A democratic deficitFor transitional justice to be broadly acceptable, it needs to be consultative
Some weeks ago, the government had unveiled a new draft amendment on transitional justice that was meant to rectify problems with the 2014 law to bring it in line with the Supreme Court verdict of 2015 and international standards. In the period since, various organisations and activists have managed to study the law and identify its positive and negative aspects.
The aspect of the bill that has garnered the most attention has been on the provision regarding amnesties. Previously, the Truth and Reconciliation Commission (TRC) had been given the power to amnesty even serious violations of human rights. The new draft amendment has removed this provision. It has also brought greater clarity to the definition of serious human rights violations. These are now defined as acts of extra-judicial killing, torture, disappearance and rape. Furthermore, previously the government had envisaged establishing a special court for conflict-era crimes. The verdict of this court would be final and no appeal would be allowed. But the new law states that appeals can be made at the Supreme Court.
These are positive developments. But as various human rights organisations and victims’ groups have said recently, it is far from perfect. Much attention has been focused on the provisions on sentences for those found guilty of war crimes. The draft amendment provides exceedingly lenient sentences. If perpetrators cooperate with the transitional justice process, they will be let off with a sentence in an ‘open prison’. Even those who do not cooperate will receive very short sentences. Victims groups state that the leniency evident here makes a mockery of justice.
The draft amendment also includes a wide range of vague provisions and loopholes that could enable perpetrators to evade the law. For example, in a positive step, the bill states that there will be no statute of limitations for serious human rights violations. This means that cases can be brought to court anytime, even if in the distant future. But the bill states that all conflict-era cases will be heard by the Special Court, which will be established for a period of two years. It is unclear where and how court cases can be filed after that time has elapsed.
Victims’ groups and rights activists have complained that the bill was drafted without consulting them. They were simply presented with the draft drawn up by the government representatives. This is also one reason why there is such widespread suspicion of the government’s intentions regarding transitional justice.
Without wide consultation, the transitional justice process cannot succeed. It is imperative that the government holds consultations with victims, consider their inputs, and redraft the amendment. Only then should it be presented for discussion and passage at Parliament.