Libya’s political leaders must not mistake the lack of demonstrative political pressure to address the issue of national reconciliation as a sign that all is forgiven. Dealing with our past is akin to treating national internal bleeding whose symptoms might not be immediately apparent to the naked eye but whose long term consequences for the health of Libya’s body politic can be extremely harmful.
The need to deal speedily and effectively with the past is best illustrated by the German writer Jurgen Fuchs who expressed concern to Adam Michnik, a leader of the Polish opposition to communist rule about crimes committed by the communist regime in East Germany. “If we do not solve this problem in a definite way, it will haunt us."
Likewise in post revolution Libya, the present and the past are entwined and the burden of the past will continue to be an albatross around our present and future. The albatross will pull us back if justice is not done and seen to be done.
When a forty- two-year-old regime ends as a result of a violent revolution, anomie is inescapable. But it is the duty of the successor regime to come up with a strategy that ensures justice is dispensed in a balanced way.
This brings to the fore the urgent need to establish accountability for past crimes of human rights abuses and addressing allegations of active participation in systematic abusive practices in a court of law in a transparent and fair manner.
It is in the proceedings of this transitional justice process, perhaps more than anywhere else, that the notion that “justice must be seen to be done “is of paramount importance specifically in helping speed up the national reconciliation process.
Victims need to see that justice has been done. Seeing their tormentors brought to justice is a moral obligation to the victims of repression. It can have a cathartic effect not just on the personal but also the national level. Of greater significance, fairly administered justice will help in reconstructing a morally just society.
Transitional justice will not only help consolidate Libya’s nascent democracy. It will also preclude the rise of vigilante justice with people taking the law into their own hands. Justice served and seen to be done will be an important deterrent against future abuses of human rights. It will also entrench in our people’s mind the value and high esteem and dignity associated with upholding human rights and the ignominy and contempt deserved by those who abuse it.
Transitional justice helps in healing festering wounds and in acting as a national cleansing process. If Libyans are to fail in cleansing themselves of the heinousness of their past they will forever be beset by incessant ruminating.
One avenue to take is to allow the truth to set us free. In a number of post conflict societies airing grievances in a public forum had a cathartic effect and was nationally therapeutic. This was the road trodden by South Africa’s Truth and Reconciliation Commission as well as the Chilean National Commission on Truth and Reconciliation, and the United Nations sponsored Truth Commission in El Salvador.
These public forums brought perpetrators and their victims face to face. Publicly acknowledging the pain and grief of victims can be instrumental in accelerating the national healing process, reducing the likelihood of continuing the vicious cycle of revenge and counter revenge and ending the vigilantism and lynch mob mentality beginning to take root in parts of post revolution Libya.
A truth telling process, including full disclosure of human rights abuses, ensures that "the facts" are not forgotten but remain alive in memory. Lest we forget, Libyans need to establish permanent reminders of the past, such as monuments, museums and public holidays to commemorate the victims of tyranny and human rights abuses.
Future generations must be taught about the dangers of repeating the past. There needs to be documentation of human rights violations and identification of the violators in public records at the national level with documents available to everyone to inspect, investigate and even challenge.
This record should include oral narratives of victims and their families. The testimonies of the abusers, whenever available, should also be made available as part of this record. If and when commissions are established, their published findings should be an integral part of this national archive.
These records/archives should be incorporated in the curriculum of law enforcement training academies as well as law schools. National/social studies classes at schools and universities should make human rights, and the history of its abuse in Libya, part of the course.
However, for some, general knowledge of the truth is not enough. An official recognition of the injustices that have been suffered is necessary. This can only be achieved through a uniformly and judicially applied law, specific for this transition period to close the chapter of the past in order to usher in the far more important future chapter.
The worst investment we make in the future is to allow the present atmosphere of vindictiveness and desire for revenge to prevail. Unfortunately this is what is taking place at present. At a time when we are moving towards a system of government based on the rule of law and of equality in justice and the championing of human rights, it would be difficult to exaggerate the harm that is being done to the raison d'être of the Libyan revolution by continued reports of human rights abuses in post revolution Libya.
Equally disturbing are the arbitrary and selective exclusions of individuals from the political process merely on the basis of their perceived past association, the sporadic outburst of mindless tribalism and occasional attempts at mob rule and mob justice similar to those which prevailed and were the norm during the era of the defunct regime.
In Libya, because of a prevalent tribal culture and sentiments of regional bias it is best if such exclusion is not done in a manner which seems to many to be arbitrarily in nature. Every effort should be made to avoid even the mere appearance of being of biased and selective in excluding individuals from public office. Forfeiture of political and civil rights should be the result of a criminal conviction in a court of law administering transitional justice laws enacted by a duly elected legislative body with recognised legitimacy to represent the people and legislate on their behalf.
For this reason there is an urgent need for transitional justice legislation. Its only in the judicial application of such a law, that we will have a national consensus that those indicted as being an integral part of the Gaddafi regimen and therefore have whether by commission or through omission helped prolong the suffering of the Libyan people, that such individuals, forfeit some of their political and civil rights for a period of time. This is the route taken by most of the post-communist countries of Eastern and Central Europe. The consensus was to disqualify those who formed the backbone of the Communist regimes and administered its policies from holding public office in the immediate post communism governments.
So it should be the law applied fairly and justly which arbitrates our future. We Libyans, of all people should not accept otherwise. An indispensable condition of democracy and equality before the law is the equal legal right for all Libyans to seek and gain political office or public employment. Life under a totalitarian regime with its lawlessness should have taught us Libyans the importance of legal security in its most elementary sense of freedom from arbitrary and selective punitive measures including those of political exclusion .In building a democratic Libya we should be cognisant of the fact that the notion of equality in justice could not be more important .That means in practice that just laws shall be applied without discrimination merely on the ground political or other opinion.
Equality before the law also means that in the making of a law every person is to be treated equally. Equal protection of the law means applying or enforcing a law already made, without differentiation except on a rational and justifiable basis.
The emphasis on a central role for the rule of law and equality before the law cannot be meaningfully discussed in the absence of a robust and independent judiciary not susceptible to pressures emanating from transient popular whims and prejudice nor one which conforms to executive pressure for the sake of political expediency.
It is broadly accepted that an independent and empowered judiciary is central to the rule of law. An independent judiciary is equally central to the maintenance of horizontal accountability, without which democratic development is not possible.
The English philosopher John Locke (b. 1632, d. 1704) warned that: “Wherever law ends, tyranny begins.” More poignantly he spoke of "those evils, which necessarily follow from men being judges in their own cases" highlighting the consequence of people taking the law into their own hands , which is to “magnify the wrong suffered, if any, and to exact a punitive revenge rather than a dispassionate retribution.”