Transitional justice policy in the Arab region? Lessons from the African Union

Transitional justice policy development usually unfolds once a political “transition” has taken place. However, lessons from the African Union Transitional Justice Policy (AUTJP) suggest that it can start much earlier. The policy development process itself can shape a transitional justice discourse and practice that is better tailored to regional contexts and driven by the needs of victims. In the context of the African Union (AU), policy development has helped promote the principles of justice, accountability, reconciliation, healing, and sustainable peace across the continent.

Can policy play a role in initiating and supporting transitional justice processes in the Arab world? How do we initiate policy development when countries are in the midst of conflict, or when they lack credible institutions and political will? These multifaceted questions were discussed during a panel discussion on transitional justice policy in the Middle East and North Africa (MENA) region at the Brookings Doha Center workshop, “Innovation in Transitional Justice: Experiences from the Arab Region”, held in March 2020. While preparing for the workshop, I reflected on my experiences as a transitional justice practitioner working in varied African contexts. I drew on lessons from the continent’s evolving transitional justice discourse to determine whether there are potential parallels to the MENA region.

The AUTJP is a guideline for member states to develop their own context-specific policies, strategies, and programs toward democratic and socio-economic transformation, sustainable peace, reconciliation, and justice. Formed over a 10 year period of research, community engagement, network building, and strategic advocacy, the policy development process has itself succeeded in improving public perceptions of transitional justice, connecting regional stakeholders, and in establishing the foundation for future nationally-led justice processes. Such an initiative could find similar success in the MENA region.

Connecting research, policy, and practice

Although mainstream transitional justice is premised on the four pillars of justice, truth, reparations, and guarantees of non-repetition, various African case studies make clear that these pillars alone do not adequately address the diverse experiences and consequences of conflict throughout the continent.  Rather than a “one size fits all” approach imported from the Global North, the African context needed a process that prioritized and was informed by local conceptions of justice, reconciliation, peace, and healing. Thus, the AUTJP identified 11 elements that are integral to conceptualizing and implementing transitional justice in various national contexts in Africa.

For policy to translate into actionable practice, though, it needs to shift from theory to reality in terms of design and implementation. Research is key to bridging this divide. For the AUTJP, country conflict reports have provided data, analysis, and information to policy makers, practitioners, and state actors. The information derived from this research is important as it has foregrounded the needs and lived experiences of the most vulnerable during conflict, thus ensuring that their concerns are addressed.

Establishing a community of practice

Transitional justice is an inherently political process, relying on the will and support of the state to give it life. It is also often accused of being an elitist space. At the start of developing the AUTJP, member states were convinced that transitional justice was a Western conception aimed at stripping power from African leadership. Thus, they offered little support to the initiative. Victims and communities also had narrow conceptions of transitional justice’s key components — especially those of justice, reparations, and peace — which resulted in unrealistic expectations and a lack of community support for nationally-led initiatives. An example of the above that we have encountered in Mali, Gambia, and South Sudan is the understanding that reparations equate to monetary compensation only. While states do bear the primary responsibility for providing reparations, we must remember that we are dealing with governments that have limited budgets to offer monetary compensation and that would be unable to meet the demands or needs of victims.

The AU and civil society partnered on a number of activities that included workshops and conferences. These platforms created opportunities to build the capacity of state and civil society stakeholders to pursue the goals of transitional justice and underscore its usefulness in the African context. Efforts were made by the AU’s Department of Political Affairs to ensure that specific activities were reserved for the participation of marginalized and vulnerable groups such as women and girls, the elderly, people with disabilities, youth and the diaspora.

Ultimately, the AUTJP process succeeded in consolidating African expertise, actors, and resources. It also succeeded in forming a continental community of practice that has strengthened the legitimacy of the African approach to transitional justice. The discussions around potential policies facilitated direct engagement with member states and emphasized the need for their involvement in the development process itself. This in turn helped to develop champions of justice in various countries that now promote the policy. In this way, the negative stereotypes surrounding transitional justice in Africa have been tempered.

 The absence of transitions: a lingering challenge

During the workshop, two key questions repeatedly emerged. Firstly, did transitions really take place in countries like Egypt, Sudan, Algeria, and Libya? Secondly, can transitional justice work for a region as complex as the MENA, where transitions are at best partial? These questions do not have a simple answer. The work of the AUTJP, though, makes clear that regional actors need the space to start addressing these questions. Indeed, they should be able to explore ideas and the boundaries of mainstream transitional justice, not to mention, its perceived relevance in the Arab world.

Regardless of whether conflicts have ended or political will for societal transformation still exists, a policy process opens opportunities to establish a foundation for transitional justice.  There may not be a “right time” to start policy development; there was not such an ideal time for the AUTJP.  We knew, however, that there was never going to be a wrong time — and if we did not try, we would never know.