Magister Theologiae - MTh / This study investigates three case studies, namely, the “Pepco Three”, the “St James Church incident”, and the “Gugulethu Seven incident” from the perspective of ongoing reflections on the nature of reconciliation in the sub-discipline of Systematic Theology. The research problem that is investigated in this project is: What role did visible signs of remorse (or its absence) play in the willingness or unwillingness of victims (or their close relatives) to offer forgiveness to the perpetrators of gross violations of human rights related to the three cases studies mentioned from the amnesty hearings of the South African Truth and Reconciliation commission, namely the “Pepco Three” the “St James Church massacre incident”, the “Gugulethu Seven”. In each case study, the crucial question that will be asked is whether the victims or their relatives understand forgiveness as something that is conditional and part of a longer process of reconciliation, or whether they understand forgiveness as something that can be offered unconditionally. The research draws on some standard theological literature with specific reference to literature on the concepts of reconciliation, forgiveness and remorse emerging in the aftermath of the South African TRC. This is followed by a description and critical analysis of the three identified case studies. In each case, I listened to the recordings, read the transcriptions, and considered the available secondary material on the case studies.

This thesis examines local transitional justice programmes and processes in Sierra Leone. I will examine both recognised mechanisms – official institutions with preconceived goals and processes that are already recognised as part of the transitional justice ‘toolkit’ and unrecognised mechanisms – processes outside the institutional transitional justice scope and discourse. Much research and analysis of these processes often prioritise organisations and their programmes as the starting point of investigation and fail to recognise the various individual actors involved, both within the organisational structures and the groups for whom these programmes are designed. Moving beyond discussions of impact and effectiveness, this thesis examines the actual activity of Sierra Leonean individuals in both recognised and unrecognised processes. Fambul Tok is an example of a recognised local transitional justice programme, which seeks to facilitate justice and reconciliation through bonfire ceremonies to make the programmes more contextually relevant for rural communities. I will look at the various individuals involved in constructing and shaping how Fambul Tok operates and is represented to different audiences to better understand dynamics amongst different Sierra Leoneans with attachments to different places, all of whom theoretically constitute the local. My thesis will demonstrate how transitional justice processes are not only institutional, but also individual. I move away from discussions about ‘societies,’ normative questions of institutional effectiveness, the underlying assumptions that propel transitional justice programmes and mechanisms and look more specifically at the activities and appropriation of individual actors within these transitional justice processes to better illustrate the diverse means through which individuals construct as well as engage with local transitional justice programmes and the unique unrecognised ways individuals move past their war-related experiences.

Why do some (non)violent civil resistances in nondemocracies achieve democracy while others do not? In order to answer this question, this project examined factors that result in different outcomes and the mechanisms critical to democratization. In particular, I paid close attention to whether autocracies failing after successful (non)violent civil resistance adopted transitional justice (TJ) mechanisms such as trials, truth commissions, and amnesty, and how civil society worked in each course of democratization. I explored the conditions of democratic consolidation (e.g., economic development, democratic neighbors, and political institution) and among them, focused on the civil culture that led citizens to participate positively and actively in politics with belief and trust. I found that in the course of democratization, implementing TJ policies is necessary in order to build inter-group trust and encourage citizens to participate critically in political reform. Because TJ mechanisms are designed to make past wrongdoers accountable and reconcile conflicting sides, these approaches can strengthen civic culture and promote reconciliation by restoring the rule of law and rebuilding victims’ dignity. In addition, I argued that a robust civil society (CS) plays a vital role in sustaining democracy, not only by encouraging TJ adoption, but also by playing roles such as supporter, mobilizer, enforcer, monitor, and so on. In this context, I suggested that (non)violent civil resistance can contribute to building a robust CS. Particularly, nonviolent and large resistance with diverse participants can increase the capacity, legitimacy, and representativeness of a CS so that it can play its role(s) properly. Statistical analysis with large-n data supported these arguments. Despite the controversy in the literature, adoption of TJ policies turned out to be a positively significant factor for achieving democratic consolidation; and, the robustness of CS, which can be developed through (non)violent civil resistance, was significant as well, particularly at the early phase of the democratization process. The application to the 2011 Arab Uprising cases (Tunisia and Egypt) that focused on TJ adoption and the role of CS revealed consistent conclusions as well. Although there are several limitations to this study, I attempted to reveal the importance of the linkages among steps to democratization and increase understanding of the “process” rather than simply the “cause” or “result.” In addition, the findings can be implemented in policies for proliferating democracy by supporting/encouraging democratization from the ground up (i.e., below), CS growth, and TJ adoption after transition.

Magister Legum - LLM

Post conflict justice is a concept that has in the last two decades gained notoriety and support across the world. The commitment by states to fight impunity by embracing accountability measures has increasingly gained support. This however, was not always the case. Before the 1980s the approach by most of the world was to turn a blind eye to serious violations committed during wars, insurgencies and serious conflict. This was done in the name of respecting state sovereignty, where other states were required to respect the conflict state by not intervening irrespective of egregious violations being committed to mankind. The tide eventually changed and many states have adopted numerous instruments as a sign of their commitment to fight impunity and bring accountability to the perpetrators of serious conflict. African states embraced this development, in 1998 during the Rome conference where the Rome Statute for the International Criminal Court was adopted. African states participated in large numbers during the negotiations. Subsequently, African states signed and adopted the Statute overwhelmingly. To date, 33 African States have ratified the Rome Statute making Africa the most represented region in the Rome Statute system. With Africa's share of countless conflicts, where serious human rights violations have been violated, post conflict justice is increasingly a reality in Africa. The application of post conflict justice is an emerging and ever evolving field in Africa. The implementation of post conflict justice has been the center of contested debates. These debates have in the recent past become more pronounced especially where international intervention has been applied in assisting African post conflict societies to deal with the past and bring accountability. The impact that the accountability mechanisms play in restoring a post conflict society has been overshadowed by these debates. This study therefore seeks to provide a balanced discussion on the role that the accountability mechanisms can play in African post conflict societies. The study gives an overview of the evolution of post conflict justice and also looks into the different post conflict justice approaches adopted by African countries and their potential role in accountability and societal healing. The empirical cases of South Africa and Kenya are analysed in the study as practical examples of the application of post conflict justice approaches. The impact of the accountability mechanisms adopted is also discussed. The unique role that the African Union plays in fighting impunity in the continent is also discussed and the impact of positions taken by the continental body on accountability in post conflict countries is analysed. In the end the study seeks to establish the growing pattern in Africa in dealing with post conflict situations and recommendations are made in the final chapter on how to improve the general approach by Africa to eradicate the culture of impunity for serious crimes committed in the continent.

In recent years, there has been a noticeable turn towards the “local” in both the practice and academic study of transitional justice, exemplified by a belief that local transitional justice processes (LTJPs) are superior because they are rooted in cultural practices and closer to the communities and people seeking justice. However, this assumption, and the existing literature on these local initiatives, pays insufficient attention to asymmetric power relations between national and local actors and to the unseen domestic political interests that shape local transitional justice processes on the ground. By taking these factors into account, this dissertation contends that LTJPs can be used paradoxically to deflect justice in ways that allow ruling parties to avoid human rights accountability and that obscure the truth about wartime events. The dissertation further argues that the principal means by which justice is deflected is not through overt manipulation by ruling parties, but rather, through more indirect processes of “distortional framing” that ruling parties use to establish discursive limits around discussions of the past and to conceal their own human rights abuses. The cases of Cambodia and Mozambique are examined in detail to reveal and to trace the processes by which distortional framing has been employed as a tactic to deflect justice. This dissertation contributes to the study of transitional justice, not only by challenging the prevailing assumption that LTJPs are inherently preferable because they are more “authentic” or closer to the people, but by providing a novel explanation of how these processes can be manipulated to subvert their own stated goal of advancing the cause of justice, and by providing a detailed account of these distortionary processes at work in two post-conflict countries located on two different continents.

Truth commissions are bodies established in political transition, and they have the stated purpose of reckoning with human rights abuses committed by members of former regimes. The question driving this research is "Why have truth commissions increased so rapidly in the last 20 years?" This study moves beyond current research, which suggests that particular domestic political circumstances alone determine choice of transitional justice mechanisms. I argue that an international rule of behavior, the transitional restorative norm, has emerged and spread to decision-makers in countries of transition. In support of this notion, I perform a pre-theoretical historical analysis of transitional justice and develop a theory of decision-making in transition-which is later tested with quantitative statistics. This integrated approach allows for increased scientific rigor in the examination of international norms. Ultimately, the study demonstrates an interrelationship between shared ideas and political environments in the determination of domestic policy.

A pesquisa tem dois objetivos centrais: reconstruir o desenvolvimento da justiça de transição no Brasil até os dias atuais e identificar algumas das principais razões dos limites de sua implementação no país. Conforme as principais hipóteses, os limites da experiência da justiça transicional no Brasil estão associados a um discurso sobre a redemocratização no país, discurso este que tem a conciliação nacional como sua principal categoria. A primeira hipótese da pesquisa é a de que o discurso da conciliação nacional, veiculado pelo menos desde a elaboração do projeto de anistia pelo governo Figueiredo, continuaria a ser um dos principais limites ao desenvolvimento da justiça de transição no Brasil. Mas a segunda hipótese sustenta que, dos últimos trabalhos mais aprofundados sobre o tema para cá, este discurso teria sua hegemonia contestada de forma significativa, sendo obrigado a ceder a algumas das demandas de entidades da sociedade civil que até pouco tempo atrás não eram consideradas como negociáveis. Os objetivos e hipóteses centrais da tese serão mobilizados na seguinte estrutura. Capítulo 1: teoria e crítica dos parâmetros normativos da justiça de transição. Capítulo 2: reconstituição histórica e discursiva sobre a anistia e sobre o programa brasileiro de reparações. Capítulo 3: reconstituição discursiva e crítica sobre o julgamento do STF acerca da constitucionalidade da bilateralidade da anistia e sobre o estágio das ações penais movidas pelo Ministério Público Federal. Capítulo 4: reconstituição crítica dos trabalhos da Comissão Nacional da Verdade. / The research has two main objectives: to reconstruct the development of transitional justice in Brazil until today and to identify some of the main reasons underlying the limits of its implementation in the country. According to our main hypotheses, the limits of transitional justice in Brazil are associated with a discourse on the countrys democratization, which holds \"national reconciliation\" as its crucial category. The hypothesis 1 of the research asserts that the discourse of \"national reconciliation\", elaborated at least since the project of amnesty by the Figueiredo government, remains one of the main limitations to the development of transitional justice in Brazil. But the hypothesis 2 maintains that from the last major works on the subject to today, the hegemony of this discourse has been significantly challenged, giving some room to historical claims of civil society that until recently were not considered negotiable. The objectives and main hypotheses will be developed in the following structure. Chapter 1: theory and critique of the normative parameters of transitional justice. Chapter 2: historical and discursive reconstitution of the amnesty and of the Brazilian program of reparation. Chapter 3: discursive reconstitution and critique of the decision of the Brazilian Supreme Court on the amnestys constitutionality and the stage of criminal cases filed by federal prosecutors. Chapter 4: critical reconstitution of the work of the National Truth Commission.

No description available.

"This dissertation seeks firstly to re-examine the merits of the competing philosophies on the role of amnesties in transitional justice. It seeks in particular to investigate the currently popular notion that justice is necessarily retributive and even beyond that, to determine the veracity of the claim that prosecution represents a necessary element of retributivist justice. The objective is to contribute to the ongoing debate by examining and drawing practical lessons from the case of South Africa, which emerged in 1994 from several generations of institutionalised gross violatoins of human rights. Accordingly the Amnesty Committee of the South African Truth and Reconciliation Commission (TRC), the law and the political philosophy undergirding its functions represent the focus of this study. ... This dissertation unfolds into five parts. Chapter 1, as an introduction to the rest of the work, sets out the relevance of the subject under review, the methodology and a brief overview of the chapters. Chapter two reviews the extensive literature on transitional justice and discusses the concepts that may be distilled therefrom. It discusses the contextual determinants of models of transitional justice and sets out the essence of the debate between vengeance and forgiveness as tools for achieving transitional justice. It also discusses the development of international law with respect to the permissiveness of amnesties and both the articulated and other justifications for their use. The burden of the third chapter is to first recount the factual circumstances of South Africa's trnsition and the factors that predicated the promulgation of the Promotion of National Unity and Reconciliation Act 34 of 1995. It then briefly examines the provisions of the statute and it's implementation. It also engages in an empirical assessment of the almost 800 amnesties granted and employs a number of indices to determine whteher the process was even handed and achieved its objectives. These indices are: the politicl affiliations of the awardees; whether or not the crimes for which they received amnesty involved the loss of life; whether or not they had already been punished for thier transgressions and; whether or not they received forgiveness from the vicitms - actual or constructive. Chapter four focuses on some fo the criticisms that the TRC received. It assesses their merits and determines to what extent they subverted the quest for justice in transitional South Africa. In particular it looks at the reasoning of the Constitutional Court in the AZAPO Case, the alleged lack of objectivity of the TRC, its almost exclusively Christian orientation and its almost exclusive focus on abuses of civil and political rights. Chapter five concludes the dissertation by first determining whether or not there are any lessons to be learnt from South Africa's amnesty experience. It then outlines what the lessons are or should be. It closes by making recommendations as to what factors or particular considerations should guide the efforts and aspirations of abused societies that embark on the quest for transitional justice." -- Chapter 1. / Prepared under the supervision of Professor Frans Viljoen, Faculty of Law, University of Pretoria, South Africa / Thesis (LLM (Human Rights and Democratisation in Africa)) -- University of Pretoria, 2001. / http://www.chr.up.ac.za/academic_pro/llm1/dissertations.html / Centre for Human Rights / LLM