By Moses Zacks Nkwazi
(LLB Candidate, Copperbelt University )
November 5, 2025
ABSTRACT
Transitional
justice encompasses a spectrum of judicial and non-judicial measures designed
to address legacies of conflict, repression, and systemic human rights abuses.
It aims to achieve accountability, deliver justice, and promote reconciliation.
In Africa, transitional justice mechanisms ranging from truth commissions and
traditional courts to hybrid tribunals have emerged as significant tools within
the broader framework of Alternative Dispute Resolution (ADR). This article
critically analyses the African experience of transitional justice, evaluating
its successes and shortcomings through case studies in South Africa, Rwanda,
Uganda, Sierra Leone, and Morocco. It argues that while African transitional
justice reflects a unique fusion of indigenous restorative traditions and
formal justice systems, challenges such as political interference, limited
resources, and tension between reconciliation and accountability continue to
impede its full realization. The study concludes that sustainable peace and justice
in post-conflict Africa depend on context-sensitive mechanisms that harmonize
traditional and international approaches to dispute resolution.
Keywords:
Transitional Justice, Alternative Dispute Resolution, Reconciliation, Africa,
Human Rights, Post-Conflict Justice
1.
INTRODUCTION
Transitional
justice refers to the range of judicial and non-judicial processes employed by
societies to address past human rights violations and to foster reconciliation,
accountability, and sustainable peace. According to the United Nations Human
Rights Office of the High Commissioner, transitional justice “covers the
full range of processes and mechanisms associated with a society’s attempt to
come to terms with a legacy of large-scale post-conflict repression, violations,
and abuses, in order to ensure accountability, serve justice, and achieve
reconciliation.”[1]
This
concept has become central to the post-conflict reconstruction agenda in
Africa. As an emerging aspect of Alternative Dispute Resolution (ADR), transitional
justice departs from purely retributive models by prioritizing truth-telling,
healing, and restorative dialogue. This article critically examines the African
experience of transitional justice as a form of ADR, analysing its key
mechanisms, challenges, and prospects within varied socio-political contexts.
Yet
this approach is fraught with contradictions. Truth Commissions are not
voluntary mediations; they are state-led inquiries. Hybrid courts and the ICC
operate under international authority, not local consent. This tension between
voluntarism and power sits at the heart of Africa’s transitional justice story.
How can a process be truly restorative if one side holds all the authority?
2.
The Concept of Transitional Justice in Africa
Transitional
justice in Africa is anchored on five key pillars: truth-telling,
accountability, reparations, institutional reform, and reconciliation.[2]
Functioning as an extension of ADR, it emphasizes restorative rather than
punitive outcomes, using dialogue, participation, and community engagement to
rebuild trust among divided populations. African states have progressively
localized these principles, merging formal and traditional approaches to suit
indigenous notions of justice and peace.[3]
3.
The African Context and Historical Foundations
Africa’s
colonial and postcolonial history marked by apartheid, military rule, and civil
conflicts has produced a complex legacy of human rights violations.[4] To
confront these injustices, countries such as South Africa, Rwanda, Sierra
Leone, Uganda, and Morocco have adopted distinctive transitional justice
frameworks adapted to their contexts.
In
South Africa, the Truth and Reconciliation Commission (TRC), established by the
Promotion of National Unity and Reconciliation Act 34 of 1995, pursued
restorative justice through truth-telling and forgiveness.[5]
Conversely, Rwanda’s Gacaca courts represented a grassroots model of
community-based justice aimed at reconciliation following the 1994 genocide.[6]
These experiences underscore Africa’s capacity to blend indigenous ADR
traditions with formal transitional justice paradigms.
Yet
the challenge remains, can a restorative model satisfy victims who seek
retribution, or nations demanding transformation? The following case studies
reveal both the promise and the paradoxes of Africa’s experience.
4.
MECHANISMS OF TRANSITIONAL JUSTICE IN AFRICA
4.1
Truth Commissions
Truth
commissions herein after referred to as TRC are a hallmark of African
transitional justice. South Africa’s TRC, established in 1995, sought to
investigate human rights abuses committed between 1960 and 1994.[7] It
provided a platform for victims to narrate their experiences and for
perpetrators to seek conditional amnesty. The TRC received over 22,000 victim
statements and processed approximately 7,000 amnesty applications, granting
around 1,500.[8]
Despite these achievements, its limitations were striking. By excluding
economic justice, it failed to confront the material legacies of apartheid land
dispossession, racial inequality, and structural poverty.[9]
For many South Africans, forgiveness without redistribution felt hollow.
Reconciliation was proclaimed, but the economic hierarchies of apartheid largely
survived. In the long run, this omission threatens the moral foundation of the
entire project, peace without justice risks becoming merely the silence of the
oppressed.
The
South African experience reveals a deeper truth about transitional justice, storytelling
and forgiveness are powerful, but without structural change, they remain
incomplete.
4.2
Traditional Justice Systems
(i) RWANDA
Traditional justice mechanisms, such
as Rwanda’s Gacaca courts, reflect Africa’s indigenous ADR ethos. Revived in
2005 to address the vast backlog of genocide cases, over 12,000 Gacaca courts
handled more than 1.2 million cases before their conclusion in 2012.[10]
They emphasized confession, community dialogue, and reintegration rather than
strict legalism.[11]
However, concerns regarding impartiality and due process persisted.[12]
However,
this innovation carried moral and legal costs. Defendants lacked legal
representation, judges were laypersons, and outcomes were inconsistent.
Rwanda’s leaders argued that these compromises were the price of national
survival. Was it a necessary evil, a pragmatic path to healing or a fatal flaw
that undermined justice itself?
The
answer is uncomfortable. Gacaca achieved reconciliation in many communities,
but it also reinforced state power and silenced dissenting narratives.[13] When
restorative justice becomes an instrument of state control, its moral
legitimacy weakens. Still, Rwanda’s experience proves that local participation
can achieve what international courts alone cannot, the rebuilding of moral
trust.
(ii) UGANDA
Uganda’s approach illustrates a dual
system combining formal justice through International Criminal Court (ICC)
indictments of Lord’s Resistance Army (LRA) leaders[14] with
the Acholi ritual of Mato Oput, a traditional reconciliation process
symbolizing forgiveness and the restoration of social harmony.[15]
This hybrid strategy demonstrated how ADR principles can coexist with
international justice mechanisms.
The
ICC’s intervention, however, disrupted this local process. Rebel leaders feared
arrest and refused to participate in peace talks, prolonging the conflict. Many
Acholi viewed international justice as distant and imposed, while Mato Oput
represented genuine community healing. This clash illustrates a deeper ADR
dilemma, when justice is exported, local ownership disappears.
The
Ugandan case forces us to confront a difficult truth that justice imposed from
above may satisfy international law, but it can alienate the very communities
it intends to heal. The challenge is not to choose between the ICC and Mato
Oput, but to weave them together into a balanced hybrid that respects both
universal rights and local wisdom.
4.3
Reparations and Restitution
Reparations
address victims’ suffering through compensation and symbolic redress. Morocco’s
Equity and Reconciliation Commission (ERC) recommended financial and social
reparations for victims of political repression during the “Years of Lead.”[16] However,
implementation across Africa has often been hindered by limited resources and
administrative inefficiencies.[17] Reparations
without reform risk becoming symbolic gestures comforting, but not
transformative.
4.4
Institutional Reform
Institutional
reform aims to prevent recurrence of abuses by restructuring state
institutions. In Sierra Leone, post-war reforms targeted the judiciary, police,
and military, supported by the United Nations and donor agencies.[18]
Yet, corruption and weak governance continue to undermine such initiatives. The
Special Court for Sierra Leone (SCSL) blended national and international law to
prosecute serious crimes from the civil war. It broke new ground by convicting
a sitting African president, Charles Taylor.
4.5
Hybrid Tribunals
Hybrid
tribunals combining domestic and international elements have also advanced transitional
justice in Africa. The Special Court for Sierra Leone (SCSL), established in
2002, successfully prosecuted senior officials responsible for atrocities
during the civil war, including former Liberian President Charles Taylor.[19]
The Court demonstrated the potential of collaborative models in enforcing
accountability while respecting national sovereignty.
Yet
its high costs and limited reach raised doubts about accessibility. Justice was
served but to a small audience. For transitional justice to function as ADR, it
must be inclusive and comprehensible to those most affected by the conflict.
5.
Challenges and Prospects
Despite
notable achievements, African transitional justice mechanisms face persistent
challenges. Political interference undermines independence, as seen in Zimbabwe
and Uganda, where governments have manipulated justice processes for political
gain.[20]
Resource constraints limit the effectiveness of truth commissions and
reparations programmes, while deep-seated ethnic and regional divisions
complicate reconciliation efforts in countries like Sudan and Nigeria.
A
key dilemma remains the balance between retributive and restorative justice.
Victims often demand prosecutions, while others prefer forgiveness and
coexistence.[21]
Traditional mechanisms emphasizing communal healing sometimes clash with
international norms requiring individual accountability. Gender exclusion and
the marginalization of women’s voices further weaken outcomes.
Nonetheless,
Africa’s experience offers valuable lessons. The TRC, Gacaca courts, ERC, and
SCSL demonstrate the promise of context-driven, participatory, and hybrid
approaches. Strengthening local ownership, ensuring gender inclusion,
mobilizing domestic resources, and promoting regional cooperation are critical
for advancing the future of transitional justice on the continent.
6.
The Hidden Dilemma of Transitional Justice
At
the heart of ADR lies voluntarism the idea that disputing parties willingly
engage in dialogue. Transitional justice, by contrast, often operates under
compulsion, commissions are state-mandated, tribunals are court-imposed, and
participation is sometimes coerced by circumstance. This shift in power
dynamics changes everything.
When
the state orders forgiveness, it risks emptying reconciliation of its moral
value. When international bodies impose justice, they may unintentionally
perpetuate colonial hierarchies of authority. Genuine peace requires
participation, not instruction. The lesson is that reconciliation cannot be
legislated, it must be lived, owned, and believed by those who suffered.
7.
Rethinking the Future Principles for the Next African Truth Commission
The
African experience of transitional justice offers valuable lessons for what
comes next. The continent does not need to copy Western models. it can build on
its own moral and cultural foundations. The next generation of African truth
commissions should rest on three non-negotiable principles, firstly, Economic
and Social Justice, truth must lead to transformation. Addressing poverty,
inequality, and dispossession is essential to make reconciliation real. Secondly,
Inclusive Participation, every process must give voice to women, youth,
and marginalized communities not as token participants, but as central
architects of peace. Thirdly,. Hybrid
Legitimacy, the best mechanisms will harmonize local customs with
international human rights standards, ensuring both cultural authenticity and
legal credibility. These are not mere ideals; they are safeguards for
meaningful peace.
6.
Conclusion
Transitional
justice in Africa represents a vital intersection between ADR and post-conflict
peacebuilding. By prioritizing reconciliation, truth-telling, and restorative
dialogue, it offers culturally resonant pathways toward healing societies fractured
by violence. However, the enduring tension between accountability and
forgiveness highlights the need for frameworks that integrate local traditions
with international human rights standards.
The
African experience shows that sustainable peace cannot be imported but must
emerge from within communities. Strengthened by transparency, inclusivity, and
justice, transitional justice anchored in ADR principles can become a powerful
vehicle for transformation across the continent.
Additionally,
Transitional justice in Africa has shown that peace without justice is fragile,
but justice without empathy is sterile. From South Africa’s moral courage to
Rwanda’s community resilience and Uganda’s hybrid struggle, Africa continues to
redefine what post-conflict justice can mean.
The
continent’s greatest contribution lies in its insistence that reconciliation is
not an event but a process a collective journey toward dignity, memory, and
repair. The next African truth commission must therefore go beyond telling the
truth, it must make truth transformative. Only then will transitional justice
become not just an act of remembering, but a renewal of hope.
BIBLIOGRAPHY
[1] United Nations Human
Rights Office of the High Commissioner, Rule of Law Tools for Post-Conflict
States: Transitional Justice (OHCHR 2006).
[2] UN
Security Council, The Rule of Law and Transitional Justice in Conflict and
Post-Conflict Societies: Report of the Secretary-General (23 August 2004)
UN Doc S/2004/616
[3] Chandra
Lekha Sriram and others, Transitional Justice and Peacebuilding on the
Ground: Victims and Ex-Combatants (Routledge 2010).
[4] Robert Cryer, Darryl Robinson and Sergey
Vasiliev, An Introduction to International Criminal Law and Procedure
(4th edn, CUP 2019).
[5] Promotion of National Unity and
Reconciliation Act 34 of 1995 (South
Africa).
[6]
Phil Clark, The Gacaca Courts, Post-Genocide Justice and Reconciliation in
Rwanda: Justice Without Lawyers (CUP 2010).
[7] ‘Truth and Reconciliation Commission
(TRC), South Africa’ (Encyclopaedia Britannica, 21 March 2003) https://www.britannica.com/topic/Truth-and-Reconciliation-Commission-South-Africa,
accessed 20 December 2024.
[8] Desmond Tutu, Truth and Reconciliation
in South Africa (Britannica 2003).
[9] P. B. Hayner,
Unspeakable Truths: Transitional Justice and the Challenge of Truth Commissions
(2nd edn, Routledge 2011).
[10] Bert
Ingelaere, Inside Rwanda’s Gacaca Courts: Seeking Justice after Genocide
(University of Wisconsin Press 2016).
[11] Lars
Waldorf, ‘Mass Justice for Mass Atrocity: Rethinking Local Justice as
Transitional Justice’ (2006) 79 Temple Law Review 1.
[12] Phil
Clark (n 6) 215.
[13] Bert Ingelaere (n 10)
[14]
ICC, ‘President of Uganda Refers Situation concerning the Lord’s Resistance
Army (LRA) to the ICC’ (Press Release, 29 January 2004) http://www.icc-cpi.int
accessed 14 January 2025.
[15] Tim
Allen, Trial Justice: The International Criminal Court and the Lord’s
Resistance Army (Zed Books 2006).
[16]
I Bangura, The Sierra Leone Truth and Reconciliation Commission: Successes
and Challenges (2009).
[17] UN Security Council, The Rule of Law and Transitional Justice in Conflict and Post-Conflict Societies: Report of the Secretary-General (23 August 2004) UN Doc S/2004/616(n 2).
[18] Ibid
[19] Agreement
between the United Nations and the Government of Sierra Leone on the
Establishment of a Special Court for Sierra Leone
(16 January 2002).
[20] Mathew
Happold, ‘The International Criminal Court and the Lord’s Resistance Army’
(2007) 10 Journal of International Criminal Justice 8.
[21]
Lars Waldorf, ‘Mass Justice for Mass Atrocity: Rethinking Local Justice as Transitional Justice’ (2006) 79 Temple Law Review 1 (n 11)
