Indigenous Transitional Justice in Perspective: The Case of Mozambique
Kwarkye Gyedu Thompson
Transitional justice as a field is on the rise. Within a short period, the field has become one of the most dominating debates in rule of law, human rights protection, democracy and nation building particularly in societies that are undergoing some sort of transition (i). Throughout its development, transitional justice has broadened to include a wide range of legal mechanisms (sometimes with international, local or hybrid institutions) with the aim of putting at the centre stage alternative legal structure for dealing with violence, mass atrocities and truth recovery. Particularly, the use of local and indigenous institutions in Somalia, Uganda, South Africa, Mozambique and the like have dominated scholarly debates on transitional justice in recent years (ii). It is against this background that this paper uses the case of Mozambique to argue that, indigenous legal processes may capture the meaning of conflict in ways that state/formal/international based processes may not necessarily be able to capture.
The Mozambican civil war that lasted nearly two decades was one of the bloodiest civil war in Africa (iii). On the 4th of October 1992, a General Peace Agreement was signed in Rome between the Mozambican government (Frelimo) and former rebel group Renamo. The peace agreement brought immense socio-political changes, however in transitional justice perspective, the Mozambican authorities never developed any policy or program aimed at reparation of victims while dealing with perpetrators of war crimes. The victims after much abuse, torture and killing were simple asked to forgive and forget as a way of building a stronger national reconciliation and peace (iv) Barely two weeks after the peace agreement was signed, the Mozambican General Assembly Promulgated Law 15/95 which sort to give amnesty to all individuals that committed crimes during the period of the civil war (v) The immediate effect was that victims and perpetrators had to live with each other in the same communities where war crimes were committed. The end product was the feeling of revenge on perpetrators by the victims.
In spite of the lack of any formal transitional mechanisms for war victims in Mozambique, the victims of the Gorongosa district were not alone. They used socio-cultural practices (the use of magamba spirits by magamba healers) as a means of resolving these abuses and injustices without setting in motion the feeling of revenge and physical violence. The magamba spirits are the only post-war phenomenon that is closely related to transitional justice in Mozambique. The spirits are believed generally to be the spirits of the dead soldiers (mostly males) that return to the living to fight for justice (v) The magamba spirits play important roles in healing war-related wounds and achieving restorative justice among victims, perpetrators and survivors of the war. The spirits engage in the past to create post-war healing of wounds related to the war. Magamba healers often argue that, if the spirits have to be dealt with successively, then the violent past cannot be ignored. Initially, the spirit causes tremendous suffering, however, this suffering is transformed into the power of healing (v)
In many parts of Mozambique including the Gorongosa district, people live in the belief that the death of an individual through traumatic or illegitimate killing is a crime that requires immediate redress through rituals. If perpetrators do not admit wrongdoing, the spirit of the dead victim will return to the living realm in the form of spirit to struggle for justice. This dead spirit of the victim can possess anyone so long as the individual or her/his family have a history of violent abuse or illegitimate killings (v). This random possession on individuals is a key feature of the magamba spirits.
The silence on human right abuse coupled with the impunity that characterized post-civil war Mozambique allowed magamba spirts to create an avenue where alienated families came together to address war-related disputes. In order for justice to be restored, a healing ceremony was conducted under the close supervision of the magamba healer. Often, the role of the healer is to ensure smooth performance of the ceremony and to convince the magamba spirits that is lodged in the body of a patience to manifest itself in public (v)
From the discussion above we can argue that traditional healing practices with magamba are holistic in that they include a healing process, restorative justice and reconciliation.
Strengths and Weaknesses of Traditional Justice Mechanisms
The emergence of traditional or indigenous mechanisms in transitional justice processes is an attempt to respond to violent crimes during conflicts, authoritarian governments’ regimes and crimes against humanity. It has provided deeper understandings into the need to differentiate between ‘transitional symbols and material reparations’ (vi). The case of Mozambique, in particular, has provided the opportunity for indigenous justice and healing mechanisms to be tested as a sole technique in judicial processes in transitional justice perspective.
As noted above, indigenous mechanisms may become the only alternative for reparation, reconciliation, restorative justice and peacebuilding. The Mozambican case provides a very good example of a total neglect of formal, state peacebuilding efforts in investigating crimes of the past, human right abuses and crimes against humanity. The civil war weakened social capital and for many years contributed negatively in building truthful relations among family members and members of the community. Most community members wanted to forget the horror of the war and decided to take refuge in silence. However, the gamba spirit embodies the value that extreme suffering and violent killings will never end unless they are properly addressed (v). In this context, the magamba spirits broke the silence that state authority has built in order to forget the past. As argued by Igreja (2008), ‘the gamba spirit challenges the prevailing politics of denial and compels war survivors to deal with some of their unsettled war disputes’. The magamba spirits provide the avenue for torn apart families to address aspects of the past as a foundation for building the future.
The dominance of traditional justice mechanisms in restoring justice and building peace also stem from the scholarly agreement that the state/formal, top-down approach in transitional justice alone is inadequate in accounting for past crimes, genocides, human right abuses etc. (vii). For example, Burundi, Nepal, Angola, South Sudan still languish at the bottom of Transparency Internationals Index on Corruption despite being recipients of enormous international attention (viii). This means that a more bottom-up approach with national ownership is vital to strengthen indigenous institutions and protect vulnerable groups. Moreover, refusal to include indigenous mechanisms in a transition from violence to peace have proven impossible as in the case of Peru, Burundi, Uganda and South Africa (ix). This is mainly due to the fact that indigenous mechanisms can help re-activate the process of truth telling (a value that may be lacking in societies that are deeply divided by violent conflict). It could also help integrate perpetrators of crimes into society even before the state can compose a responds to crimes as illustrated in the Mozambican case. This coupled with local ownership of indigenous transitional justice mechanisms remove the feeling of external interference in countries that have encountered insensitive cultural customs by external actors.
Generally speaking, also, some conflict situations in local social context may not necessarily require state intervention or formal legal structures. In many parts of the world majority of legal disputes are often resolved outside the state legal structures through indigenous institutions such as traditional authorities, spiritual healers, family or clan heads and the likes. More particularly, in areas where no functioning justice systems are available, indigenous institutions tend to fill the gap (x). This does not, however, mean indigenous institutions are poor substitutes for the state, rather it could be referred to as something that is deeply rooted within local lives. Beyond their evident utility, customary laws might have spiritual roots that resound with the indigenous worldview. Indigenous justice also tends to be more affordable, accessible and responsive on accounts of its informality and proximity comparative to state justice mechanisms. Finally, indigenous justice systems tend to deal with every day and ordinary issues most appropriate for, resolution at the local levels such as family, land and community disputes, domestic violence among others. The indigenous mechanism also integrates cases that criminal justice systems may not necessarily be able to deal with including sorcery, supernatural dealings, family break-ups that can bitterly divide societies, customary disputes on succession to kinship, custody over land etc. (vii).
On the other end of the spectrum are some criticisms levelled against indigenous justice mechanism. Human rights abuses tend to be the foremost criticism when it comes to indigenous transitional justice. Traditional justice is often characterised by, false imprisonment, miscarriage of justice, torture and payment of blood money that may affect the physical or psychological well-being of a victim (vii). Even in situations where restorative justice processes are required, the system can still abuse the rights of vulnerable groups in society.
Again, indigenous justice systems may be patriarchal in nature thereby precluding the role of women in decision making. For instance, women killed during the Mozambican civil war are unable to return as magamba spirits. Only the spirts of male soldiers can do so. In this sense, even though the use of magamba spirts broke the silence of the past, the form of justice they administer turned to be male dominated thereby enforcing patriarchy especially in a society that is struggling for gender equality. (v). Within this context, therefore, there is the need for the establishment of socio-political institutions that will account for addressing this gender bias.
Manipulation by elite groups, politicians and the government may render the indigenous justice mechanism inappropriate. Indigenous justice mechanisms provide a clearer evidence of inert tolerance, where some instances may be manipulated by the political elite to satisfy their own interest. This is clearly indicated within the Gorongosa district communal emphasis on magamba spirits and healers. Critics often use the Mozambican case to draw attention to the fact that in post-conflict societies, such post-war phenomena are likely to be used to make decisions by the political elite for amnesty, silence and exemption from punishment. While the use of non-judicial methods of transitional justice is often met with little animosity, there is the need for formal accountability in order to ensure that all aspects of post-conflict suffering are recognized and subsequently addressed (v).
Transitional justice in post-civil war Mozambique was founded on the principle of silence and denial. However as illustrated above, in overcoming past crimes among victims and perpetrators, indigenous mechanisms provided the opportunity for healing, justice and reconciliation in one of the epicentres of the civil war. Magamba spirits more specifically created the social avenue to break the silence of individual, families and communities to come together to address the legacies of the violent past. The Mozambican case provided the opportunity for scholars to test indigenous transitional justice mechanisms as a sole mechanism in peacebuilding efforts. Indigenous mechanisms may be appropriate for transitional justice methods in that, it allows for local ownership while at the same time reducing the feeling of external interference. It may also be helpful in truth-telling, reconciliation and integrating perpetrators of crimes into society. However as pointed out in the discussions above, it could also be manipulated by political elites, human right abuses and gender imbalances.
In this sense, therefore, continuous research by scholars into indigenous mechanisms especially with identifying structures that could be incorporated into formal transitional justice mechanisms may go a long way in improving debates of transitional justice.
Annan, K., 2004. The rule of law and transitional justice in conflict and post-conflict societies. UN doc. S/2004/616, 23, pp.80-82.
Arthur, P., 2009. How" Transitions" Reshaped Human Rights: A Conceptual History of Transitional Justice. Human Rights Quarterly, 31(2), pp.321-367.
Baptista Lundin, I., 2002. Uma Leitura Analítca sobre os Espaços Sociais que Moçambique Abriu para Acolher e Cultivar a Paz. Mazula, Brazão (Coordenação) ua: Moçambique. Dez Anos de Paz, Maputo (CEDE), pp.95-138.
Barfield, T.J., Nojumi, N. and Thier, J.A., 2006. The Clash of Two Goods: State and Non-State Dispute Resolution in Afghanistan
Bell, C., 2009. Transitional justice, interdisciplinarity and the state of the ‘field’or ‘non- field’. International Journal of Transitional Justice, 3(1), pp.5-27.
Bizos, G., 1998. No One to Blame?: In Pursuit of Justice in South Africa (No. 90). New Africa Books.
Cohen, S., 2013. States of denial: Knowing about atrocities and suffering. John Wiley & Sons.
De Bortoli, B., 2014. Transitional Justice Mechanisms: A Case Study of Sierra Leone and Mozambique. Journal Article| March, 13(2), p.12am.
Elster, J., 2004. Closing the books: Transitional justice in historical perspective. Cambridge University Press.
Fearon, J. and Laitin, D., 2005. Mozambique.(draft).
Hanlon, J., 1991. Mozambique: Who calls the shots?. James Currey.
Hayner, P.B., 2001. Unspeakable truths: Confronting state terror and atrocity. Psychology Press.
Hobsbawm, E. and Ranger, T. eds., 2012. The invention of tradition. Cambridge University Press.
Huntington, S.P., 1993. The third wave: Democratization in the late twentieth century (Vol. 4). University of Oklahoma press.
Igreja, V., Schreuder, B.J.N. and Kleijn, W.C., 2004. The cultural dimension of war traumas in central Mozambique: The case of Gorongosa.Psychiatry On-Line.
Igreja, V., 2008. Restorative justice and the role of magamba spirits in post-civil war Gorongosa, central Mozambique.
Igreja, V., Dias‐Lambranca, B. and Richters, A., 2008. Gamba spirits, gender relations, and healing in post‐civil war Gorongosa, Mozambique. Journal of the Royal Anthropological Institute, 14(2), pp.353-371.
Kritz, N. (ed.) (1995), Transitional Justice: How Emerging Democracies Reckon with Former Regimes, Washington DC: United States Institute for Peace Press.
Mac Ginty, R. and Richmond, O.P., 2013. The local turn in peace building: A critical agenda for peace. Third World Quarterly, 34(5), pp.763-783.
Mallinder, L. (2008), Human Rights and Political Transitions: Bridging the Peace and Justice Divide, London: Hart Publishing.
McAuliffe, P., 2013. Romanticization versus Integration: Indigenous Justice in Rule of Law Reconstruction and Transitional Justice Discourse. Goettingen J. Int'l L., 5, p.41.
McEvoy, K., 2007. Beyond legalism: towards a thicker understanding of transitional justice. Journal of Law and Society, 34(4), pp.411-440.
Office of the High Commissioner of Human Rights (2009), Analytical Study on Human Rights and Transitional Justice, A/HRC/12/18, Geneva: United Nations.
Ogbokwe, V.C., 1998. Socio-Cultural Dimensions of Dispute Resolution: Informal Justice Processes among the IBO-Speaking Peoples of Eastern Nigeria and Their Implications for Community/Neighbouring Justice System in North America. AfrJ. Int'l &Comp. L. 10, p.446.
Patel, A.C., De Greiff, P. and Waldorf, L. eds., 2009. Disarming the past: transitional justice and ex-combatants (Vol. 4). Social Science Research.
Shaw, R., Waldorf, L. and Hazan, P., 2010. Localizing transitional justice: Interventions and priorities after mass violence. Stanford University Press.
Teitel, R.G., 2003. Transitional justice genealogy. Harv. Hum. Rts. J., 16, p.69.
Theidon, K., 2006. Justice in Transition The Micropolitics of Reconciliation in Postwar Peru. Journal of Conflict Resolution, 50(3), pp.433-457.
Unruh, J.D., Heynen, N.C. and Hossler, P., 2003. The political ecology of recovery from armed conflict: the case of landmines in Mozambique. Political Geography, 22(8), pp.841-861.
Villalba, C.S., 2011. Transitional Justice: Key Concepts, Processes and Challenges. Institute for Democracy and Conflict Resolution, Briefing paper,2.
Waddell, N. and Clark, P. (2008), Courting Conflict: Justice, Peace and the ICC in Africa, London: Royal African Society.
- McEvoy, K., 2007. Beyond legalism: towards a thicker understanding of transitional justice. Journal of Law and Society, 34(4), pp.411-440. Available at http://weblaw.haifa.ac.il/he/Faculty/Kedar/lecdb/general/transitionaljustice.pdf Accessed on 17/06/2016
- Igreja, V., Schreuder, B.J.N. and Kleijn, W.C., 2004. The cultural dimension of war traumas in central Mozambique: The case of Gorongosa.Psychiatry On-Line. Available at http://www.priory.com/psych/traumacult.htm Accessed on 14/5/2016
- Unruh, J.D., Heynen, N.C. and Hossler, P., 2003. The political ecology of recovery from armed conflict: the case of landmines in Mozambique. Political Geography, 22(8), pp.841-861. Available at https://www.researchgate.net/profile/Peter_Hossler2/publication/223349172_The_political_ecology_of_recovery_from_armed_conflict_The_case_of_landmines_in_Mozambique/links/543400090cf294006f734359.pdf Accessed on 5/06/2016
- Cohen, S., 2013. States of denial: Knowing about atrocities and suffering. John Wiley & Sons. Available at https://books.google.dk/books?hl=en&lr=&id=wUWaAAAAQBAJ&oi=fnd&pg=PT9&dq=States+of+denial:+Knowing+about+atrocities+and+suffering&ots=EHOcs4QOcJ&sig=oXCNUgFuNhIq6diWTj7KZNxERdU&redir_esc=y#v=onepage&q=States%20of%20denial%3A%20Knowing%20about%20atrocities%20and%20suffering&f=false Accessed on 1/05/2016
- Igreja, V., 2008. Restorative justice and the role of magamba spirits in post-civil war Gorongosa, central Mozambique. Available at http://www.idea.int/publications/traditional_justice/upload/Chapter_3_Restorative_justice_and_the_role_of_magamba_spirits_in_post-civil_war_Gorongosa_central_Mozambique.pdf Accessed on 3/04/2016
- De Bortoli, B., 2014. Transitional Justice Mechanisms: A Case Study of Sierra Leone and Mozambique. Journal Article| March, 13(2), p.12am Available at www.smallwarsjournal.com/printpdf/15395 Accessed on 13/06/2016
- McAuliffe, P., 2013. Romanticization versus Integration: Indigenous Justice in Rule of Law Reconstruction and Transitional Justice Discourse. Goettingen J. Int'l L., 5, p.41. Available at http://www.gojil.eu/issues/51/51_article_mcauliffe.pdf Accessed on 5/6/2016
- Mac Ginty, R. and Richmond, O.P., 2013. The local turn in peace building: A critical agenda for peace. Third World Quarterly, 34(5), pp.763-783. Available at http://samples.sainsburysebooks.co.uk/9781317989707_sample_827367.pdf Accessed on 6/5/2016
- Theidon, K., 2006. Justice in Transition The Micropolitics of Reconciliation in Postwar Peru. Journal of Conflict Resolution, 50(3), pp.433-457. Available at http://dev.wcfia.harvard.edu/sites/default/files/Theidon_Justice.pdf Accessed on 5/5/2016
- Ogbokwe, V.C., 1998. Socio-Cultural Dimensions of Dispute Resolution: Informal Justice Processes among the IBO-Speaking Peoples of Eastern Nigeria and Their Implications for Community/Neighbouring Justice System in North America. Afr. J. Int'l &Comp. L., 10, p.446. Available at http://heinonline.org/HOL/LandingPage?handle=hein.journals/afjincol10&div=33&id=&page= Accessed on 6/6/2016