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Should Zimbabweans be looking back?
Max du Plessis and Jolyon Ford, Institute for Security Studies
June 19, 2009

http://theafrican.intoweb.co.za/index.php?page=feature1

Compelling arguments have been raised for and against a Truth and Reconciliation Commission (TRC) for Zimbabwe. Some propose 'bury the hatchet, not the past' in aid of national healing, while others caution that such an instrument to bring about peace could lead to a war of words amid a fragile transitional period.

Suggestions that a truth commission may be valuable in facilitating peace for Zimbabweans stem from two premises. First, that human rights abuses in its modern history have been serious, widespread, persistent, deliberate, systemic, and conducted largely with impunity. Second, that it is right in principle and prudent for peace prospects that these abuses be formally and publicly acknowledged - and addressed in a way that arrests impunity and affords victims justice and due redress, without threatening the possibility of a legitimate transition without serious resistance and conflict - now or in future.

Fundamental to any transitional justice strategy confronting human rights abuses is to define what constitutes 'the past'. The following three 'categories' roughly describe the immediate past in relation to which a TRC might be constituted.

• Zimbabwe has been plagued by almost a decade of political violence, intimidation, displacement and destruction. It kicked off with the February 2000 constitutional referendum, escalated with the June 2000 elections, and has continued ever since. These violations spiked around elections including the March 2008 poll and its aftermath. Since October 2000, legal impunity for violators has purportedly been assured through clemency, amnesty and indemnity orders.
• Since 2000, acts of violence, displacement and property loss associated with spontaneous - as well as state-sponsored - invasions of mainly white-owned commercial farms have been recorded.
• Many human rights abuses have been linked to Operation Murambatsvina in 2005 which led to the forcible displacement of 700 000 people (UN 2005).

Of course, state human rights abuses were also rife in Zimbabwe's history during earlier periods - the colonial era (pre-1965), in the former state of Rhodesia (pre-1980) and throughout the 1980s with political violence raging, in particular the Zimbabwean army's gukurahundi campaign in the Matabeleland and Midlands provinces in 1983-4 that was marked by claims of grave crimes and massive abuses.

These periods pose a more difficult question as to whether any formal mechanism should attempt to deal with the allegations of abuse. These periods in Zimbabwe's past are arguably unresolved and 'unprocessed' - neither truth nor justice, reconciliation nor redress has been attempted or obtained - and represent a possible future source of demands and disunity. However, to include these periods in the initial mandate of a new commission carries the risk, in a still fragile setting, of reopening ethnic fault-lines.

A Zimbabwean truth commission: Why?

'Truth commissions' are normally official (state-authorised or sponsored), non-judicial fact finding bodies - a once-off event, with a limited lifespan and mandate. They focus on victims and investigate or receive information on abuses over a specific period of time. They normally produce a report with recommendations for reparation and redress, and send out a message of 'never again'.

Since 1974 numerous truth commissions have been established by states - with or without the assistance, encouragement or say-so of international actors - either to support peace processes or to promote democratic progress in post-conflict societies.

There is no unique formula for implementing effective transitional justice: a truth commission is but one option and should not be automatically resorted to as a 'first aid kit' as part of conflict resolution. However, it is still worth debating the pros and cons of a TRC for Zimbabwe.

The case against a TRC: moving on, leaving the past alone

Suggestions for a formalised TRC process assume that it is not sufficient to simply leave the past unresolved. However, some have argued that one should generally 'curb the enthusiasm' about truth commissions. So, a deliberate decision not to pursue any formalised process is also a possible option for Zimbabwe.

Leave the past behind

One argument goes that peacebuilding should be 'centred in the will of the people' as it is quite possible that the overwhelming view in society might be that the past should simply be left alone. Some societies such as Spain after General Franco drew a 'thick line' between past and present and moved on, apparently successfully, without any particular structural mechanisms for reconciling with the past.

Forgive and forget

US researcher Rosalind Shaw challenges the purportedly universal benefits of verbally remembering violence, arguing that 'social forgetting' may be an equally valid strategy. Shaw's research in Sierra Leone revealed that despite pressure from NGOs and human rights activists for a truth commission, most ordinary people - who were tired, afraid and too well acquainted with 'the truth' of the violence - appeared to prefer a 'forgive and forget' approach.

A waste of money

There are other problems too. A TRC could squander precious time, money and (if handled poorly) perhaps a once only opportunity for sustainable peace.

Source of conflict

Depending on its timing and tone and the prevailing political balance, a TRC (and the process of designing it) could create a new venue of dispute. It could then itself become a source of renewed conflict, fragmentation and disintegration as constitution-making processes in transitional societies sometimes do. Any TRC could also be used as a political tool to disproportionately apportion blame on one side; or could threaten or antagonise powerful and influential persons upon whose co-operation a fragile national unity depends.

Wrongful redemption

It could partly redeem and legitimise the previous regime by enabling its representational portrayal in an ordered institutional process.

Reconciliation compromised

Some see the notion of reconciliation as already compromised in Zimbabwe. Archbishop Pius Ncube has branded the cycles of abuse and impunity in Zimbabwe 'cancerous', arguing against amnesties and calling for prosecutions to educate future generations. And just two years ago a Zimbabwe Human Rights NGO Forum report stated that Zimbabweans are 'cynical' about reconciliation; that the concept has been 'widely devalued, perhaps irrevocably' and 'remains polluted as a result of its expedient political manipulation and its failure to deliver meaningful results'.

Appeasing elites

Internal and external political factors influence the shape and choice of peace institutions. Care should be taken that 'transitional justice options' and institutional models (such as TRCs) reflect local demands. They should not be selected to appease international expectations, concerns and demands. Nor should they formulaically follow rule of law 'prescriptions' rather than what is really needed - and wanted - on the ground. Truth commissions are not to be implemented, regardless of the circumstances. Some argue that it should be established whether such an exercise has popular support among ordinary people not just local or international NGOs or other elites.

False sense of resolution

South Africa's experience has been hugely influential in the TRC debate. But foreign experts or donors may fail to appreciate that South Africa's experience is not necessarily apposite to Zimbabwe's very different history. No TRC model can simply be transposed directly from one situation to another. 'Reconciliation' needs to be defined within a specific historical and cultural context. There is a risk that such institutions are foreign models 'lost in translation' or are cosmetic only, giving a false sense of resolution.

Grassroots reach

A great part of any TRC process is understood as symbolism and ritual, but to fulfil their function new institutions dealing with common experiences need to reach and be reached by the grassroots level. World Bank studies note that 'supplying institutions is not enough: people must want to use them'. These observations suggest that a TRC would be meaningless without a concerted (and expensive) public engagement and education programme. Weighed against other priorities, it may not be viable in the near future.

Thus, when there is a relatively high level of awareness about the state's role in abuses (coupled with power-balancing issues, the need to avoid creating new avenues of friction, general fatigue, fairly widespread communal implication in violence, legal complications from past pardons and amnesties, and resource shortages), it is at least arguable that Zimbabweans may legitimately indulge in deliberate 'social forgetting'. Victor de Waal's impression of Zimbabwe's first decade after 1980 is that society as a whole decided to simply move on, at least in relation to the Rhodesian era, leaving the past behind.

The case for a TRC: addressing the past for the future's sake

However, most experience in other societies points the other way, especially where there are concerns about who gets to decide what is 'forgotten'. The passive response to Rhodesian-era abuses has left many legacies still affecting Zimbabwe today, including a culture of impunity.

And even if it could be proven that most Zimbabweans are 'cynical' about reconciliation, this does not preclude a TRC. Instead, it depends on the form and practice of any such institution, the possible positive community response to any visible international sponsorship of such a process (rather than more 'government business'), and the prevailing political situation at the time.

Various factors call for the establishment of a TRC as an element of a comprehensive approach to transitional justice.

Legal duty

There is probably no 'right to truth' in international law, but one fundamental principle suggesting some formal justice mechanism is the well established international legal duty on the Zimbabwean state (whichever regime is its custodian) to not only refrain from violations but to afford remedy and reparation to victims of human rights abuse, by at least attempting investigations.

Courts compromised

Criminal courts in any country that has been subjected to oppressive rule are likely to be severely weakened, if not entirely compromised. There may be such a degree of complicity by members of society that it is virtually impossible to prosecute all offenders. In any event, mere prosecutions, even if politically possible, do not necessarily achieve reconciliation or reduce tension. By their nature, trials moreover 'paint an incomplete picture of the past' or even distort history.

Symbolic closure

The most obvious objective of an official truth body (TRC), is that an accurate record of the country's past be established, uncertain events be clarified, victims be assured of recognition, and the silence and denial regarding human rights violations be dealt with. Such processes can achieve a measure of symbolic closure enabling a corrected history more on one's own terms and an institutionalisation of the memories of the period of abuse (for therapeutic as well as principled reasons). The process is partly aimed at reaching an institutionalised common memory or national consensus on how the past is to be remembered. This is in contrast to denial and deliberate or non-deliberate forgetting.

Never again

The 2008 MDC policy on justice is that 'the right to know' extends from victims to the whole of society 'to become a collective right . . . to ensure that violations are recorded in history so as to prevent their recurrence'.

National healing

For many victims no new 'truth' will emerge, but formal acknowledgment of their truth can be vital in individual and group healing, forestalling division, and enabling peacebuilding. However, as Jeong has rightly pointed out, knowing 'the truth' of what took place is a necessary condition for forgiveness, but not a sufficient condition for reconciliation and peace.

Reparation tool

In addition to seeking the truth, such a commission can be a platform for addressing matters of principle and ensuring grievances do not undermine peace prospects. Such commissions can also serve as a vehicle to go beyond establishing the truth - mainly to attempt reparation - not merely financial or in-kind compensation, but broader notions of restitution, rehabilitation, satisfactions and guarantees of nonrepetition.

Forum for forgiveness

Truth commissions serve as a forum for forgiveness and for formal recognition of victims, to help them reclaim their dignity. Perpetrators are afforded a formal mechanism to renounce their violent deeds. 'Reconciliation' may mean many things - but it is essentially about (re)-building civic trust and shared commitment to normative values, including putting past differences aside. There is already arguably this consensus on fundamental moral norms in Zimbabwe, even if they have been breached for some time.

Chanelling tensions

A truth commission can serve to 'civilise' and channel tensions in a way that can reduce the potential for violence. It can describe institutional responsibility for human rights abuses and propose specific reforms. Truth commissions can thus be cathartic and promote reconciliation, lifting the lid on human rights abuses, ending denial that might still persist in certain sectors of the community, creating visible distance from the abusive era and enabling forward movement. It can also help to focus on the bigger picture and move away from apportioning individual guilt where this is paralysing peace.

There are compelling factors that suggest a need for a TRC in Zimbabwe:

• The consistency and level of state intimidation and brutality
• The use of legislative instruments to sanction state violence
• The politicisation of the judiciary and the prosecution authority
• The partly covert nature of direct state abuses and indirect stateinstigated violations
• The large number of low-level perpetrators especially among youth militias
• Secrecy and denial on the part of the regime
• A culture of impunity reinforced by pardons and general amnesties over many years
• The lack of remedial and redress options

The question remains: where will Zimbabweans place themselves in relation to politics and principles of justice in the current interim phase - and who gets to decide for Zimbabweans on these issues? Now that a legitimate transition process is in place, a correct balance needs to be struck between forward momentum and an adequate pause on past injustices.

However, the prospect of a truth commission should not be postponed while 'politics' runs its course: what it offers by way of compromise can assist in ensuring a legitimate transition is possible. Of course, any choices about the features of a Zimbabwean TRC will necessarily reflect the political compromises and stresses that accompany a transition from autocracy to democracy.

Arguments for and against a TRC for Zimbabwe

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