Judicial mechanisms as a complement to reconciliation efforts in transitional justice settings: Exploring opportunities in the Burundian context

Author: Lyse Nathalie Menyimana
Researcher and independent consultant

Transitional justice    

Transitional justice is a set of mechanisms established in post-conflict settings to deal with massive violations, acknowledge victims’ claims and attempt to deter violations from happening in the future. While recognising the lack of a perfect formula, whether in the definition or sequencing of the mechanisms, transitional justice (TJ) leaves space for every society to find its own way to deal with massive human rights violations (African Union Transitional Justice Policy, 2019).

While TJ is essentially based on four complementary pillars –truth, justice, reparations and guarantees of non-repetition– inspired by Louis Joinet, this brief article addresses the importance of the right (access) to justice, with regards to long term reconciliation in countries engaged in transitional justice processes such as the Burundi context. The author believes that the right to justice is fundamental and complementary to the right to truth, to reparations and that it can be seen as a precondition for national reconciliation.

Transitional justice in Burundi: Background

The TJ process in Burundi results from the 2000 Arusha Peace agreement, a promising deal intended to end decades of violence which called for the establishment of a special tribunal and a truth commission. Only fourteen years later in 2014, the Truth and Reconciliation Commission (TRC) was created with a four-year mandate, renewed in 2018 and in 2022 for the same time period. Its wide mandate includes investigating the truth on human rights violations from 1885 to 2008, establishing individual and institutional responsibility, documenting the causes and consequences of episodes of violence, identifying mass graves and conducting exhumations as well as suggesting a historical record shared by most Burundians, etc.

Statements-gathering, identification of mass graves and soon public hearings constitute so far, the main activities of the TRC. Although truth commissions are meant to be impartial and neutral in their work, the Burundian TRC has been criticised for promoting a one-side version of past events by documenting and qualifying violations of a specific period of time –while its mandate is wide– rather than all periods covered in its mandate. Such practice could lead to lack of trust in the conclusions of the TRC from a certain group of citizens, hence firming up the “victim war” or the “us versus you” clash. In numerous public communications, the TRC has however reassured that other periods of conflict will be equally investigated.

Whether investigations, statements-gathering, identification of mass graves or public hearings, these remain within the framework of the right to truth of victims and survivors. One might wonder whether a “formal” truth-seeking process is solely sufficient to deal with decades of violence and to effectively respond to the needs and demands of long-waiting victims, including judicial processes. It is in this sense that we will explore and thereafter suggest opportunities in terms of an appropriate judicial mechanism in Burundi.

Transitional justice settings: types of justice

According to John Webber (2012), the justice which is implemented in TJ contexts can be of three types: a retrospective dimension which is backward-looking and aims at repairing the consequences of conflict; a prospective element which is forward-looking in order to transform the society; and the adjustment of juridical orders which seeks self-determination in which the society as a whole will search for the appropriate type of justice fitting to its specific context.

Furthermore, as Desmond Tutu said, there is “another kind of justice”, restorative justice, whose central focus is not punishing but is rather about healing and restoring broken relationships, thus emphasising reconciliation over retribution. In fact, restorative justice seeks to hold perpetrators accountable by emphasising on the harm caused to others but also give them the opportunity to be reintegrated in their communities through restoring the dignity of victims (Kiss, 2000). In TJ contexts, there are cases where victims will legitimately demand punishment rather than forgiveness towards their oppressors; thus the need to implement a victim-centered approach.

While recognising that a perfect type of justice does not exist as contexts are different, the aim of considering any approach that leads victims to access to justice –be it retrospective, prospective, adjustment of juridical orders, retributive or restorative– is to ensure that it is locally-owned and fit to Burundians’ realities and expectations so that its demanders truly feel a sense of justice.

The absence of a judicial mechanism in TJ settings: exploring opportunities

Based on the different types of justice presented above, we are suggesting opportunities of a judicial TJ mechanism to complement the challenging work of the TRC.

Ad hoc judicial mechanisms –be it international, hybrid, national or community-level– have been created in TJ contexts like ex-Yugoslavia, Rwanda, Sierra Leone, Cambodia, etc. In fact, these institutions are purposely established in post-conflict settings with a specific mandate for a determined period to allow prosecutions, in cases where the national judicial system cannot intervene, of alleged authors of violations.

As a first option, a Special criminal court could be created, separated from Burundian courts, with national judges that would solely adjudicate cases referred by the TRC. The Colombia case has shown that these kinds of institutions are more accurate and low costs than hybrid tribunals with an international touch.

The second option comprises the designing of an innovative fully community-led institution with both a traditional and legal approach of justice to deal with a set of cases which cannot be dealt with by the TRC. The existing traditional and local justice system -the institution of “Ubushingantahe” for instance- could be a starting point and serve as inspiration. In fact, Ubushingantahe is an institution which existed before colonisation, in which selected (male) individuals considered as the role models, wise and truthful played a significant role in local conflict resolution, in maintaining order and security, as well as social cohesion within the community, However, the suggested institution is not to be confused with a dispute resolution mechanism which applies in ordinary times; it would rather have a backward looking model rather than ongoing events.

The establishment of both suggested institutions would imply a mandate on the types of violations to cover, the timeframe covered, the framework of its collaboration with the TRC, the extent of involvement of external stakeholders, etc.

The future of the TJ process in Burundi: a need for a Burundian-owned mechanism 

This brief paper gave an overall picture of the ongoing Burundi TJ process, elaborated types of justice in TJ contexts and suggested two options of (ad hoc) judicial mechanisms to complement the challenging work of the actual TRC. In the framework of finding a locally owned mechanism as the African Union (AUTJP) recommends, Burundians ought to reflect on the appropriate judicial mechanism which would be fit to Burundians’ realities, needs and expectations so that its demanders truly feel a sense of justice.

About the Author

Lyse Nathalie Menyimana has experience in conducting research on transitional justice and peacebuilding, human rights, gender and related themes as well as the role of civil society in post-conflict settings; amongst others. She has worked on projects that promote the participation of different stakeholders in the Burundian transitional justice process. Nathalie holds two Masters; one in human rights, transitional justice and the rule of law and another in child rights.