Transitional justice is not a special form of justice. It is, rather, justice adapted to the often-unique conditions of societies undergoing transformation away from a time when human rights abuse may have been a normal state of affairs.
In some cases, these transformations will happen suddenly and have obvious and profound consequences. In others, they may take place over many decades.
Transitional Justice is a holistic process involving a range of mechanisms employed to ensure sustainable lasting peace in a society that is metamorphosing from a violent conflict or repression to societal stability.
This process provides opportunities for such societies to address past human rights abuses, mass atrocities or other forms of severe trauma in order to facilitate a smooth transition into a more democratic or peaceful future as well as to address large scale or systematic human rights violations which are so numerous and so serious that a normal judicial system cannot provide, because it is a long process and one that cannot be accomplished overnight.
As Paul Lederach observed that getting out of a conflict takes as long as it takes to get into it. If a conflict has been building and breeding for a century he warned that it would take long before it is resolved.
A transitional justice approach thus recognizes that there are two goals in dealing with a legacy of systematic or massive abuse. The first is to gain some level of justice for victims. The second is to reinforce the possibilities for peace, democracy, and reconciliation. To achieve these two ends, transitional justice measures often combine elements of criminal, restorative, and social justice.
Louis Joinet summarized transitional justice under four pillars;
The right to the truth (establishment of facts, seeking of missing persons, archives etc.)
The right to justice (commissions of inquiry or truth, national regional international and mixed justice etc.)
The right to reparation (individual and or collective reparation programmes, public apologies, memorials, remembrance etc.)
The guaranty of non-recurrence, through the implementation of institutional reforms such as constitutions, structural reforms security institutions etc.
Taking into account vulnerable groups is a crucial aspect of each pillar otherwise, the discrimination that may have led to past abuses may re-emerge during reconstruction.
Transitional justice takes place in great variety of contexts. It is important to avoid indiscriminate application of solutions and off the shelf templates, always bearing in mind that the most sensitive aspects of such processes stem from the contexts that shape them.
After 22 years of dictatorship, as Gambians rebuild from the injustices of former Dictatorial regime by ushering in a new dispensation leaving behind a period of gloom isolation and excruciating uncertainty it is now faced with the stark reality of healing a nation of which fabrics of democracy, good governance, rule of law have become a rhetoric myth, ensuing a system of disappearances, killings, tortures, brutality, misrepresentation, impunity, misappropriation of national funds, corruption, forced exiles and indignant.
The measures employed in transitional justice can be both judicial and extra judicial in nature as it aims to halt ongoing human rights abuses,
investigate previous crimes, prevent future abuses to preserve and enhance peace and provide reparation for victims which are normally aimed at rehabilitation of victims of human rights abuses. Including financial payments, social services including hospitals and education and public apologies.
Transitional justice also seeks at institutional reform process during which public institutions like the police, army, intelligence units and the judiciary are transformed so as to prevent the re-occurrence of abuses that may have been used to commit in the past.
Individuals in such institutions who commit such atrocities should be flushed out in the system while punitive measures may be taken.
Appropriate training should then be given to the rest of the officers to help them professionalise.
Transitional justice also aims at national reconciliations as well as among individuals.
A press release from the ACHDR has indicated that the proposed establishment of the truth reconciliation and reparation commission is one way of putting the rule of law, democracy and human rights on the national development agenda, to promote national reconciliation and healing and foster social cohesion.
Practically and conceptually, the various measures of transitional justice call for one another.
This logic becomes clear when one considers the possible consequences of implementing any one of them in isolation from the others.
Without any truth-telling, institutional reform, or reparation efforts, punishing a very limited number of perpetrators can be viewed as scapegoating or a form of political revenge.
Truth telling, in isolation from efforts to punish abusers, reform institutions, and repair victims, can be viewed as nothing more than words. Memorialization efforts, also, are likely to seem shallow and insincere when not complemented by more robust efforts. Reparation without any links to the other transitional justice measures may be perceived as ‘blood money’ – an attempt to buy the silence or acquiescence of victims. Similarly, reforming institutions without any attempt to satisfy victims’ legitimate expectations of justice, truth, and reparation, is not only ineffective from the standpoint of accountability, but unlikely to succeed in its own terms.
Implementing these measures with the appropriate structure and sequence can be a complex challenge. There are a few general rules that bear mention. First, transitional justice measures should be structured in a way that helps to maximize complementarity and that minimize conflict or contradiction.
Second, interrelationships among measures should not be too vague or too complex, which may have the counter-productive effect of causing confusion about each measure’s aims and thereby inhibiting public participation and support. And third, the different measures of transitional justice should ideally be sequenced in a manner that helps preserve and enhance the constituent elements of the transition itself—democracy and peace—without which all transitional justice possibilities may diminish in scope and quality
Ultimately, there is no single formula for dealing with a past marked by massive and systematic abuse. Each society should indeed choose its own path.
To date, practice has taught us that a society’s choices are more likely to be effective when they are based on a serious examination of prior national and international experiences. Such examination reduces the likelihood of repeating avoidable errors, which transitional societies can rarely afford to make. Ensuring active consultation of, and participation by, victim groups and the public is another crucial factor.
Without such consultation and participation, the prospect of designing and operating credible and effective transitional justice policies is greatly reduced.
Moreover, the potential benefits of transitional justice initiatives will likely affect more people when a gender-mainstreaming approach cuts across all of them. Transitional justice measures that neglect the distinct and complex injuries women have suffered, as well as gendered patterns of abuse that may have affected both women and men in their access to justice, will miss key opportunities to address the gendered legacies of authoritarianism and conflict.
The fact that transitional justice is a relatively new field, there is a need to continuously assess the empirical impact of transitional justice measures. Through assessment, future policies will stand the best chance possible of achieving the immediate goals providing redress for victims, as well as the longer-term goals of peace, democratization, and reconciliation.
Despite its short comings transitional justice is so far, the best available instrument for the purpose of transforming conflicts.
On the positive side, the World Bank report on conflict security and development has linked transitional justice to security and development and has referred to as a signaling mechanism government can employ to show that they are breaking away from past practices.
The report also argued that transitional justice measures can send signals about how important the improvement of accountability and the improvement of institutional capacity.