(JollofNews) – Do the findings of the recent Afrobarometer survey on the Gambia’s Truth and Reconciliation Commission (Afrobarometer Dispatch No. 249 by Sait Matty Jaw) affirm the fact that truth and reconciliation mechanisms are snowflake mechanisms that are incapable of delivering justice for the victims of human rights violations?

TRCs mechanisms may be seen by many African governments as the most effective problem–solving mechanisms that bring the victims, the perpetrators, and the communities together to deal with the legacy of past human rights violations, but have any of them worked? While TRC mechanism is sensitive to the needs of the population affected, it does not have the required capacity and the goodwill to properly apply the law to any set of facts, so as to make determination of the right legal outcomes. This is because TRCs are mostly run by academics or self-serving politicians who tend to focus on self-enrichment than providing justice the victims and the community deserved.

Given the lack of capacity to deal with complex legal issues, the TRC’s mechanism cannot be relied upon to deliver justice that can withstand legal scrutiny in Court; as a result, impunity is the likely consequence of the apparent much ado about nothing. Because the perpetrators are likely to escape the punishment they deserve for committing heinous against decent citizens, the victims and victims’ families judge most TRCs as a failure. Adjudication of peremptory norms must not be left in the hands of ordinary men and women who have the propensity to pursue their own political agenda or self-enrichment project. Indeed, in some instances ordinary people are better placed to act as judges of facts as illustrated in Jury trials. But the complexity of human right violations and the fact the TRC is prone to politicisation makes it unsuitable for trial of atrocities. It is given fact the politicians are likely to use the process as a device to punish political opponents; this was the case in Kenya. So, I remained unconvinced that limited guidance offered by few judicial officers would make any significant difference to the quality of the TRRC’s decisions. Serious criminal offences must be faced with effective use of the law by those who have the knowledge and skills to make unbiased decisions.

Everyone knows that adjudication and administration law is a complex business because it involves teasing out relevant facts and precisely applying those facts to internationally recognised legal principles and norms objectively. That task cannot be competently completed by conflicted Commissioners. If we accept that Lawyers and Judges spend considerable number of years of training both at academic and practical levels to acquire the necessary skills to tease out facts from fiction, and deliver sound judgements that protect societal norms and values, why then are we leaving such delicate tasks in the hands of ordinary people?

In my view, it is an abdication of the duty on the part of African governments to use ill-equipped mechanisms to deal with serious violations of human rights. The notion that affected communities heal and sail to the Island of Never Again, if we forgive those who committed serious crime is flaw thinking. Surely, the interests of communities cannot be served by allowing impunity to prevail over decency. The idiocy and greediness that seemed to have driven the perpetration of such crimes must be faced with the effective application of the law, not a comprised application of the law.

The very fact there is no empirical evidence to support the point that the TRCs have deterrent effects on the prevention of human rights violation suggests that they are hopeless in deterring perpetrators from striking at innocent lives. Clearly, it is self-evident that the use of the TRC did not deter the perpetration of human rights violation committed in Ivory Coast, Kenya, Liberia, Sierra Leone, and The Gambia.

There can be no doubt that diminishing public confidence in TRC’s ability to deliver justice, stems from the very fact that the Commissions are hardly independent or impartial in their proceedings. For any Commission to maintain its legitimacy, it is important that is seen as independent and impartial. The words of a prominent international jurist, Antonio Cassese advances this proposition: the Tribunal’s/(in this case the Commission’s) legitimacy would be grounded on its own proper functioning as an impartial, independent, and absolutely fair international court (Commission), which dispenses justice in an unimpeachable manner. In order words, the victims, victim’s families, perpetrators and anyone who cares about justice would like to see that the process is independent and impartial.
Without instilling those standards into TRC’s proceedings would make its proceedings a punch and Judy show that can never achieve what it is set out to achieve. On the contrary, the community is more likely to be divided, potentially leading to mob justice, as the people may become disfranchised with the concept of justice. Despite the ineffectiveness of truth commissions, African governments continue to use the mechanism in dealing with serious human rights violation. Perhaps, the only plausible reason for their insistence in using the mechanism is because it justifies the merry go round of the ‘begging bowl’ in-betweens donors. When will we reawaken our spirit of self-service? When will we restore the dignity in our capacity to do things for ourselves?

In my opinion, the ineffectiveness of the truth and reconciliation mechanism to deliver justice entirely justifies the establishment of International Military Tribunal at Nuremberg, International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda, and Special Tribunal of Lebanon through the doctrine of collective responsibility to protect societal norms.

Therefore, African governments must attach outmost importance to the effective application of law on mass human rights violations, so as hold perpetrators accountable to the society. For the interest of justice African governments must use properly constituted courts that are equipped with fair-minded jurists, and fearless advocates who have the skills and the prerequisite knowledge of the atrocities perpetrated by officers of tyrannical dictatorships. Governments must provide the necessary conditions that promote attainment of justice rather than paying lip service to administration of justice. Indeed, if we continue to appoint conflicted officers and self-serving politicians as adjudicators of serious crimes, victims are unlikely to be provided with the justice they deserved. In this regard governments would be more culpable than the perpetrators of the crimes. TRC mechanism is ineffective in delivering justice.