitude that transitional justice should take towards the issue of amnesty. The report also expressed concern about the decision by
President Kabbah to withdraw the amnesty, at least partially, when he called for prosecutions by a United Nations‐sponsored tribunal. This amounted to reneging on the agreement he had made with the
RUF at Lomé. While Kabbah might himself argue that the RUF had also reneged on
Lomé
, and that this justified his decision, the whole business had the consequence of removing amnesty from the tool‐box of future peace negotiators. Will it ever again be possible to convince armed insurgents to lay down their arms in return for amnesty, given what is now a genuine possibility that it will not be respected over time? For those who are uncompromising in their condemnation of amnesties, this is perhaps a welcome development. The Commission seemed to feel, however, that in certain circumstances an amnesty may well be an appropriate compromise to bring an end to conflict. However, its report did not attempt to unpack the relationship between amnesty, justice and reconciliation. In other words, the Commission did not take a position on how the amnesty might have contributed to reconciliation, and whether the alternative – an insistence upon criminal prosecution – would have hindered a
healing process.

Many of the TRC's recommendations were without monetary implications. If the government is sincere in its commitment to implement the Commission's recommendations, in accordance with
the
Act
, it cannot avoid these proposals. For example, in accordance with its finding that capital punishment was used essentially as a political tool by the various post‐colonial regimes in order to suppress and terrorize their opponents,
[29]
the Commission called for the immediate abolition of the death penalty. It also called upon the president to commute all outstanding death sentences. The latter measure does not even require legislative approval, and can be accomplished immediately by presidential decree. In the same vein, the Commission called for all persons being illegally detained to be released without delay. A significant number – perhaps twenty or more – of RUF sympathisers have been in Freetown's Pademba Road prison since May 2000, and have been denied access both to legal counsel and their families. The Commission also demanded the repeal of legislation concerning sedition and defamatory libel. The laws are holdovers from the repressive colonial period, and have no place in a contemporary democratic society.

Although the TRC had no resources of its own to distribute to victims, it was authorised to make recommendations regarding the Special Fund for War Victims, whose establishment was provided for in Article XXIV of the
Lomé Peace Agreement
. More generally, the Commission was empowered to make recommendations with respect to the needs of victims. It has called for a robust program of compensation of victims, although question marks remain about the funding for this. Recommendations focused on services such as healthcare, education and access to microcredit rather than cash disbursements. Sierra Leone's economy remains in dismal straits, and any program with serious financial implications necessarily involves the support of the international donor community.