6 July 2009
opinion
When in 2003 Liberia was at the critical juncture of transitioning or breaking, Liberian peace stakeholders and international mediators decided that Liberia's path to peace will be a truth and reconciliation process - not prosecution in search of so-called justice. This decision was not advised by fear of reprisal; it was compelled by due circumspection for the greater good of Liberia and Liberians. And it should have sealed the covenant path to peace; but unfortunately it didn't, it hasn't.
A few Liberians remained locked in vindictiveness, and they are using the very TR process to gain relevance - to settle scores - and the Truth and Reconciliation Commission (TRC) has become the trumpeter.
"But is TRC not turning the peace process upside down or torpedoing it?" observers say is the begging question."
The Analyst Staff Writer leafs through the Commission's final report.
The TRC has submitted its final report to the National Legislature, minus the signature of one commissioner and with little guarantee for the one thing that matters most to the Liberian people - peace and reconciliation without further hullabaloo.
The report, released last Thursday, calls for prosecution, political banishment, and reparation exacting, but to the bewilderment of many, mute on natural processes leading to genuine healing, reconciliation, and peace.
Observers say given these early signs of fundamental shortfall, the report's significance was likely to be overshadowed by legitimacy concerns. Due to this also, they say, the overall credibility of the TRC as a trailblazer for peace and reconciliation after a decade of mayhem and destruction is likely to be thrown into serious question.
If it does, they surmise, the whole process that involved thousands of Liberians, million of research and statement taking hours, international financial and technical support, the meager resources of the Liberian government, and the anxiety of vulnerable Liberians would be an exercise in flamboyancy and in vain.
Mandate Vs Recommendation
The TRC was mandated by an Act of the National Legislature under Art IV, Section 4 of the TRC Act, to foster truth, justice and reconciliation by identifying the root causes of the conflict, and determining those who are responsible for committing domestic and international crimes against the Liberian people.
It was to, amongst other things, identify victims and perpetrators of the conflict and most importantly establish a forum to facilitate constructive interchange between victims and perpetrators to recount their experiences in order to foster healing and reconciliation. It was also to investigate economic crimes and other forms of human rights violations and determine whether these violations were part of a systematic and deliberate pattern of violations or isolated events of violations.
Finally, it was to make recommendations to the Government of Liberia for prosecution, reparation, amnesty, reconciliation and institutional reforms where appropriate to promote the rule of law and combat impunity.
Analysts say the Mandate's call for a forum to facilitate constructive interchange between victims and perpetrators to recount their experiences in order to foster healing and reconciliation affirms Article XIII of the Accra Comprehensive Peace Agreement, which Liberians and the international community consider the rallying point for peace building in postwar Liberia.
According to them, while prosecution, reparation, and amnesty would be applied where necessary and mandatory in order to promote the rule of law and combat impunity or non-compliance amongst perpetrators, the TRC mandate weighed heavier on a palava-hut settlement than on law and prosecution for reason the queer nature of Liberia's war.
TRC's Determinations
The report determined that the root-causes of Liberian conflict were poverty, the centralization of power and oppressive class dominance, the lack of the rule of law, the duality of Liberia's political, social and legal systems, and ethnicity. But it concluded that the way to remove these social vices was to prosecute, banish from the political process, and exact reparation from those who were suspected of committing war excesses and sabotaged the economy at one point or the other.
Altogether, there are some 94 individuals and institutions slated for "further" investigation and possible prosecution based on the Commission's suspicion, according to the TRC final 370-page report.
These include a list of 54 individuals and corporate entities that the TRC determined must be further investigation; 19 corporations, institutions and state actors suspected of being responsible for committing economic crimes; and 21 individuals responsible for committing economic crimes.
"Prosecution in a court of competent jurisdiction and other forms of justice, including public sanctions, is sine qua non to sustaining the fight against impunity, the promotion of justice, and genuine reconciliation....[they] are desirable and appropriate mechanisms to promote the ends of justice, peace and security, foster genuine national reconciliation and combat impunity," the report insists.
It said this, having determined that "all warring factions are responsible for the commission of gross human rights violations in Liberia, including war crimes, crimes against humanity, domestic criminal laws".
Notwithstanding its insight on the matter, the report fell short of saying who these individuals were, why they must be prosecuted in order for Liberia to heal naturally, what the alternatives and options were, and what is likely to happen when instead of prosecution, the individuals were monitored for future brush with the law.
The report then threw the public into a frenzy of debate about fairness and proper determination when it listed as "less significant violator group" institutions that were long determined to be instruments of political suppression and oppression, economic degradation, and class domination in prewar Liberia.
For instance, according to one analyst, the report listed the Liberian National Police, the notorious Special Anti-Terrorist Unit (SATU), the SSS, the CID, NSA, NBI, and the Special Operation Division of the LNP (SOD) as of lesser evils. It then recommend to the Liberian government the full and timely implementation of all the recommendations.
"The full and timely implementation of these recommendations is critical to Liberia's recovery and progress beyond the conflict and will contribute to the building of a more just and equitable society in which everyone is equal before," the report said without bothering to say why and how.
Extraordinary Criminal Court for Liberia
The TRC has meanwhile sent to the Liberian government what it called "Statute Establishing the Extraordinary Criminal Court for Liberia". The tribunal, according to the draft statute, is being recommended to in order to implement the recommendation of the TRC, to combat the culture of impunity, and secure justice for victims. It is also to ensure that Liberia adheres to, respects and protects prevailing international human rights and humanitarian law standards.
"The Court shall have all of the necessary power and jurisdiction to prosecute persons referred to it by the TRC for gross violations of human rights (GVHR), serious humanitarian law violations (SHLV) and egregious domestic crimes (EDC) as enumerated by this Statute," the report said.
It is not clear whether or not the Commission has ample admissible evidence to prosecute its horde suspects, but it noted in its "final statement" that was mindful that the individuals, groups of persons, institutions and corporate entities listed do not represent the entirety of economic crime or economic criminal actors that committed violations during the TRC's temporal mandate.
Why was the list inconclusive? The report did not say; but already, the public is using the omission to build a case of biasness against the commission, which has already begun taking punches from pro- and anti-prosecution advocates. But the report continued, "The TRC believes that further investigation and legal proceedings will likely uncover additional evidence of economic crime."
It then disclosed that the report was compiled against two contradictory backgrounds: the first being against rising expectations, fears and anxiety of victims and the second being against alienation, prosecutions and other forms of public sanctions by those who reportedly commanded the forces of arms, financed, resourced and provided political and ideological guidance to several warring factions.
Prosecution and the Burden of Proof
But observers say the degree to which the Commission holds Liberia's recovery and reconciliation to criminal prosecution to the neglect of community processes and social healing was not only unnatural and score-settling, but that it also overlooked major bottlenecks and frustration associated with legal prosecutions.
This, they say, comes into play mainly where the security and protection of witnesses who are likely to be the very victims and the adducing of evidence in the court is concerned.
In their view, the reason was not the dislike of justice as the way to peace and reconciliation, but the determined by experience and the uniqueness of the Liberia civil war that the sole reliance on prosecution and punitive approach would not bring peace, let alone to reconcile a nation whose social divide goes back a 150 years.
"The social divide is the sole cause of the civil war. Once it is systematically tackled, this nation will be healed for this and all times. For the TRC to recommend the prosecution of the victims of that divide in order to restore sanity to the nation is like treating the symptom and whitewashing the cause. This is an error of judgment. And not only that, it mutates the Commission into an inquest or inquiry commission and not one for reconciliation and healing," said one observer.
He said it was not sufficient to determine what caused the war, identify the perpetrators and victims of the war, claim a violation of international law, and conclude that by prosecuting more than 25% of the population, exacting reparation from another 50%, and banishing a significant portion of the political class from public service or participating in political activities and expect peace and reconciliation to flow naturally to Liberia.
"You have to be circumspect and ask critical questions about security, social harmony during the prosecution process, pre- and trial jurisdiction and detention of the accused, technical support and maintenance of the detention facilities and determination of trial period, and most of all the determination of cost and benefit to the Liberian people. "
All these have to be determined. It does not serve the nation well to just make claims and claim to be acting in the interest of justice. What justice do you get when you prosecute one person and make a thousand cantankerous others?" he wondered.
He said it was easier to condemn the public felon than it was to prosecute him. "Granted warlords and their militias are believed to have brutally maimed, disemboweled, decapitated, and killed their victims in the most brutal ways imaginable, but who has the evidence to prosecute half of these people?
"Who has prima facie evidence to present in a court of law to prosecute those who allegedly committed massacres in Lofa, Nimba, River Gee, Bomi, Margibi, Montserrado, and elsewhere in Liberia? Won't the lack of prosecution evidence defeat the cause of the so-called Extraordinary Criminal Tribunal and set the nation deeper into despair and suspicion?"
He said it was not who did what but who can convince the court through concrete exhibits that what was alleged was actually done by the accused. "Does the TRC have any such evidence for the 94 persons and institutions whose prosecution it is demanding as the way to reconciliation?"
Internal Dissent
As though public outcry against the deviation, inadequacy, and in some aspect, overbearing of the TRC report was not disappointing enough, The Analyst has learnt that the report was opposed on many points even before it came to public.
"I did not sign the Consolidated FINAL REPORT, Volume II of THE Truth and Reconciliation Commission of Liberia, and dissent to said Reports..." said Commissioner Cllr. Pearl Brown Bull in a dissenting opinion against the TRC Final Report.
The dissension, dated June 30, 2009, is titled, "Dissenting/Report of Cllr. Pearl Brown Bull Commissioner, to the Final Report Volume 1, Consolidated Final Report Volume 11 of the Truth and Reconciliation Commission of Liberia". The political scientist and Quinnipiac Law School, Connecticut, USA graduate who has been practicing law since 1982 said she was compelled to dissent the report because primarily it flaunts the laws of Liberia.
"The TRC Decisions on prosecution and lustration emanating from the TRC Public Hearings; The Advocates for Human Rights (USA) Diaspora Report; The National Conference on Reconciliation, convened by the TRC, and Co-Chaired by the Governance Reform Commission and 'additional research findings' from others, are not in consonance with [the law]," the former clerk of the Supreme Court and former vice president of the International Federation of Female Lawyers said.
She said the legal instruments of the nation that were flouted by the report included the 1986 Constitution of the Republic of Liberia, the Act to Establish the Truth and Reconciliation Commission (TRC) of Liberia, and the revised rules and procedures of the TRC of April 2007.
Others, according to her, were the act to grant immunity from both civil and criminal proceedings against all persons within the jurisdiction of the Republic of Liberia from acts or crimes committed during the civil war from December 1989 to august 2003 as published in August 8, 2003 and the Supreme Court of Liberia, Decision, Bull Versus The TRUTH And Reconciliation Commission decided January 30, 2009.
Still others, she said, were the results from Beneficent Technology (Benetech) Data base, an American hired company in the United States of America who worked with the TRC Commission, and the Comprehensive Peace Agreement between the Government of Liberia and The Liberians United For Reconciliation And Democracy (LURD), The Movement For Democracy In Liberia (MODEL) and Political Parties, Accra, Ghana, 18th August 2003.
"I cannot concur with my Fellow Commissioners that 'Prosecution in a Court of Competent Jurisdiction and other forms of Public sanction will foster genuine reconciliation, combat impunity to promote justice, peace and security' for any person or persons whether military or civilian who committed crimes or Acts within the period covered 1980- to the adoption of the 1986 Constitution," she said.
She said while seeking to establish justice, the flouting of the law in order to gain justice would not only throw the peace process into jeopardy, but that also it would betray the trust of the Liberian people in the laws of the law. According to her the TRC final report blatantly violated Article 97 (a) and (b) of the 1986 Constitution of Liberia. The article in question provides protection from prosecution of individuals suspected of committing crimes during the military coup and civil war eras.
"I consider it relevant to quote the entire Act enacted by the Senate and the House of Representatives of the Republic of Liberia, August 7, 2003, with Executive Approval on April 8, 2003, by the President of the Republic of Liberia, Dahkpannah Dr. Charles Ghankay Taylor," she noted further.
Titled "An Act to Grant Immunity from Both Civil and Criminal Proceedings against All Persons within the Jurisdiction of the Republic of Liberia From Acts Or Crimes Committed During The Civil War from December 1989 To August 2003, and published Authority, August 8, 2003", the Act reads: "It is enacted by the Senate and the House of Representatives of the Republic of Liberia in Legislature assembled...
"That from and immediately after the passage of this Act, Immunity hereby granted from both civil and criminal proceedings against persons, Officials of Government Representatives of Warring Factions and combatants within the jurisdiction of the Republic of Liberia from all acts, and or crimes committed by them during the 13 (thirteen) years and 8 (eight) months of the civil wars covering from December 1989 to August 2003."
The act aside, she said the report did not take cognizance of this Act in its findings, determinations and recommendations for prosecution and lustration in Volume 1 and The Consolidated Final Report, Volume II of the Truth and Reconciliation Commission of Liberia, emanating from the TRC Public Hearings.
Other reports she said the report ignored included the ; The Advocates for Human Rights( USA) Diaspora Report; The National Conference On Reconciliation, convened by the TRC, and Co-Chaired by the Governance Reform Commission and "additional research findings" from others.
Further justifying her dissention Cllr. Bull said the act to grant immunity from both civil and criminal proceedings against all persons within the jurisdiction of the Republic of Liberia from acts or crimes committed during the civil war from December 1989 to August 2003 was not repealed before the enactment of "The Act To Establish The Truth And Reconciliation Commission (TRC) Of Liberia" in 2005.
"Therefore, the act quoted herein is still in force within this jurisdiction, the Republic of Liberia. This Amnesty clause is a clear indication that the parties to the CPA Agreement opted for the Truth and Reconciliation Commission as an Alternative to a War Crime Tribunal... to document and acknowledge a legacy of conflict and human rights violation facilitate genuine healing in the spirit of national reconciliation for Liberia," she said.
She said the TRC emerged out of negotiated settlements in which there were no clear victors and that it would be out of place for the commission to try to achieve that which was not achieved by belligerent parties and human rights advocates at a time when Liberians would rather forget the past and forge ahead with unity and reconciliation.
In a related development, the a pressure group pressing for the establishment of a war crimes court to prosecute former Liberian warlords and their lieutenants says it is dissatisfied with the TRC report.
In the opinion of the group, the Commission falls far short of obtaining immediate justice for the Liberian people by first calling for the resignation of President Ellen Johnson-Sirleaf and those it considers key perpetrators of violence against the Liberian people.
The Analyst will bring you the group's contentions in subsequent reports.
With these disagreements and public outcry against a report that all Liberians had been waiting for to deliver peace and reconciliation, observers say the TRC has either torpedoed the peace process has turned it upside down. "But did it?" is the question many say will be answered in the next months as Liberians peruse the report.
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