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Thursday, August 11, 2022

Exploring truth commissions

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Truth commissions are temporary independent mechanisms established by governments, or governments in cooperation with the opposition to investigate and acknowledge the truth about past human rights violations, offer forms of justice, reparations, and closure to victims, promote reconciliation at the individual and national levels, and help institute reforms that would prevent reoccurrence of oppression and gross human rights violations in a society. At the conclusion of its mandate, a truth commission is expected to submit a comprehensive report of its findings to the government, which the government is often bound by law to publish and share with the general public. It is in this sense that it fulfills the right to know.

However, while most truth commission acts provide for the publication of commission reports by the state, in some cases, the reports are never published and the recommendations made in them never implemented by the government. This is because the truth contained in commission reports is often uncomplimentary to powerful members or sections of the government or public. Both state and non-state actors that are implicated in truth commission reports generally do everything they can to subvert the process and prevent their findings from being published even if the hearings are public.

It is a historical paradox that the first known truth commission was set up by none other than Idi Amin Dada. In a characteristic moment of eccentric defiance against a rising chorus of condemnations and accusations of gross human rights violations, and calls to investigate, Idi Amin decided in June 1974 to establish the “Commission of Inquiry into ‘Disappearances’ of People in Uganda since the 25th of January, 1971”. Chaired by a Pakistani judge with two Ugandan police superintendents and one army officer as members, the four-man commission was specifically mandated to investigate disappearances at the hands of the Ugandan military since Amin seized power on January 25, 1971. When the commission submitted its report to Amin, the Pakistani judge lost his job. One of the members was charged with murder and sentenced to death. A third fled the country for his life. Amin went on to earn his title as “the butcher of Uganda” in the years after the 1974 commission. While some scholars have argued that Amin’s commission was a quixotic exercise in futility, others have argued that “the importance of establishing a historical record alone should not be underrated” (Hayner, 1994).

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In fact, the truth seeking process lies at the heart of most truth commission rationalizations. It evokes the right to know, which is implied and contained in Article 19 of the Universal Declaration of Human Rights, the African Charter on Human and People’s Rights and the United Nations Principle to Combat Impunity (the Joinet Principles, 1996). According to the Joinet Principles, “The right to know is not simply the right of any individual victim or closely related persons to know what happened – a right to the truth. The right to know is also a collective right, drawing upon history to prevent violations from reoccurring in the future. Its corollary is a “duty to remember” which the state must assume in order to guard against the perversions of history that go under the names of revisionism or negationism; the knowledge of the oppression it has lived through is part of a people’s national heritage and as such must be preserved.”

At least 40 truth commissions have been established around the world since Uganda 1974. While the South African commission is arguably the most famous, many countries had truth commissions before South Africa’s 1995 TRC. These include Bolivia, Argentina, Uganda (1974 and 1982), Nepal, Chad, Chile, Germany, Haiti, Sri Lanka, and El Salvador. Since 1995, there have been truth commissions in Ecuador, Nigeria, Uruguay, Panama, Yugoslavia, Republic of Korea, Guatemala, Timor-Leste, Peru, Grenada, Ghana, Sierra Leone, Morocco, Paraguay, Democratic Republic of Congo, Liberia, and Indonesia. Gambia is therefore only one of the latest in a long list of countries that have instituted truth commissions in the aftermath of dictatorship or conflict situations. In Zimbabwe, the government of Emmerson Mnangagwa is currently establishing a truth commission – the “National Peace and Reconciliation Commission” – to promote peace and reconciliation after Mugabe. Zimbabwe’s NPRC is most certainly fated to operate under very difficult circumstances because it is set up by and investigating the actions of a sitting government – the same Zanu-PF government headed by Mugabe.

Truth commissions are inherently controversial institutions. Operating as they do in post-conflict or post-authoritarian socio-political contexts where populations are traumatized and angry, truth commissions are never able to mobilize national consensus behind their need to exist. They are always characterized by a tug-of-war between proponents of criminal justice and proponents of transitional justice, of which truth commissions are one mechanism. The proponents of criminal justice insist that the best way to deal with the perpetrators of human rights violations is simply to arrest, charge, prosecute and sentence them according to their crimes. They argue that it is an utter waste of time and resources to engage in a lengthy process of investigation when the perpetrators are known and should simply be dealt with through the criminal justice system. The proponents of transitional justice on the other hand hold that truth commissions are needed to acknowledge the truth and produce a true historical record of past human rights violations, to secure justice and help victims and their families heal, to promote national reconciliation, and to recommend policies, institutions and practices that will prevent a recurrence of similar violations in the future. Most governments that establish truth commissions hold the latter view. They opt for a transitional justice process that leaves open the possibility of criminal prosecution but ultimately seeks national healing and the prevention of future abuses.

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A cardinal principle of truth commissions is that they are legally independent of the institutions that set them up, both governments and non-state actors. They are neither avenues for the castigation of past governments nor organs for the pursuit of sitting government agendas beyond its mandate. They are there to establish the truth of what happened, facilitate access to justice and reparations for victims, promote national reconciliation and healing, and recommend ways and means of making sure that what happened in the past never happens again. Procedural Fairness is their defining characteristic. Any extralegal partiality in the execution of its mandate discredits and renders a truth commission process null and void.

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