The above sentence is mentioned on the last page of the 1984 Report entitled Brasil: Nunca Mais (Brazil: Never Again), which was the first comprehensive document describing human rights violations related to the dictatorship and State repression perpetrated against labor union members, students, politicians, journalists and clerics. The remarkable fact is that, although this epilogue comes from the testimony of an indigenous person named Kele Maxacali, this same report does not contain information on the persecution suffered by indigenous people during the period from 1964–1985 – people who were perhaps the most invisible victims of the Brazilian dictatorship.

7.1. THE INVISIBILITY OF INDIGENOUS PEOPLE

In fact, with regard to the indigenous population of Brazil, the representation of the past has been characterized by a kind of emptiness or silence for a long time. It is necessary to deal with this prolonged absence of an official policy regarding the human rights violations committed against indigenous peoples, since it seems that they have been excluded, not only from national history but also from the consolidated memory of the dictatorship, as will be shown in this chapter. This emptiness refers to the fact that for a long period of time, at least until 2014 (with the presentation of the final report of the National Truth Commission), indigenous concerns had not been included in the narrative of human rights violations during the Brazilian dictatorial regime, which demonstrates that, even during a democraticera, the rights of the indigenous population are still rarely observed.

7.1.1. INDIGENOUS PEOPLE AND LEGAL PROTECTION DURING THE MID-TWENTIETH CENTURY

One can begin to analyze the twentieth-century legal framework regarding indigenous issues with the 1934 Constitution, which referred to indigenous people only in establishing the authority of the federal government to legislate about the incorporation of such people into the wider nation (following an integration model), as well as establishing that the land where indigenous people were located should be respected and could not be sold or disturbed.

Two months before the passage of the Amnesty Law, in June of 1979, commenting on the controversy surrounding the issue, the Brazilian poet Carlos Drummond de Andrade published a text in his column for the newspaper Jornal do Brasil – an excerpt of which is reproduced as the epigraph above – that would come to mark the course of the law in question from its inception until today: a lack of understanding of its real objectives and the resulting distortion of its essential function. Thus, years after its passage, the amnesty which marked the gradual end of the dictatorial regime in Brazil continues to hold many unknowns, given that, rather than being an act of compassion or repentance and followed by public recognition of the errors committed, it ended up including even those injustices raised by the Inter-American Court of Human Rights.

The fact is that, as Drummond so presciently foresaw, the acclaim for amnesty was the result of political convenience, as it was considered the best that could be achieved at the time. Nevertheless, given the crooked course which the pardon took in its creation, as will be seen below, it was not possible to achieve a model for amnesty that met the parameters of Transitional Justice and international law. As a result, those same past expectations remain unfulfilled, as the poet Drummond described in 1979:

Today, however, those hopes have been pinned on a future resignifying of that law as a task for Brazilian Supreme Court. Below we will analyze the implementation of amnesty in the case of Brazil as one of the steps towards Transitional Justice.

Victims’ movements have driven democratization processes in different parts of the world and, as Gready and Robins have observed, have received credit for the creation of the contemporary discourse regarding Transitional Justice. In the case of the Mothers of Plaza de Mayo (Madres de Plaza de Mayo) and the Grandmothers of Plaza de Mayo (Abuelas de Plaza de Mayo), both in Argentina, women searching for the whereabouts of their children and grandchildren used to come together in the center of power in Buenos Aires, wearing their white headscarves and carrying huge placards with the faces of their missing relatives, and demand their return. Indeed, these women became some of the most visible opponents of the Argentinian regime and gained international recognition with their marches and protest actions. It has even been said that the Argentinian process of accountability has been mainly the result of civil society action and especially action by those grassroots women’s organizations. It is a good example of a case in which public pressure has acted as an important catalyst for Transitional Justice measures and in which victims’ families and human rights organizations have progressively been able to mobilize politicians and judges to seek accountability for past atrocities.

The efforts of the Khulumani Support Group, in South Africa, mark another leading case. That group was formed in 1995 by survivors and families of political violence under the Apartheid regime. The group was founded on the premise that encouraging people to “speak out” (the word Khulumani means “speak out” in Zulu) about the atrocities of the past was psychologically beneficial. Moreover, their strong focus on advocacy worked to keep the Truth and Reconciliation Commission (TRC) and the reconciliation process victim-oriented. Subsequently, Khulumani has grown from just being a support group concerned with helping members to engage with the TRC to being a movement concerned with issues of social justice and Transitional Justice as broadly defined, and has declared that its goals are to end impunity, to ensure reconciliation, and to create agency in place of dependency.

Except for the reparations programs which assisted some of the victims, after 1985 the transition scenario in Brazil remained unchanged for more the 20 years. In fact, although victims and family members of the disappeared never ceased to discuss the topic, it was only at the beginning of 2010 that the societal debate regarding the right to truth and memory made a return, reinforcing the theory that reluctance pervades the local experience with Transitional Justice. The proof of this uncertain process is in the decisions in two cases, filed in different judicial levels, had opposite outcomes. These cases were (i) Gomes Lund et al. (Guerrilha do Araguaia) v. Brazil (the Araguaia Case), under the jurisdiction of the Inter-American Court on Human Rights (IACtHR), decided on November 24, 2010, and (ii) Allegation of Disobedience of a Fundamental Precept (Argüição de Descumprimento de Preceito Fundamental – ADFP ) no. 153, filed by the Federal Council of the Brazilian Bar Association of Brazil (Ordem dos Advogados do Brasil – OAB) in the Brazilian Federal Supreme Court (Supremo Tribunal Federal – STF), decided on April 28, 2010. The following analysis of both cases is useful to forming a broad view of the judicial pillar of Transitional Justice in the Brazilian experience.

4.1. NATIONAL TRIALS

4.1.1. THE STF’S JUDGMENT ON THE LEGALITY OF THE 1979 AMNESTY LAW: CONTINUITY WITH THE PAST

Under Brazilian law, the STF has the power to rule on the constitutionality of any statutes. In light of this authority, the Federal Council of the OAB challenged the legitimacy of the Brazilian Amnesty Law, Law no. 6,683 (1979), in a case known as ADFP no. 153. In that case, the initial petition requested that the STF declare that amnesty granted under the law should not extend to crimes committed by agents of the State against political opponents. In the Brazilian legal system, a reporting judge (or justice in the higher courts) drafts an opinion which the other members of the court either follow or reject. In ADFP no. 153, the reporting justice ruled that the Amnesty Law was in compliance with the Constitution and rejected the plaintiff’s claims, a ruling which the majority endorsed by a vote of 7 to 2.

This book concerns a topic that is almost taboo in Brazilian political culture and the Brazilian political system: Transitional Justice. In the last 50 years, different societies whose citizens have lived under the dominion of authoritarian regimes and civil – military dictatorships have gone through specific processes as they transitioned to democratic regimes. In some of them, the transition resulted in the cessation of repressive policies directed at the opposition and contesting movements. In many cases, the transition was initiated by the ruling elite itself, in an attempt to maintain control of the transition process and to avoid being held directly responsible for the human rights violations that took place during the authoritarian regime. In such cases, the assurances of a transition to democracy were accompanied by commitments to forget the recent past, a kind of full-stop before beginning a new history and new agreements aimed at reconstructing existing institutions through reform or the passage of a new Constitution. Though at first those agreements seemed to represent an advance over the atrocities and violence committed against everyday citizens in the past – especially those with ties to opposition parties – subsequently dissatisfaction came to the fore and demands for justice, accountability, and criminal prosecution of the violators were more frequent.

In other societies, however, the scenarios were very different. The transition processes were accompanied by what is recognized as Transitional Justice. This is a series of political and institutional procedures capable of preventing serious human rights violations from being forgotten and of promoting a permanent policy of collective memory of past events – real policies which institute specific rules for the judgment of the crimes committed and for holding the perpetrators accountable, while simultaneously fostering mechanisms for reconciliation and reparations. Such procedures seek to keep group resentment from remaining just below the surface, capable of manifesting itself in a moment of political crisis and endangering the perpetuation of democratic life. Thus, there arises a minimum degree of consensus at the core of public opinion with respect to the fundamental values underlying the culture and protection of human rights. Among those points of consensus is the refusal to accept practices that were common during the dictatorship, such as torture, persecution, and the suppression of basic civil and public rights and liberties.

It took 26 years from the end of the dictatorship for Brazil to finally see the creation of an official truth commission. For a long time it seemed that Transitional Justice measures in the country would not go beyond the reparation programs of 1995 and 2002, in the quest for reconciliation and reconstruction. On the other hand, despite the efforts of the 1985 “Brazil: Never Again” Report, the truth-telling indirectly produced by the Commission on Political Deaths and Disappearances, and the work of the Amnesty Commission, there was still the impression that what had been done up until then was not enough. This puzzling sense of an unfinished task may be explained, as Hamber has commented in the context of the South African Truth and Reconciliation Commission, because it is highly unlikely that conflict survivors will react in an overly forgiving way, at least in the short term, towards the perpetrators of the violence against them. However, what can we say if this “short-term” reticence lasts for more than 30 years?

In this sense, though the work of the Special Commission on Political Deaths and Disappearances and the Amnesty Commission have been very important for the reconciliation process, in most cases, victims will not be ready to simply put the past behind them at the very moment when reparations are granted. This is because victims might feel that pecuniary reparations are being used to buy their silence in the absence of the truth. Thus, in the Brazilian case, the creation of an official mechanism of truth-telling like the National Truth Commission (NTC) (Comissão da Verdade) in 2012 was a great initiative to combat the belief that pecuniary reparations isolated from truth recovery would be a governmental strategy to close the past prematurely and leave many facts unknown.

This chapter will observe how the NTC was formed and identify its main goals and achievements, but will also comment on gaps in its assessments. This retrospective is important due to the repercussions of its work which still echo in society, several years after the Commission’s end.

On 30 May 2019, the African Continental Free Trade Area (“AfCFTA” or the “Agreement”) officially entered into force. According to the United Nations Economic Commission for Africa, the AfCFTA will cover a market of 1.2 billion people and a gross domestic product (GDP) of USD 2.5 trillion. The massive economic integration of 53 countries has been predicted to generate as much as USD 35 billion in increased trade between African countries. The AfCFTA will allow African nations to capitalise and build on their collective strengths, by breaking down barriers to the movement of goods, services, people, capital and ideas. This alone is expected to increase the bargaining powers of African nations. At the same time, the Agreement is likely to encourage foreign entry into the continent, by creating a single, more attractive, market. This chapter looks a bit closer at this Agreement, with a particular focus on the dispute settlement mechanisms that exist thereunder.

The African Union, in 2015, fast-tracked the AfCFTA by putting negotiation of the Agreement at the top of its priorities for the continent. This followed the initial introduction of the idea at the 18th Ordinary Session of the Assembly of Heads of State and Government of the African Union, held in January 2012. During this meeting, a decision to establish a continental free trade area was adopted, putting in motion the negotiation process for this continental document. In an action plan adopted in 2014, titled “Action Plan for Boosting Intra-African Trade and Fast-Tracking the Establishment of a Pan-African Free Trade Area”, the African Union expressed concern over Africa’s inability to use trade to create sustainable economic growth. The plan states that, “[t]he failure of African trade to serve as a catalyst for sustainable economic growth and poverty alleviation stems partly from its three interrelated basic features: size, structure and direction”. The African Union noted that Africa’s share of global trade was insignificant, at only 3%. At the same time, trade was heavily concentrated on primary commodities that have slow growth and high price instability. Finally, and perhaps most notably, it referenced the fact that the overwhelming majority of African trade was external, with only 10% of trade on the continent being intra-African.