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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 Please do not cite or circulate without the permission of the author.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

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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.

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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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