khanyisela moyo on the failure of transitional justice in settler societies
This article argues that in its liberal form, transitional justice has no future as it cannot encompass structural injustices arising from issues related to postcolonial land conflicts. The bias of liberal transitional justice discourse towards corrective and retributive justice invites criticism that it is a tool for dealing with ‘uncivilized’ rogue states. In addition, transitional justice’s liberal individualism overlooks pluralistic arrangements of property rights which were secured by colonialism. Liberal justice mechanisms also take no account of the fact that postcolonial states did not start from a ‘veil of ignorance’ and as such cannot presume that liberty has to take primacy over redistribution. Nonetheless, the article also contends that the continuum of transitional justice can be assured if there is a serious engagement with recent postcolonial innovation which is ‘mimicry’ of the dominant discourse. The article’s use of the concept of ‘mimicry’ is inspired by the term’s use in postcolonial and colonial literature to describe the interaction between members of colonized people and their colonizers. In the context of transitional justice, mimicry can be shameful, empowering and subversive as it includes the shameless copying of former colonizers’ tactics by the postcolonial ruling elite and the diffusion of ‘western’ concepts of rule of law, justice and human rights, and also presents opportunities for postcolonial ‘agency.’ Postcolonial ‘agency’ occurs where postcolonial societies merge liberalism with postcolonial realities, thereby responding to these societies’ actualities without completely disavowing international law.
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