revealing what we are feeling : a critical assessment of ...€revealing what we are feeling” ......
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4th ECPR Graduate Student Conference, 4-6 July 2012, Bremen, Germany
Section 11: Law and Politics
Panel 55: Agency, Power and Representation: Transitional Justice between Identity Politics and Victims
Empowerment
Panel organisers: Eva Ottendörfer and Sandra Rubli
”Revealing what we are feeling”
A critical assessment of the national consultations in Burundi
By: Sandra Rubli, PhD candidate, University of Basel & swisspeace
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Draft. Please do not cite or circulate without the permission of the author.
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Abstract
Transitional justice has been gaining prominence in rebuilding post-conflict societies for the past two
decades. Most transitional justice advocates claim that the dealing with the past measures applied in a
country have to be locally-owned, victim-centred and participative in order to be effective. One
mechanism to involve victims and the general population in transitional justice processes are so-called
national consultations. The United Nations developed, within their series of rule-of-law tools, guidance
for such national consultations on transitional justice. In theory they should allow people affected by
past violence to express their views in order to identify their needs and to be agents in a transitional
justice process.
In order to enhance the appropriation of dealing with the past measures, to collect the views of
Burundians, and to take them into account in designing the transitional justice mechanisms, national
consultations were conducted in Burundi in 2009. This article critically assesses them in terms of their
ability to support agency of the population in the design and conduct of the country’s dealing with the
past process. Based on interviews with persons who have been consulted it appraises the national
consultation process and its stated goals. Do people feel that they and their views are represented?
Could the national consultations contribute to the appropriation of transitional justice mechanisms?
Moreover it looks at how the views expressed have influenced the design of the future Truth and
Reconciliation Commission and more generally have been taken into account in the dealing with the past
process.
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1. Introduction
Transitional justice has been gaining prominence in rebuilding post-conflict societies for the past two
decades. It has become an “almost automatic response to conflict and human rights violations” (Hazan,
2007: 10). Claims in the name of the victims and for the sake of justice, peace and accountability are
made by a variety of actors. Among international organizations, donors and transitional justice
advocates, a consensus seemed to have emerged, namely that states emerging from conflict should be
seen to choose “how much accountability when” rather than to choose between some accountability
and none (Bell, 2009: 120). Thus, today it is no longer an option whether to deal with a violent past or
not, but rather how and when to fulfil this task and which mechanism to deploy.
In the literature there are emerging critical debates on transitional justice where some claim that
transitional justice is generally externally imposed (Sriram, 2007), detached from local historical,
political, social and cultural realities (Sriram, 2007, Nagy, 2008) and promotes a rather Western inspired
model of retributive justice which does not draw on or correspond to local conceptions of justice,
reconciliation and peace (Van Zyl, 2005, Rubli, 2011a, Lambourne, 2009). However, partly in response to
those critiques, transitional justice advocates have started to claim that the dealing with the past
measures applied in a country have to be locally-owned, victim-centred and participative in order to be
effective (Betts, 2005). There is a growing consensus around the assertion that the success of transitional
justice experiences depends to a large extent on the quantity and quality of public and victim
consultations carried out (Secretary General, 2004: 7). Ideally, sufficient political and popular support has
to be generated prior to the establishment of truth commissions or tribunals (Van Zyl, 2005). One
mechanism to involve victims and the general population in transitional justice processes are so-called
popular consultations. In theory they should allow people affected by past violence to express their
views in order to identify their needs and to be agents in a transitional justice process (OHCHR, 2009).
Such national consultations on the establishment of transitional justice mechanisms were conducted in
Burundi in 2009. They aimed at involving the population in the national reconciliation process; creating a
favorable environment for the appropriation of the intended transitional justice mechanisms by the
population; and collecting the views of the population on the modalities of the establishment of the
transitional justice mechanisms (Comité de Pilotage Tripartite, 2010: 21).
This paper will draw on the conceptual debates in development studies on participation, and apply it to
the case study of Burundi in order to critically assess the national consultations which have taken place.
It will ask are the national consultations a means of giving agency to the population in the transitional
justice process? Could the population express their views, needs and aspirations? Have they been
represented and taken into account in the design of the succeeding transitional justice process? After
the first part, where I sketch out the conceptual part on participation, I give a short overview of the
Burundian transitional justice process and the development of the national consultations. The main part
looks critically at the national consultations from the perspective of ‘ordinary’ citizens1. How do they
perceive the goals of the consultations? Who has been consulted? Who conducted the consultations?
1 I use the term ‘ordinary citizens’ in order to denominate Burundians who have been interviewed as Burundian
citizens and not in their functions as officials or representatives of civil society organizations.
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What does it mean for the population to be consulted? How could they influence the future transitional
justice process?
Thereby this part of the paper is mainly based on interviews2 with persons who have participated in the
national consultation on the modalities of the establishment of the transitional justice mechanisms in
Burundi. Research was conducted in February 2011 with the help of civil society facilitators3 and a
research assistant. The majority of the interviews were conducted in Kirundi, Burundi’s national language
spoken in every part of the country. This means that the interviews were translated into French.
Assuming that one’s own positionality influences not only the way data has been gathered but
additionally might affect the content of the data, reflecting on the role of the interpreter is equally
important (Ficklin and Jones, 2009). This is especially important in ethnically divided contexts such as
Burundi, where two version of history exist and different expressions are used to designate the same
events. This has been taken into account when analysing the interviews. Moreover, talking about a
violent past and personal experiences might be painful for the interviewees. Therefore, in addition to
respecting common research ethics, the research assistant was carefully briefed, the questionnaire was
cautiously designed and interviewees were informed that they did not have to respond to emotionally
difficult questions. Although the number of total 17 interviews is far from sufficient to draw
generalisations, they nevertheless give a unique impression of how participants experienced the national
consultations.
2. Reflecting on Participation in Transitional Justice Processes
Both transitional justice scholars and practitioners acknowledge that participation and local ownership is
crucial to the success of a transitional justice process and its mechanisms (Betts, 2005). Local ownership
and consultation “are essential if transitional justice institutions are to be effective and lead to
sustainable results” (Van Zyl, 2005: 218). It is argued that in order to be effective, sufficient political and
popular support should be generated prior to the establishment of truth commissions. Like-wise the
effect of a well-functioning tribunal would be significantly reduced if it is viewed as an external
imposition which does not draw on or respond to local conceptions of justice (Van Zyl, 2005). As
transitional justice is also a process that shapes citizens’ understanding of justice and a re-foundation of
democracy, it must be based on the broad participation of victims and other citizens in the process of
designing as well as implementing transitional justice policies (Arenhövel, 2008: 580). Great importance
is also placed on local participation and ownership of transitional justice in various UN documents. The
UN considers that “the most successful transitional justice experiences owe a large part of their success
to the quantity and quality of public and victim consultation carried out”(Secretary General, 2004: 7,
para. 16). Moreover, local ownership is considered as crucial; due to the failures of the ad hoc tribunals,
the UN recommends that they “must learn better how to respect and support local ownership, local
2 In total 17 interviews have been conducted in various places in Burundi. Two communes in each province, in the
south, centre, east and west of the country, have been selected representing a commune that was heavily affected by the civil war and violence and a commune that suffered less from the violence. 3 One civil society representative identified in each commune the persons that have been conducted and facilitated
the meetings. On the civil society level, in each province a representative of one of the civil society organizations was nominated in order to serve as a focal point and distribute, together with the local authorities, the invitations (Comité de Pilotage 2010: 42).
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leadership and a local constituency for reform” (Secretary General, 2004: 7, para. 17). In addition to
claims of local ownership and participation, transitional justice advocates promote victim-centred
approaches and assert that they need to speak about and for victims (Madlingozi, 2010).
While the importance of local ownership and participation is acknowledged in the field of transitional
justice and ‘one-size-fits-all’ models and ‘top-down’ processes are increasingly challenged, this rhetorical
recognition of the virtues of local ownership, empowerment and participatory approaches seems in fact
to be implemented only in a vague, weak and rather ad hoc manner (Lundy and McGovern, 2008). Issues
of local ownership and participation are predominantly discussed in rather normative studies promoting
a bottom-up approach or traditional mechanisms focusing on which level might be appropriate for
certain transitional justice mechanisms or whether local communities have been sufficiently included
(e.g. Betts, 2005, Gready, 2005, Lundy and McGovern, 2008). Critical studies on underlying power
relations, legitimacy for whom and representation of the most marignalized are only starting to emerge
in transitional justice scholarship (Shaw et al., 2010, Palmer et al., 2010, Nagy, 2008). However, questions
of local ownership and participation have been widely and critically discussed in the field of development
and development studies. Therefore, I draw largely on those studies for the conceptual part of this
paper.
2.1. Participation and Local Ownership
Participation in post-colonial development programmes of government departments and parastatal
agencies gained prominence after criticisms of such programmes highlighted their monocratic, top down
and hierarchical nature (Brett, 2003). The roots of radical bottom-up participatory approaches can be
traced back to the social struggles, popular unrest and emergence of grassroots movements in the South
in the late 1960s and 1970s. Thus, they developed partly as a critique of the “perceived failure of North-
inspired and directed centralized, top-down or ‘blueprint’ approaches to development” (Lundy and
McGovern, 2008: 279). Often closely tied to liberation and emancipation struggles, participatory claims
focused on challenging dominant paradigms of knowledge control and production. They were based on
the belief that it is necessary for people to identify conditions of alienation and oppression and to
conceive of collective action to overcome (the reproduction of) them (Lundy and McGovern, 2008).
Agency was therefore placed at the centre of change. However, what began as a political issue has been
translated into a rather technical problem (White, 1996). By the beginning of the 1990s, participatory
theory transformed form an “expression of radical opposition to dominant elites” into a “means of
mobilising whole communities to monitor donor programmes and provide collective service” (Brett,
2003: 4). Today, participatory approaches have been mainstreamed in development and the neat
distinction between alleged benefits of bottom-up, people-centred, process-oriented, ‘alternative’
approaches and technocratic, blueprint planning of state-led development projects has been blurred
(Hickey and Giles, 2004). ’Participation’, ‘empowerment’ and ‘community-based processes’ have become
contemporary buzzwords (Lundy and McGovern, 2008).
Common definitions and understandings of the term ‘participation’ differ and consequently a whole
variety of practices and approaches can be carried out and legitimated under the label. Generally,
participation is understood in development rhetoric as a “process by which people, especially
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disadvantaged people, influence decisions that affect them” (Bhatnagar and Williams, 1992: 177) as
opposed to one where decisions are imposed on them by outside organisations or agencies (Brett, 2003).
Participatory action aims at facilitating the permanent ability to identify and analyse problems, the
formulation and planning of solutions, the mobilization of resources, the implementation of resources,
and at people themselves gaining control over the processes that affect their lives (Lundy and McGovern,
2008). In theory, the advantages of participatory approaches include better information about local
needs, capabilities and impact of programs, ways of adapting programs to local conditions, delivering of
needs-responsive services, mobilizing local resources, and ways of increasing public recognition of
(governmental) achievements and legitimacy (Bhatnagar and Williams, 1992). As participation is seen as
both an end and a means; people can expand their capabilities, increase their self esteem and improve
performance by obliging agencies and donors to involve users in decision-making and by subjecting the
activities to direct popular control (Brett, 2003). Being empowered4 local people generate and ‘do’ their
own ‘development’ that, therefore, will be sustainable after foreign donors leave (Lundy and McGovern,
2008). This involves a transfer of power from the dominant, decision-making actors and institutions to
those who are subordinated during the process. Participation in designing, conducting and implementing
is intended to form a part of a “wider emancipatory project by challenging the way in which knowledge is
constituted and validated” (Lundy and McGovern, 2008: 281). Approaches based on participation and
consultation can have the capacity to understand the “nitty-gritty” of intra-community conflict and
dynamics, create dialogue and assure context-specificity (Lundy and McGovern, 2008: 292).
However, the ‘participation orthodoxy’ (Hickey and Giles, 2004) has also been widely criticized. In
addition to studies evaluating the methodologies and techniques of participatory approaches (c.f.
Cleaver, 2001), critiques are emerging concerning the politics of the participation discourse (Cooke and
Kothari, 2001). For example, the edited collection Participation: The new tyranny (Cooke and Kothari,
2001) emerged from a conference looking critically at participation in development and reveals an
unease with the ‘participatory turn’ which has led to ritualistically undertaken participatory processes
which sometimes manipulate and harm those who are supposed to be empowered (see also Brett,
2003). White (1996) argues that the mainstreaming of participation and its apparently transparent
approach masks the fact that participation can take multiple forms and functions, and serve many
different interests. She identifies four different models of participation of which two are of particular
importance for this paper. Firstly, nominal participation with the function of display which serves the
donors’ interest in legitimating the process and the participants’ interests in being included. Secondly,
representative participation allows the local people a voice and is supposed to ensure sustainability of
outside intervention and leverage for the participants (White, 1996). While the four models are ideal
types, the form and function of participation are themselves a site of conflict; interests are diverse and
differ within communities (Cleaver, 2001) and power is involved in the negotiation to determine which
interests are favored over others and in the construction of interests themselves (White, 1996). White
concludes that the questions of who is involved, how and on whose terms need to be asked because
participation is always a political issue. Moreover, interests that are represented needs to be analyzed
4 Empowerment can be defined as a process in which people create or are given opportunities to control their own
destiny and influence the decisions that affect their lives by learning to identify their goals, to develop a sense of how to achieve them and to gain greater access and control over resources (Madlingozi 2010).
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and to recognize that (non-)participation never does occur in an open arena (White, 1996).
To conclude, we can learn from development studies that participatory approaches can constitute a way
of representing the population’s voices, needs and aspirations, can empower the people as agents and
have the potential to challenge patterns of dominance. However, we also learn that participation might
also be a means through which existing power relations are entrenched and reproduced, simply a
window-dressing for justifying interventions, or a way of legitimating certain interests which might not
be the ones expressed by the consulted groups or are minority within communities.
2.2. Participation in Transitional Justice
Transitional justice is rarely a democratic process. Often provisions for transitional justice are set in
peace agreement negotiations between armed groups, political parties, governments and international
actors. Although victims are among the primary beneficiaries and constitute a key stakeholder in
transitional justice processes (Sisson, 2010), they are mostly excluded from the planning and designing of
transitional justice processes and almost never represented in peace negotiations. This ‘democratic
deficit’ often lies at the center of the critiques of ‘hegemonic’ international approaches including
transitional justice interventions (Lundy and McGovern, 2008: 275). This raises questions of agency, of
who engenders and controls change, about power relations and the legitimation of dominant interests
(Lundy and McGovern, 2008). Thus, the question emerges of how far transitional justice processes are
designed to meet the needs of those they claim to be designed for. Recently debates about ‘localizing
transitional justice’ and ‘transitional justice from below’ have emerged partly as a critique of transitional
justice from above (Shaw et al., 2010, McEvoy and McGregor, 2008). Such approaches focus on praxis of
grassroots actors who take on transitional justice responsibilities themselves, and explore local efforts at
truth recovery or reconciliation (e.g. McEvoy and McGregor, 2008). They certainly can assure the
participation of victims and take into account their needs and concerns. However, often such initiatives
emerge because of the failures to put in place state-led transitional justice mechanisms (McEvoy and
McGregor, 2008) or they remain on the local level.
In order to enhance local participation and local ownership of national transitional justice strategies, the
international community often relies on local civil society. Civil society organizations are viewed to be
ideally placed to represent the local population and to create local ownership. They are perceived as the
ideal vehicles for delivering reconciliation (Pankhurst, 1999: 246). Underlying this claim of representation
and empowerment is the belief that people who depend on those civil society organizations would have
real leverage over their activities (Brett, 2003). However, the concept of civil society is much disputed. In
contrast to widely held beliefs, civil society organizations are “often urban based, operate in a top-down
manner and are not necessarily democratically organised, nor do they always maintain cross-ethnic
relations” (Goetschel and Hagmann, 2009: 63). NGOs usually do not have a representative membership
base, but instead the leadership of the organization itself identifies ‘stakeholders’ and ‘beneficiary
communities’ that it would like to ‘provide’ and ‘deliver’ certain services and to ‘empower’ (Madlingozi,
2010: 221). Regarding participation and empowerment, this can mean that one gets a fictitious view of
local participation (Lundy and McGovern, 2008), biased or contorted views of the population. Partly
based on this conceptualization of a ‘good’ civil society stems the assumption that there would be a
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demand from ‘below’, from the population and from local civil society organizations for accountability in
post-conflict contexts. However, Subotić (2009) rightly challenges this assumption that states will adopt
international justice models because their domestic constituencies will demand it. Indeed civil society
organizations in Burundi played an important role in promoting transitional justice: By being directly
involved in conducting the national consultations, they have become strengthened (Rubli, 2011b).
However, they do not necessarily represent the stakes of the victims or the local population. Therefore,
this paper is focused more on the perspectives and views of ‘ordinary’ citizens and how they experienced
the national consultations in Burundi.
2.3. Consultations on Transitional Justice
Besides relying on local civil society organizations, one mechanism to involve victims and generally the
population in transitional justice processes are so-called national consultations. They should allow
people affected by past violence to express their views in order to identify their needs and to be agents
in a transitional justice process (OHCHR, 2009). The UN Office of the High Commissioner of Human Rights
(OHCHR) developed, within their series of rule-of-law tools, guidance for such national consultations on
transitional justice (2009). The guidance tools assert that international Human Rights law requires
national consultations to be undertaken5 (OHCHR, 2009). In the same direction Kenny argues: “the right
to participate in decisions which affect one’s life is both an element of human dignity and the key to
empowerment – the basis on which change can be achieved. As such, it is both a means to the
enjoyment of human rights, and a human rights goal in itself” (Kenny, 2000). While international human
rights law entails consultations, a negatively expressed right – the right of the individual not to
participate in consultations if that is what he/she chooses – can be derived from the protection of a
person’s privacy6 (OHCHR, 2009). According to the UN guidance tools national consultations can serve as
the basis for or feed into existing transitional justice programs, or can even provide options that have not
originally been identified. However, questions have to acknowledge the constraints of international law,
for example the exclusion of amnesty for acts of genocide, crimes against humanity or war crimes
(OHCHR, 2009, Accord cadre, 2008). Concerning the form of the consultations, the guidance states that
consultations in the 1990s took mainly a qualitative approach, but quantitative methodologies or even a
mixed methods design might be used. Further the tool elaborates on the preparation of consultations
stressing the importance of sensitization, the questions of when and where to consult and for how long,
and on issues of protection, reporting and follow-up. Finally, and for this paper focusing on agency,
power and representation the most crucial, the issues of who should conduct the consultations and who
should be consulted are addressed. The guidance tool suggests that consultations should be conducted
by independent experts “who do not have any organizational or political stake in specific transitional
justice outcomes” (OHCHR, 2009: 18). Regarding the question who should be consulted the guidance
tool postulates to involve all key stakeholders, including victims and witnesses, civil, traditional and
religious leaders, political representatives, human rights institutions, professional organizations, the
media, security forces and former combatants, educationalists and academics (OHCHR, 2009).
5 Article 25 of the International Covenant on Civil and Political Rights guarantees the right of every citizen to take
part in the conduct of public affairs. 6 E.g. article 17 of the International Covenant on Civil and Political Rights.
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3. Consultations on Transitional Justice in Burundi
In Burundi, between July and December 2009, national consultations on the modalities of the
establishment of the transitional justice mechanisms were conducted. In the Arusha Peace and
Reconciliation Agreement, signed in 2000, political parties agreed to set up a Truth and Reconciliation
Commission and judicial mechanisms7 to fight impunity and break the cycle of violence. Since Burundi’s
independence in 1962, the country experienced several cycles of violence. In 1965, an unsuccessful coup
d’état by a group of Hutu gendarmeries triggered retribution by the Tutsi-dominated army. This pattern
repeated itself several times in the following decades, including the killing and disappearance of many
Hutu intellectuals in 1972 after an insurrection caused by the exclusion of Hutu from the institutions of
government (Uvin, 2009a) or the death of around 20,000 Hutu after an outburst of violence in 1988.
After democratization efforts at the beginning of the 1990s, a civil war broke out in 1993 with the
assassination of the first democratically elected president, Melchior Ndadaye (Daley, 2007) and the
murders of many Tutsi in the immediate aftermath. The negotiated Arusha peace agreement did not
stop violent hostilities in 2000, since armed groups were deliberately excluded from the negotiations
(Sculier, 2008). Moreover, civil society groups were not included in the negotiations. At the time of the
negotiations, Burundian civil society organizations were perceived as closely linked to the Tutsi power
base and not representative of the majority of the population (McClintock and Nahimana, 2008).
Questioning their representativeness, the Arusha peace agreement notes: “the notion of civil society is in
fact a new one and is not well understood by the population, just as civil society itself does not
understand its own mission” (Arusha Agreement, 2000: report committee IV, 125, para. 2.5.6.1).
Although the Arusha agreement foresees the establishment of the transitional justice mechanisms
during the transitional period (2001 – 2005) neither the TRC nor the judicial mechanisms were set up. In
December 2004, the transitional parliament passed a law on the mission, composition, organization and
functioning of a National Truth and Reconciliation Commission (loi 1/018 du 27/12/2004), but this law
was abandoned (Vandeginste, 2009). In 2005 the UN sent an international assessment mission to
evaluate the advisability and the feasibility of the transitional justice mechanisms. The resulting so-called
Kalomoh report (2005) called for a reconsideration of the Arusha formula (TRC, IJCI and the international
criminal tribunal) by proposing a twin transitional justice mechanism consisting of a TRC and a special
chamber in the court system of Burundi8 to try those responsible for acts of genocide, war crimes and
crimes against humanity. Following the endorsement of the Kalomoh report, the UN and the Burundian
government started negotiations on the implementation of the report’s recommendations (ONUB, 2006)
which finally took place in two rounds in March 2006 and March 2007.
7The Truth and Reconciliation Commission (TRC) should shed light on the truth about grave violence, promote reconciliation and forgiveness, and clarify the entire history of Burundi (art. 8, Protocol 1, chap. 2). As a judicial mechanism, an International Judicial Commission of Inquiry (IJCI) was planned to investigate and establish the facts relating to genocide, war crimes and crimes against humanity. Based on its findings regarding the occurrence of such acts, an international criminal tribunal was foreseen to try and punish those who are responsible (Arusha Agreement, art. 6, protocol 1, chap. 2). 8 Meanwhile the idea of the special chamber has been yielded to a special criminal tribunal (tribunal pénal special -
TPS) (Ndikumasabo et al 2007).
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It was in the context of those negotiations that the idea of consultations on transitional justice in Burundi
came up for the first time in a letter from the UN Secretary General after a preparatory mission for the
negotiations in autumn 2005 (UN Secretary General, 2005). Already after the first round of negotiations
in March 2006, a consensus to conduct national consultations seemed to emerge (Batumubwira, 2006,
ONUB, 2006). Among the most contested issues between the two parties were the questions of amnesty
for war crimes, crimes against humanity and genocide; the independence of the special tribunal’s
prosecutor; and the interrelationship between the TRC and the TPS (Ndikumasabo and Vandeginste,
2007). In May 2007, after the visit of the UN High Commissioner of Human Rights Louise Arbour, they
agreed to hold national consultations on the transitional justice mechanisms (Tazi, 2007). While these
negotiations took place on a formal level between the Burundian government and the United Nations,
civil society organizations strongly advocated for national consultations. As indicated in the UN guidance
tool on consultations on transitional justice (OHCHR, 2009), the national consultations in Burundi were
regarded as an opportunity and a first step to press forward the blocked transitional justice process
(Ndayizigamiye, 2009), while others feared that the consultations would only constitute an alibi process
or a delaying tactic (BUJ-I-b-1).
The national consultations finally took place between July and December 2009 in all provinces of Burundi
and in March 2010 outside the country. They were executed and financed as a project within the Peace
Building Commission in Burundi that was elaborated by the tripartite steering committee (comité de
pilotage tripartite (CPT)) (Accord cadre, 2007). The CPT was composed of two representatives of the
government of Burundi, two of the United Nations and two of civil society. Concerning the Burundian
members, their composition was supposed to be ethnically and gender balanced (c.f. FORSC, 2007). The
consultations focused on the modalities of the establishment of the TRC and the TPS, such as the
nationality of the members, their selection committee or the mechanisms’ mandate. Additionally,
questions were asked concerning the period of investigation of the two mechanisms, reparations,
institutional reform, and solutions for reconciliation and breaking the cycle of violence. However, the
pending issue – the interrelation between the TRC and the tribunal - from the negotiations between the
UN and the government, the opportunity of having one or the other mechanism, and questions which
could be at odds with international law were excluded (Comité de Pilotage Tripartite, 2010). In total 80
percent of the 4,837 invited persons9 were consulted (Karema, 2011). The consultations took place in the
national language which was appreciated by the participants (BUR-III-e-1). Although the final report was
ready for publication in April 2010 and circulated in the streets of Bujumbura, it was not until December
2010 that it was officially released (BINUB, 2010). In July 2011 a committee was nominated to prepare a
law to establish the TRC. Although the TRC was supposed to start its work in early 2012, the law has not
yet been voted by the parliament.
9 Based on the last census conducted in 2008, the total number of persons in each province has been fixed. Then
the Africa Label Group, who was engaged as an external consultant to elaborate the methodology of the consultations, proposed a selection of persons that was five times higher than the needed number for each specific group to be consulted. The person to be consulted was then chosen by lot (Comité de Pilotage Tripartite, 2010, BUJ-I-b-3).
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4. The National Consultations from a Population’s Perspective
The subsequent parts of this paper critically assesses the national consultations in Burundi in the light of
giving agency to the population in the design and conduct of the country’s transitional justice process.
The national consultations in Burundi might most correspond to the nominal participation form that
White (1996) sketches out in her article. The interests of those who conducted the consultations, namely
the UN, the Burundian government and civil society, lie in the field of legitimation. As a supposed
reflection of ‘the opinion of the population’ the national consultations give popular legitimacy to the
transitional justice process which was previously designed by the Burundian government and the UN.
Moreover, through the national consultations civil society organizations could strengthen their positions
as a legitimate actor representing the population (Rubli, 2011b). However, as the focus of this paper lies
on ‘ordinary’ citizens, I do not further elaborate on the interests of those who conducted the
consultations. On the participants’ side, the national consultations aimed at including them in the
transitional justice process. Concerning the form and function of the consultations, they constitute
rather a combination of nominal (demonstrating that people can participate and the popular base) and
representative (representing people’s voice) participation whose function is to display and to give voice,
respectively. In order to analyze the national consultations from the perspective of ‘ordinary’ citizens, I
will focus on the goals of the consultations and how they have been perceived by the population, on the
issue of who has participated and who conducted the consultation, on the meaning for the population of
being consulted, and to what extent people could influence the future transitional justice process.
4.1. Aims of the Consultations
According to the final report of the “national consultations on the modalities of the establishment of the
transitional justice mechanisms in Burundi” they aimed at: including the population in the national
reconciliation process; creating a favorable environment for the appropriation of the transitional justice
mechanisms by the population; and collecting the views of the population on the modalities of the
establishment of the transitional justice mechanisms (Comité de Pilotage Tripartite, 2010: 21). Thus, the
consultations intended to give agency to the population in the country’s transitional justice and
reconciliation process. At the beginning of each consultation session, the aim of the consultations and
the concept of transitional justice were explained to the participants (BUB-III-e-1, BUB-III-e-3). Interviews
conducted with people that have been consulted reveal that the participants have different
understandings of the aim and content of the consultations. Some considered them to be about
“dialogue and consultation” (BUB-III-e-4), as an “exchange of opinions” from which one can learn a lot
(BUJR-III-e-4) or an “an occasion to meet other persons who do not share the same opinions” (BUJR-III-e-
3). One 70 year old man thought that “we will participate in a training on truth and reconciliation” (BUJR-
III-e-1). As a young woman stated it “we were told that we are going to discuss reconciliation and
forgiveness” (BUJR-III-e-3). Some even confused the consultations with the planned TRC and started to
testify what they lived through (BUJ-I-b-4, BUJ-I-b-2)10. One participant, labeling himself as an
intellectual, affirmed that some participants mixed up the consultations with the TRC as “it was not
explained; the difference between the consultations and this truth and reconciliation committee was not
10
The UN guidance tool on national consultations is conscious about this risk and advices that consultations should be distinguished from the discussions and debates that occur as a substantive part of transitional justice programs (OHCHR 2009). However, in practice this might be more complicated as the examples above have shown.
11
provided” (BUB-III-e-1). In contrast, he added that the objective of the consultations was reached for the
intellectuals, as they were able to respond to the questionnaire (BUB-III-e-1). For some persons who
were consulted, the consultations were “an occasion to reveal what we feel in our hearts” (BUB-III-e-2,
BUJR-III-e-2). To conclude, certainly the national consultations could display the views and opinions of
the population on the modalities of transitional justice mechanisms and might have created a favorable
environment for their appropriation. The momentum for the appropriation of the transitional justice
mechanisms might have already fizzled out not at least due to the elections that shortly afterwards took
place and the long period of nearly two years between the consultations and the next steps in the
transitional justice process. One might doubt that the consultations could include the population in the
reconciliation process, as they were generally considered to be an exchange or discussion of opinions, an
information source and an opportunity to learn something or as an occasion to reveal what people have
felt and lived.
4.2. Who has been consulted?
In total, 3,887 persons were consulted either in individual interviews, focus groups or communal
discussion (Comité de Pilotage Tripartite, 2010). Moreover, 74 persons representing the Burundian
Diaspora living in Europe and Africa have been consulted. For the individual interviews 11 different
groups representing various professions, associations and communities11 were taken into account
(Comité de Pilotage Tripartite, 2010: 50). Focus groups were created for displaced persons, demobilized
persons, former child soldiers, female victims, repatriated persons, Bashingantahe12, war widows, war
orphans, and Batwa13. Finally, communal meetings were organized with an average of 20 persons per
meeting composing of 23 professional, religious or social groups14. In all groups, ethnic and gender
criteria were respected. Concerning the total number of persons that have been consulted, civil society
deplored this number as insufficient, as not even one percent of the adult population (BUJ-II-b-1) could
participate and some societal categories were only represented by one person in some provinces (FORSC
2010). Regarding the societal groups that have been consulted in Burundi, the categories involve all
relevant stakeholders, including victims of sexual violence, women, children, refugees and displaced
persons, as the UN guidance tool posits it (OHCHR, 2009). Moreover, the guidance tool emphasizes that
the “voices of those civil society groups that either represent victims or otherwise convey their concerns
and demands” should be taken into account when carrying out consultations on transitional justice
11
The 11 groups were constituted of historians, academics and writers; mutilated persons; persons that have occupied or occupy high ranking political positions; representatives of the catholic church; representatives of the protestant church; representatives of the Muslim community; civil society organizations; public administration; women’s associations; and war widow associations. 12 Bashingantahe are wise men (rarely women), appointed by local communities themselves, acting as local mediators and judges (Uvin 2009). 13
Batwa are the third ethnic group in Burundi. They compose around 1 percent of the total population. 14
For each communal meeting 5 to 6 different groups representing women’s associations; youth associations; catholic church; protestant church; Muslim community; Bashingantahe; female victims of serious violations; civil society organizations; Batwa; displaced persons; students; universities and secondary schools; former combatants; repatriated persons; demobilized persons; political parties; national defense forces; national police; bars and magistrates; medical doctors; communal council; parliamentarians; and journalists.
12
(OHCHR, 2009). However, victim’s associations have only recently emerged in Burundi15. The UN
guidance tool (OHCHR, 2009) cautions that victim’s groups need to represent the victim’s view because
sometimes such groups might convey very specific viewpoints or only some victims or have an agenda on
their own. However, transitional justice interventions often categorize local people as either victims to
be rescued or perpetrators to be prosecuted (Madlingozi, 2010). Madlingozi (2010) critically concludes
that transitional justice interventions might rather produce inferior and politically disempowered
subjects, thus ultimately they not only represent and speak for victims but ‘produce’ the victim. This
disempowerment and the accompanying fear of stigmatization might be one reason why victims in
Burundi do not label themselves easily as victims. However, the persons I interviewed did not refer to
themselves as being victims, and only a few reflected on the categories chosen. Concerning the
categories of the invited persons, one man appreciated that he was invited to represent civil society and
his ethnic group (GIT-III-e-2). Another one was asking himself why he has been chosen and asked this
question to the different partners involved in the consultations but without receiving an answer why this
and not that person have been chosen (BUB-III-e-1). He added that during the consultations some of the
participants criticized the categories and the way of inviting people for the consultations. As a response
the president of the steering committee answered that it was a requirement of the international
community to categorize Burundians in ‘authorities’, ‘women’, ‘men’, ‘ethnic groups’ (BUB-III-e-1).
However, in conclusion it can be said that the national consultations give a quite representative picture
of the opinions of the population because all the relevant societal components (for the topic of
transitional justice) of Burundian society were consulted.
4.3. Who conducted the Consultations?
An important aspect of participation, especially regarding questions of power, concerns the issue of who
conducts such consultations. The UN guidance tool states that “[I]t is best for the consultations to be
conducted by independent experts who do not have any organizational or political stake in specific
transitional justice outcomes” (OHCHR, 2009: 18). This should ensure that the process will be conducted
on the basis of human rights standards and with respect for the rights and dignity of the consulted
participants (OHCHR, 2009). Thus, in order to be accepted by the population, consultations should be
carried out by legitimate actors. In Burundi the national consultations were carried out by a tripartite
steering committee containing two representatives of the Burundian government, of the UN and of civil
society organizations, respectively. They were supported by 22 field assistants, who were responsible for
moderating and animating the individual and groups’ consultations and taking notes during the focus
groups and communal meetings (Comité de Pilotage Tripartite, 2010: 41). Invitations were jointly
distributed by the local administrators and a representative of civil society (Comité de Pilotage Tripartite,
2010), in order to assure participants that they would not be a legal convocation but instead voluntary
consultations.
15
For example, AMEPCI (Association pour la Mémoire et la Protection de l’Humanité contre les Crimes Internationaux) has officially been accredited in 2011). However, they face some difficulties in registering their associations. As they represent usually victims of a certain violent event (e.g. the Tutsi victims of the massacre in Kibimba in 1993), they are considered by the administration as only representing one ethnic group.
13
Although it would have been too sensitive to ask the interviewees whether they consider those who
conducted the consultations to be legitimate, I asked more generally which role various actors, including
the international community, the government and authorities or civil society, should play in the
reconciliation and transitional justice process. Most interviewees agreed that the various actors need to
collaborate in order to promote reconciliation and the establishment of the transitional justice
mechanisms. Although there are complaints that civil society organizations are not sufficiently present in
rural Burundi and that only organizations in Bujumbura receive funds (BUR-III-e-1), most persons
interviewed consider civil society organizations to be neutral (RUY-III-e-1, BUJR-III-e-3, BUJR-III-e-5), to
have credibility among the local population (BUB-III-e-1) and to be able to facilitate the link/contact
between the administration and ‘ordinary’ citizens (GIT-III-e-2). However, if there are civil society
organizations with political tendencies, it would be difficult to reconcile the population (BUJR-III-e-4).
Concerning the government, most people considered that it needs to be included in the transitional
justice mechanisms and the reconciliation process because “otherwise there will be chaos” (BUJR-III-e-2)
and because it is composed of Burundians that have been elected by the population (MAK-III-e-1), but
the government needs to be also neutral (BUB-III-e-4) and to act in the interest of the Burundians (MAK-
III-e-2). Being asked about the role of the UN, a lot of interviewees view them as providing advice and
financial means (BUJR-III-e-3). Moreover, the UN is perceived as a sort of arbiter (BUB-III-e-4) and
guarantor for the establishment of the tribunal (BUJR-III-e-1) and would give the necessary boost in
order for the transitional justice mechanisms be established (BUB-III-e-1). Taking into account these
statements, it can be concluded that the participants of the consultations generally considered the
approach of a tripartite steering committee composed of representatives from the government, UN and
civil society organizations as a legitimate and appropriate approach. In contrast to the transitional justice
process prior to the consultations, that was steered by the Burundian government and the UN, they even
wished that civil society would additionally be involved in the further transitional justice and
reconciliation process.
4.4. Is consulting a good thing?
The question of whether the national consultations have given agency to the population needs to be also
seen in the light of previous consultations conducted in Burundi. The space for the population or civil
society for expressing in particular political opinions, attitudes and values was generally very limited
during the single-party regime that was in place from 1966 to the early 19990s (Palmans, 2006). This
means that it was wiser to either stay silent or to only discuss politics with close friends and family. This
changed with political liberalization in the early 1990s and the qualitative and quantitative explosion of
civil society (Palmans, 2006). Besides democratic elections on the communal, provincial and national
level (1993, 2005 and 2010) ordinary Burundians were able to express their opinion on two occasions.
After the violent events in 1988 consultations (with the population and mainly among various political
forces) were organized in order to regain peace and political stability (OAG, 2009). In February 1991 the
Charter of National Unity was adopted by a popular referendum. On March 9, 1992 Burundians were
asked to adopt the new constitution by referendum (Reyntjens, 1992).
An analysis of these pervious consultations by the Burundian NGO Observatoire de l’Action
Gouvernementale reveals some of critical issues for giving agency to the population in the transitional
14
justice process. One the one hand, since the late 1980s there has been an opening towards a pluralistic
democracy which is based on a new political culture, new values and norms and new institutions (OAG,
2009). Moreover, the report identifies an evolution of the conceptions and mentalities of the population
regarding a profound aspiration of ordinary citizens to participate in decisions which affect their lives. On
the other hand, the previous consultations have shown a tendency to resort to techniques of
conscientization and manipulation. This means that an explanatory and injunctive approach does not
guarantee enrichment of the transitional justice process or the appropriation of the aim and results of
the consultations (OAG, 2009).
Taking into account these conclusions, I asked persons who were consulted if they appreciated being
consulted on transitional justice and whether there should be more consultations on other relevant
topics of politics. The majority of the interviewees appreciated the national consultations. One man said
that “I was very happy [...] because I was consulted in order to give arguments how our transitional
justice should look like” (BUB-III-e-4). Another man specified that “I believed that this [the national
consultations] was something that would not be organized in this country, really I have welcomed them,
moreover, it was an honour for me to be invited to take part in the national consultations” (BUR-III-e-1).
When asked for what reasons they had participated, some interviewees said that they judged the
consultation to be an “important thing” (MAK-III-e-2, MAK-e-III-1). One man added that “due to the fact
that there was the Burundian flag on the invitation I thought that it must be something very important”
(MAK-III-e-1). However, some admitted that they did not know what “it is about” when they received the
invitation for the consultations, but that they were “curious to know what it is effectively about” (BUJR-
III-e-2). Most of the interviewees asserted that “it is important to consult the population” (BUB-III-e-2) in
general and that the population has to be consulted on transitional justice. In general, the interviewees
also appreciated being consulted on other issues that concern Burundian society. Such consultations
would be “a means to provide a summary of what happens in the commune”, to identify problems and
to provide solutions (BUJR-III-e-2). Thus, people want to participate in decisions that concern them.
Some also see them as an opportunity to be informed and to “have more explanations” (MAK-III-e-2). On
the other side, consultations would also allow the authorities to be informed about the preoccupations,
concerns and views of the population (BUB-III-e-3). A school teacher explains that it is the population
who elected the political elite and public servants, so why then shouldn’t the population be allowed to
voice their opinions in running the country. In her terms, the voice of one person cannot lead a whole
country, but the people are wise as well (BUB-III-e-4). A former communal administrator considered that
popular consultations are “a good thing” if the State would respect them and take into account the
results of such consultations. If, in contrast, the final report of such consultations remains in the drawer,
this would be a loss of time and money. ‘Good’ consultations “can help the authorities and the
population to make progress in democratization” (BUB-III-e-1). Hence, the national consultations might
have an element of empowering the population as active citizens in a democratic system.
However, there are also critical voices concerned about involving and consulting the population.
Consulting the population can give rise to a lot of divergent opinions (BUR-III-e-1), thus, it would be
better to establish a (ethnic) representative commission to study the particular issue and propose a joint
solution (BUB-III-e-1). In the same vein one elder male interviewee says that Burundians would not
15
participate in more elections since they would divide people, and there would be a risk of plunging back
into past hate (BUJR-III-e-1). Others think that especially the rural population can too easily be
manipulated and are incapable of having informed opinions. Consultations and referendums would not
serve their purpose, as “the rural population, who is illiterate” can be mobilized by political parties. As a
consequence an authority, who wants to have its opinion or decision passed, can have its ideas passed
through the consultations (BUR-III-e-1). Another interviewee says that “given the fact that the majority
of the Burundians are illiterate, they would approve everything they have been told” (BUR-III-e-1). Thus,
decisions taken by intellectuals would not be reversed by ordinary citizens (BUR-III-e-1). These criticisms
point to two important aspects concerning agency of the population in transitional justice matters that I
will discuss in the following section: one, the aspect of instructing voices and opinions and manipulating
participants and the result of the consultations: and two, whether and how far the results of the
consultations have been taken into account. Both aspects speak directly to the question of whether the
consulted population have been able to effectively influence the transitional justice process.
As transitional justice is a very sensitive topic in Burundi fears of manipulation of the national
consultations around a range of issues have been articulated by various actors. Theoretically, the final
report of the consultations reflecting ‘the opinion of the population’ gives popular legitimacy to the
transitional justice process which was previously designed by the Burundian government and the UN.
Some, especially advocates of transitional justice, feared that the consultations would only constitute an
alibi process as was the case with prior consultations such as on national unity (OAG, 2009), or a delaying
tactic (BUJ-I-b-1). Both the government and the representatives of civil society in the CPT feared that the
other party would influence the population on how to respond to certain questions (BUJ-II-c-2).
Therefore, the questionnaire was kept secret until the publication of the final report despite the fact that
there was no scientific reason for this (BUJ-II-c-2) and although this was criticized particularly by civil
society organizations during the monitoring process (BUJ-I-b-1, BUJ-I-b-2). A young woman confirmed
that on the day of the consultations “they [referring to the CPT] refused to allow us to disclose any
information” (BUJR-III-e-3). However, the huge majority of my interviewees asserted that they could
express freely their opinions and that there were no intimidations from the persons responsible for
conducting the consultations or from others including political parties (MAK-III-e-2). Even those,
especially members of political parties, who feared that the consultations would be “a trap designed to
arrest them afterwards based on what they have said” were guaranteed that this would not be the aim
of the consultations (BUB-III-e-3), thus their opinions expressed would not legally binding. Participants
that are illiterate were assisted by a field assistant that they judged trustworthy in order to help them to
fill in the questionnaire (BUB-III-e-2, BUR-III-e-1). One interviewee believed to have observed that the
assistant wrote “we are in favor of the TRC” instead the illiterate person’s answer: “these people are
squandering the money of the ‘white’ [donors], we only need peace” (BUR-III-e-1). While keeping the
questionnaire secret might have avoided participants being instructed by outsiders, the secrecy around
the questions of the consultations created many rumors and prevented a debate in the media.
Moreover, in order to avoid manipulation or ‘false’ or subjective interpretation of the opinions expressed
by the population, the consultations took a rather quantitative approach and were based on a survey.
Such an approach allows for information to be scientifically measured in numbers and percentages, and
16
mathematical or statistical techniques to be used to analyze them (OHCHR, 2009). In Burundi this is
often considered to be less subjective and more neutral as generally natural science and ‘hard’ facts are
favored over social science and interpretative data. As a drawback of the survey method, the UN
guidance tool on transitional justice consultations considers the “manner in which it tends to propose a
limited range of options, to which respondents react” (OHCHR, 2009: 8). Thus, this may preclude novel
or unanticipated transitional justice arrangements to be proposed (OHCHR, 2009). However, this might
have been the intention of the designers of the national consultations. For example, the question which
asked whether Burundians would like to have a TRC or/and a tribunal was deliberately excluded, and
instead the consultations focused on the modalities of their establishment. As a woman I interviewed
put it: “concerning the tribunal, they prohibited us to propose it” (BUB-III-e-3). Accordingly, the influence
of the population on the design of the whole transitional justice process would be rather limited (c.f.
OHCHR, 2009). The UN insisted that this question was not asked (BUJ-II-c-2) as they feared that the
government would take the consultations as a pretext in order to abandon the establishment of the
tribunal. While civil society discussed whether there should be such ‘taboo questions’ in the
consultations (civil society representative, pers. communication), they finally agreed that the
‘opportunity’ question did not figure in the questionnaire (BUJ-II-b-1).
This exclusion of an option points to an issue of power that exists in participatory approaches; the
questionnaire is framed by the designers and decisions-makers in a way that ‘undesired’ outcomes are
not possible, thus questioning the real agency of the participants. Because the majority of the questions
were formulated in a closed manner (thus, they could be answered by ‘yes’, ‘no’ and ‘without opinion’),
certain options which might not please the actors represented in the CPT were excluded or altered. For
example, questions concerning amnesties always excluded acts of genocide, crimes against humanity
and war crimes. Whether one might agree that international law is always superior, Burundians were not
able to express their opinions on whether they consider amnesties for those crimes an option for
reconciliation. Moreover, from the way in which the questionnaire was designed no clear preferences
could be derived. For example on the question of how to reconcile Burundians the participants could
agree or disagree if reconciliation should happen through truth, justice, reparations, forgiveness and
amnesty. The questionnaire contained only multiple choice questions which could be answered by yes or
no. An educated person critically added that participants could not justify their answers, or were only
able to do so with a short sentence (BUB-III-e-1). In combination with the composition of the
questionnaire, these ‘yes’ or ‘no’ questions may lead to incoherence. For example if justice on the one
side, and amnesty and forgiveness on the other side, are understood as opposing concepts then the
results might be contradictory. During the national consultations the majority of the population was in
favor of justice (83%) but at the same time also for amnesty (65%) and forgiveness (87%) (Comité de
Pilotage Tripartite, 2010: 111). As the participants could not express themselves on their priorities by
justifying their answers, all of the proposed ways for reconciliation reached an agreement between 91
and 65 percent. Other studies (Uvin, 2009b, Ingelaere, 2010) show that Burundians in general prefer not
to shed light on past events, and thus their opinions do not necessarily adhere to the transitional justice
agenda. They instead and favor approaches that are more adapted to local daily experiences
characterized by poverty, political insecurity and dysfunctional justice system. It can therefore be said
17
that the closed questions and the exclusion of options in the questionnaire may limit the representation
of the needs, aspirations and opinions of the persons who have been consulted.
4.5. The views of the population and the draft law on the TRC
The final report of the national consultations on transitional justice, summarizing the views expressed,
was officially released on 8 December 2010 (Karema, 2011). In July 2011 a committee was nominated to
propose a draft law for establishing the Truth and Reconciliation Commission and presented the
Kavakure report (Comité technique, 2011), named after its president, on 18 October 2011. The
committee based its propositions among others on the final report of the national consultations (Comité
technique, 2011). This is in line with the framework agreement (Accord cadre, 2007: 2) between the
Burundian government and the UN that stipulates that the conclusions of the national consultations
have to be taken into account in the founding acts of the transitional justice mechanisms. However, the
recommendations of the national consultations are not binding (Comité de Pilotage Tripartite, 2010).
This leads us to ask how far in fact have the results of the national consultations have have been taken
into account? Are the views expressed by the participants represented in the draft law? Hence, could the
population really participate through the national consultation in the design of the TRC?
Comparing the draft law on the TRC and the expressed opinions of the population, we can see that in
some points the draft law did not follow the results and recommendations emerging from the national
consultations. While I do not discuss in which points the draft law correspond to the views expressed by
the population, I mention in the following some points that diverge in the Kavakure report and the
report of the national consultations. Firstly, the draft law (Comité technique, 2011: art. 12) suggests that
a TRC be composed only of Burundians, while 44% of the persons who were consulted accepted
international commissioners compared to 53% who are in favor of Burundian staff (Comité de Pilotage
Tripartite, 2010)16. Civil society organizations claim that 77% of the consulted population would like to
see a mixed TRC (GRJT, 2011: 15). Secondly, the draft law is silent on the professional or social
background of the commissioners, despite the fact that the consulted population expressed the wish
that they should come from civil society (93%), religious confessions (91%), liberal professions (86%) and
the government (73%). Finally, whereas the draft law (Comité technique, 2011: art 6) does not specify
the crimes that the TRC should investigate, the final report of the national consultations contains a
whole range of crimes ranging including from acts relating to goods and land (CN PAGE 68), that would
be dealt with within the National Commission on Land and other Goods according to the draft law
(Comité technique, 2011art. 63).
As the interviews on which this paper is based have been conducted in February 2011 it is not possible to
make any statements whether people feel that their views have been taken into account in the Kavakure
report published in October 2011. Although the media started to diffuse some results of the national
consultations before the publication of the final report in December 2010, an official awareness raising
16
The questionnaire of the national consultations does not contain the question whether people are in favor of a TRC composed only with Burundians or a mixed commission. The above mentioned percentages have been calculated on the basis of the combination of the two questions whether the TRC’s commissioners should be Burundians or whether the commissioners should be internationals.
18
campaign including the presentation of the results of the national consultations was only launched in
July 2011 (Karema, 2011). As the population did not well know the results of the consultations, it was not
possible to assess during the interviews whether they feel that they and their views are represented in
the final report. As one man said: “we have not yet seen the report, we do not know what has been
written inside it, whether they have effectively written what we said” (BUB-III-e-4). This fear might be
justified to some extent, as for example, the final report recommends that the future TRC should have
the latitude to decide whether the hearings will be conducted behind closed doors and whether the
names of the presumed authors of crimes should be disclosed while the population consulted clearly
expressed an opinion in favor of public hearings and the divulging of names (Comité de Pilotage
Tripartite, 2010). However, the majority of the persons interviewed expressed the wish that the results
of the consultations should be put into effect. A man even noticed a certain “glimmer of hope” for
future reconciliation if the results of the consultations were to be taken into account (BUB-III-e-1). The
persons interviewed hoped that the national consultations would not be “dead letters” (GIT-III-e-2) or
“kept into the drawers” (BUB-III-e-3). Regarding this last aspect it can be concluded that the national
consultations have had a follow-up and have at least partly been taken into account in the draft law
establishing the TRC.
5. Conclusion
This paper aimed at critically assessing the national consultations on transitional justice in Burundi in the
light of giving agency to the population from the perspective of ‘ordinary’ citizens. The national
consultations constituted one of the rare opportunities for the population to express their views, needs
and aspirations. While the voice of the population has at least partly been represented and influenced
the succeeding transitional justice process, the other goals of the consultations, such as including them
in the national reconciliation process17 and the creation of a favourable environment for the
appropriation of transitional justice mechanisms, are far less evident. However, an elderly woman who
lost her husband and one of her sons during the civil war told me at the end of the interview that the
very act of being able to tell someone who has travelled so far what has happened to her is a source of
relief (GIT-III-e-2). One might conclude that it is not that much about the outcome of the consultations,
but rather the process of consulting that matters for reconciliation. This supports the findings that
generally people consider it to be important to be consulted on issues that affect their daily lives.
While this paper does not aim to put into question the value of participation and transitional justice, a
critical assessment of the national consultations in Burundi can show the limits of such an approach
regarding agency, representation and power. Like all participatory approaches, there are also underlying
power relations which might be reproduced through the national consultations. For example, by
categorizing people into different societal groups, their identity, including being a victim, might have
been consolidated. It would be necessary to analyse the role of the other actors, such as the Burundian
government, the UN and civil society organizations, in order to uncover the underlying power relations
and their effect on the transitional justice process. Nevertheless the focus on the experiences of the
17
Regarding reconciliation, I asked the interviewees what is reconciliation for them and what needs to be done to ‘achieve’ reconciliation. Their answers might not fit ‘national reconciliation’ although this term has not been explicitly defined in the national consultations or by the government.
19
population revealed some of the problematic issues of such a participatory approach. For example, due
to the fact that the final report does not provide any clear preference about how to achieve
reconciliation, the answers can easily be ‘instrumentalised’ and used to further partisan interests by
giving ‘popular support’ to any arguments and claims of political elites and decision-makers, civil society
organizations or international donors. The interests and motivations behind the national consultations
should be studied as well in order to know whether the national consultations were really about knowing
what people think and giving agency to them.
As the conceptual debates on participation in development studies show us, national consultations or
other participatory approach can be a way of representing people’s voices, needs and aspiration.
Moreover, as the discussions around ‘localizing transitional justice’ and ‘transitional justice from below’
demonstrate that local approaches can empower people as agents and partly emerged as an effort to
challenge the dominance of ‘imposed’ transitional justice processes. However, in order to give the
population a real stake in designing and implementing dealing with the past processes, such national
consultations must not be considered as a technical issue but rather as a political endeavor.
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