A Critique of Rights in Transitional Justice: The African Experience

RETHINKING TRANSITIONS: EQUALITY AND SOCIAL JUSTICE IN SOCIETIES EMERGING FROM CONFLICT, pp. 31-45, Gaby Ore Aguilar & Felipe Gomez Isa, eds., 2011

Buffalo Legal Studies Research Paper No. 2012-032

18 Pages Posted: 10 Oct 2011 Last revised: 14 Nov 2013

Makau W. Mutua

SUNY Buffalo Law School

Date Written: 2011

Abstract

This chapter interrogates the concept and application of transitional justice as a medium for the reclamation of post-conflict states in Africa. While it argues that transitional justice is an important – often indispensable – process in reconstructing post-despotic and battered societies, it nevertheless casts a jaundiced eye at traditionalist human rights approaches. It contends that individualist, non-collective, or non-community, approaches to transitional justice have serious limitations. It posits that the Nuremberg model, on which the ICTR and ICTY were based, while instructive, is severely constrained for the African landscape. It therefore makes the case for a holistic transitional justice approach that includes not just the revenge and other accountability elements of criminal judicial sanctions, but also focuses on truth, reconciliation, institutional reforms, and reparations. This “ubuntu” approach of “community wholesomeness” is necessary to heal society and restore its balance.”

Keywords: Ubuntu, Africa, human rights, transitional justice, post-conflict societies, accountability, reconstruction, post-colonial, individualism, liberalism, capitalism, identity, community

Suggested Citation

Mutua, Makau W., A Critique of Rights in Transitional Justice: The African Experience (2011). RETHINKING TRANSITIONS: EQUALITY AND SOCIAL JUSTICE IN SOCIETIES EMERGING FROM CONFLICT, pp. 31-45, Gaby Ore Aguilar & Felipe Gomez Isa, eds., 2011 ; Buffalo Legal Studies Research Paper No. 2012-032. Available at SSRN: https://ssrn.com/abstract=1937903

Makau Mutua (Contact Author)

SUNY Buffalo Law School ( email )

626 O'Brian Hall
Buffalo, NY 14260-1100
United States
716 645-2311 (Phone)

Paper statistics

Downloads
373
Rank
62,798
Abstract Views
1,880