Restorative Justice Research in Europe: Outcomes and Challenges

1. The politics of restorativejustice in the trigger of Africa. How useful are our restorative justice frameworks in interlocked conflictsKris Vanspauwen In cooperation with Theodore Kamwimbi, Joseph Yav Katshung, and Tyrone Savage Restorative Justice Research in Europe: Outcomes and Challenges 22-24 November 2006, Warsaw Academy of Management

2. DRC: interlocked conflicts • Rebel groups finding shelter: among others the Rwandan Interahamwe, rebels from Burundi, Congolese groupings, Lord’s Resistance Army from Sudan, … • 1 million Hutu refugees from Rwanda • Internal tensions between military and Bemba’s security forces • Over 3 million deaths

3. Peace • 1999 Lusaka Peace Accord was signed by Angola, the DRC, Namibia, Rwanda, Uganda and Zimbabwe, and more than 50 rebel leaders • 2002 Sun City Agreement signed by all Congolese political groupings • 2002 Pretoria Agreement between DRC and Rwanda • 2002 Agreement in Angola signed by DRC and Uganda • 2002 Global and Inclusive Agreement

4. Objectives of Transition • reunification and reconstruction of the country • re-establishment of peace and restoration of territorial integrity and State authority • national reconciliation • creation of a restructured, integrated national army • organisation of free and transparent elections • setting up of structures that will lead to a new political order

5. Institutions of Transition • Transitional institutions: • President • Government, National Assembly, Senate • Courts and Tribunals • Institutions supporting democracy • Truth and Reconciliation Commission • National Human Rights Observatory • High Authority of the Media • Ethics and Anti-Corruption Commission • Independent Electoral Commission

6. Inhibiting factors • Judiciary: partiality, infrastructure, incapacity, inchoate laws, amnesty • Impunity due to a failure by the DRC to meet its obligations to investigate and prosecute • Failure to provide victims with effective remedies and reparation for the injuries suffered • Access to justice (20%) • Fragile peace and security in the eastern part of DRC • Fear of destabilization • Transitional Justice Policy • Prescriptive nature of Sun City resolution • Politicized TRC • Unclear amnesty policy • Lack of civil society involvement • Scarcity of human and financial resources • Reluctance of UN to establish international tribunal

7. Justice enhancing factors • Peace agreement signed by all stakeholders • A handful of successful prosecutions • Settling effect of the indictment of T. Lubanga before the ICC

8. Restorative truth-seeking • Encounter • Inclusion • Active Participation • Accountability • Reparation • Reintegration

9. Informal mechanisms of conflict resolutionin the DRC • Barza Intercommunautaire (North Kivu) • Commission of Pacification and Harmony (North Kivu) • Kyaghanda (North Kivu) • Truth Commission

10. Encounter • Encounter important feature of truth-seeking mechs concerned to establish social truth • Potential for healing and regaining dignity for victims • Fostering a sense of active responsibility for perpetrators • Carefully considered encounters can contribute to restorative truth

11. Encounter in the DRC • Kyaghanda (traditional mech for conflict resolution) • first identify the nature and sources of the conflict, then the means for resolving it are identified and reconciliation is only existing result expected out of the dialogue. The case is closed only when compromise, reconciliation, harmony and social peace are achieved.

12. Inclusion • Challenges to fully include all stakeholders: • Identification of victims • Consensus on who will be acknowledged as a victim • Categorising victims and perpetrators • Defining beneficiairies

13. Inclusion in the DRC • Massive scale of victimisation: over 3 millions of victims in the DRC • How far should the mandate stretch? 1960-2006: realistic? • How do we define child soldiers?

14. Active Participation • Conditions for active participation: • Guarantees of safety and protection • Equal balance of power • Procedural justice: • Process • Decision-making • Victims: Acknowledgement of personal truth • Perpetrators: the carrot or the stick? Some positive rewarding incentive should be considered

15. Active Participation in the DRC • Perpetrators: related to disarmement

16. Accountability or responsibility • Characteristics of sincere responsibility taking: • Apology • Restitution • Change of behaviour • Generosity • Active accountability should be related to the engagement of repairing the harm • Accountability  Reparation

17. Accountability in the DRC • Barza Intercommunautaire – local mechanism • Inter-communitarian structure in North Kivu and established in 1998 • Goal: reconciliation between divided ethnic communities • Ceremonies contain the acknowledgment of guilt, the request for forgiveness, the promise not to repeat the offence and rituals of purification. • As it can be noticed, any type of conflict may be dealt with inside the Barza, which does not focus on the perpetrators but on the sources of conflict.

18. Accountability in the DRC • Barza Intercommunautaire – national mechanism • In 2005 DRC transitional government decided to extend the Barza project to the rest of the DRC regions. The project was funded by the government and logistically supported by the United Nations peacekeeping mission in the RDC, MONUC and was full supported by number of Congolese and international civil society organizations.

19. Reparation • Reparation is the ultimate goal of restorative justice • Post-conflict situations: reparation is one of the accountability measures • Who is the duty bearer? • IC it is argued that the State has the duty • Individual perpetrators? • Role of bystanders/beneficiairies • Reparation is a wide concept • Restitution • Compensation • Rehabilitation • Symbolic measures • Guarantees of non-repetition

20. Reparation in the DRC • Kyaghanda (traditional mech for conflict resolution) • The perpetrator is due to provide the victim with reparation evaluated in terms of natural values, such a chicken or a goat according to the gravity of the harm done. In some extreme cases, to symbolize and materialize the new covenant, the perpetrator’s family offers to the victim or his family a young girl full of virtuosity and fecundity. This has a particular meaning given that in the Kyaghanda women represent political power and strengthen harmony between communities, as the Nande proverb says, “Without women, no power”

21. Reparation in the DRC • Truth Commission • TRC was mandated to take all the necessary measures to provide reparations to victims. Quite exceptional

22. Reintegration • Responsibility in order to re-build social capital • Interest of the society to reintegrate perpetrators into communities in order to decrease the security threat

23. Reintegration • Commission of Pacification and Harmony • Established in 1997 in the North Kivu to reconcile the major ethnic groups following the decay of Mobutu regime. • Opportunity for dialogue, discuss community problems and reconcile for peaceful coexistence. The commission has achieved a big goal in terms of the disarmament, demobilization and reintegration of former combatants into society. E.g. Hutu and Mayi-Mayi militias returned. Among former Hutu warlords Mayanga, Rugayi along with 1500 of their child soldiers

24. Integrative Truth-seeking