Transformative Justice: Charting a Path to Reconciliation

Abstract

When nations transition from oppressive and lawless regimes to democratic ones they face myriad challenges. As an anxious public and an impatient world look on, they must create new governing bodies, write new laws and repeal old ones, redefine the balance of private and public power, and organize elections, just to name a few of the daunting tasks. But perhaps the greatest challenge facing these nascent liberal governments is one that receives insufficient attention: if the values of the new government are to take root, the new leaders must also transform the culture in which they operate.

This article argues that there is a difference between mere transitional justice and effective transformative justice, explaining the importance of the transformational dimension of justice with particular attention to the role of reconciliation. Institutions of transitional justice are most likely to be transformative if they are tailored to the time and place in which they operate, and are responsive to the specific transitional conditions that exist.

The article then applies the theory of transformative justice to two distinct responses to national trauma: the South African Truth and Reconciliation Commission that was designed to respond to the end of apartheid and the gacaca courts in Rwanda in the aftermath of the 1994 genocide in that country. Because the TRC and the gacaca courts are distinguishable in every meaningful respect, they illustrate, when considered together, the broad and creative possibilities of the middle path of transformative justice.

Keywords: Transformative Justice, Transitional Justice, Human Rights, Rwanda, South Africa, Truth And Reconciliation Commissions, Gacaca Courts

JEL Classification: K10, K1