Comments on Draft Act to Establish the Truth and Reconciliation Commission of Liberia

Submitted by:
The International Center for Transitional Justice
P. Hayner

August 16, 2004

Thank you for the opportunity to comment on the draft Act, emerging from the two-week drafting session which ended last week. We would make the following suggestions and comments, based on the experiences of truth commissions elsewhere, though recognizing that the final decision on language as well as substance should and will be made by Liberian civil society and the NTLA. Comments below are in the order of appearance in the Act:

Section 3:

2)It might be useful to the commission if the language here was a bit more precise, in order to give clear guidance. Instead of “dealing with the root causes of the crisis...” (abuses, corruption, etc.), it might be useful to say “investigate into the root causes...” I presume this is what is meant?

3) Various things:
•Here, it would seem important to include reference to violations of international humanitarian law as well as human rights violations.

• In fact, investigating “all” incidents will be (most unfortunately) impossible. Perhaps this would be better as “Investigating incidents of...” – and perhaps adding “with particular attention to those acts which constitute of a pattern of events.” This may take slight rewording of the paragraph, with the goal of not requiring the commission to undertake an investigation into every single case.

• Is the “establishment” of the TRC the date the Act is passed, the date the commissioners are inaugurated, or the date they formally begin work? Perhaps precision here would be useful so that this is clear to all.

• The reference to “economic crimes” (and especially as the commission is called to “investigate all incidences of...”) raises the question of how far-reaching this is intended to be? Perhaps some guidance could be provided as to whether it is really intended that all allegations of corruption, for example, should be investigated by the TRC? This could potentially make its job nearly impossible, and also mire it is political difficulties pertaining to allegations of corruption that have occurred since the signing of the Accra accord.

Section 5:
Experience elsewhere would suggest that a request for an extension to a truth commission’s work would likely take place quite late in the commission’s work. It is not clear what timing is intended here, but it might be advantageous to allow an extension to be granted “for good cause, as shown by the commission in a written request to the National Legislature” – rather than requiring such a request to be part of a semi-annual report.

Section 6:
It is possible the commission might want to open an office or branch overseas (such as to take statements from Liberians based abroad); it might be useful therefore to change this language to say that offices or branches may be opened “elsewhere” (rather than “in other parts of Liberia”), at the discretion of the commission.

Section 8:
Who is the entity or authority who decides what individuals are to be appointed to the selection panel from civil society, political parties, and the UN? Ideally, this Act could identify specific appointing organizations or individuals, such as: “the Transitional Justice Working group shall appoint one; the xxx of civil society shall appoint one; the chairs of all registered political parties shall jointly appoint two; the UN SRSG, in consultation with UNMIL’s human rights unit, shall appoint one.” Or something along those lines.

Section 9:
Two things:
• Does this mean that ECOWAS would help the civil society organizations appoint their representatives to the selection panel? This seems a bit awkward, in part because it requires the ECOWAS person to be identified and in place before civil society can identify its appointees (unless this is not what is meant here).
• Is it intended that people can “apply” to be commissioners? Perhaps better language would be “nominations” rather than “applications”?

Section 10:
I presume it is intentional that the Act does not repeat the language of the CPA, requiring members to be part of “Liberian society”?

Section 11:
The intention here is right, as to excluding known politically partisan individuals, but the language might unintentionally exclude anyone who has known political allegiances, which could be too strict of a requirement (given that most people might reasonably be members of a political party, for example). Perhaps, rather than “non-partisan” and “above political alignments,” it might be preferable to say “persons who have not had a strongly partisan public profile,” or something along those lines.

Section 15:
I would be curious what is intended by the language which places its “work and the functions...second only to matters emanating from the National Elections Commission.” If this intent is to be sure the TRC does not complicate matters for elections, then perhaps this could be more narrow and specific, such as “the commission may modify the public aspects of its activities, and the public release of its report, in respect of election periods; these considerations will be undertaken in consultation with the NEC.” The more sweeping language in this current draft leaves open a much broader and unintended interference by the NEC, which would be unfortunate.

Section 16:
Perhaps it is unrealistic to mandate that the full resources, authority, and capacity of the government are at the disposal of the TRC (which infers that the government’s financial resources are without limit at the disposal of the commission, for example). What could be intended in this section, and would indeed be important, might be that “the government shall provide financial support to the commission and provide full access to information and expertise at its disposal,” or something along those lines.

Section 21:
d) We would suggest that this language be slightly revised so that the amnesty could not be applied to “serious violations of international humanitarian law and crimes against humanity.” This is in keeping with the UN guidelines and other international standards as to crimes that cannot be amnestied.

Might it also be useful to limit any amnesties to acts associated with the armed conflict?

Section 29:
Past experience strongly suggests that a truth commission itself is best placed to recommend reparations, rather than try to create a fund and try to implement a reparations program. We would suggest changing this section to recommending powers, rather than actually creating a fund and identifying beneficiaries.

Section 30:
The commission would be better placed if it did not have to report on a semi-annual basis – unless this is limited to financial reporting or perhaps basic progress reporting. (Furthermore, it is unclear if this says that the report of the commission shall be published in three local dailies? Is this a reasonable expectation or requirement – especially given that the report is likely to be very lengthy? Perhaps change this to “the announcement and availability of the report will be published in three dailies,” or “key findings from the report will be published...”

Section 35:
What is intended by this paragraph, which suggests that the report “shall assume the character of national law”? This seems confusing and undesirable, given that the report will not likely be written in a style that would be conducive or appropriate for legislation.

General comment: We think that the Act is well-crafted in its current structure, and in fact it works well to not include a definitions section. Indeed, trying to define many of the concepts and ideas included in the Act would likely unintentionally limit the commission’s work. As has been seen by previous truth commissions, most of the concepts here are best left for closer definition by the commission itself.