'LEGAL TRANSPLANTS' AND 'FUNCTIONALISM' IN TRANSITIONAL JUSTICE: THE WEST AFRICAN EXPERIENCE OF TRUTH AND RECONCILIATION COMMISSIONS

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LEGAL TRANSPLANTS AND FUNCTIONALISM IN TRANSITIONAL JUSTICE: THE WEST AFRICAN EXPERIENCE OF TRUTH AND RECONCILIATION COMMISSIONS ID# 3815416 COSMAS CHIBUEZE EMEZIEM CORNELL UNIVERSITY 2018 ABSTRACT It is almost axiomatic that transitional societies are usually faced with existential needs — redress of injustices, peace, and rebirth of social bearing. This has birthed transitional justice—a set of judicial and non-judicial measures aimed at redressing human rights abuses —which may include prosecutions, truth commissions, reparations, and such other transitional justice measures. Transitional justice is also about the desire to unearth the truths underpinning the injustices and creating a new paradigm of societal living—justice informed by truth. To fulfill these needs, legal ideas, and templates are readily borrowed —making transitional societies fertile grounds for legal transplants. Query ― how well suited are these legal borrowings for the recipient society? What levels of critical scrutiny are given to basic social, economic and structural questions of the recipient normative order so as to ensure an effectual transplant? Post-Colonial Africa —West Africa — is a vast field of transitions. Legal Transplant of the transitional justice mechanism of Truth and Reconciliation Commissions (TRCs) has become quite common in the region. I argue that to understand the impact of the l transplant of TRCs, there is a need to understand the functions of TRCs— manifestly and otherwise. One way of doing this is to further interrogate TRCs with the comparative law theory of functionalism. This interrogation I argue, will yield not only ‘the manifest and latent functions’ of TRCs but also strengthen its transformative capacity. More so, the analytical and comparative evaluation of the TRCs seen in parts of West Africa  Liberia, Nigeria and Sierra Leone  via legal transplant and functionalism, will help in sharpening TRCs are effective tools of transitional justice in ways that are not only economically transformative, but also social justice driven and capable of sustaining peace through human flourishing. It must be emphasized that the work seeks to infuse the TRC mechanism with a recipe of socioeconomic and political economic consciousness so that ‘the felt necessities’ of the communities  meaningful leaving, healing, food, education, shelter, access to clean water and capabilities; which often predisposes them to fragility  do not become the forgone alternative in transitional justice. Otherwise the TRC mechanism becomes merely grand gesture lacking in real impact on the wellbeing of transitional societies. In addition, the grand gestures about TRCs will continue to suffer the critique of producing modest results. In the end transitional societies want peace  a peace founded on truth, and justice – and I dare say that that economic justice is indispensable in that search. Economic justice is a legitimate expectation of transitional societies and this work inserts itself directly into the center of the ongoing scholarly debate about the impact of TRCs as mechanisms of transitional justice in the West African region. It does this using legal transplants and functionalism theories. It makes a case that economic and social justice should not be treated as forgone alternatives of transitional justice process but as cornerstones of the entire transitional justice architecture
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Supplemental file(s) description: Dissertation approval
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2018-12-30
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Comparative Law; Economic Justice; Legal Transplants & Functionalism; Social Justice & Peace building; Transitional Justice; Truth and Reconciliation Commissions; Law; international law
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Ndulo, Muna Baron
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Thomas, Chantal
Lasser, Mitchel
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Law
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J.S.D., Law
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Doctor of Science of Law
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dissertation or thesis
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