The Proof is in the Pudding: The Value of Traditional Justice Mechanisms for Post Conflict Africa

Gacaca Courts -Justice on the Grass

The dynamics of contemporary conflicts reveal the difficulties inherent in countries transitioning from conflict to peace and has given birth to transitional justice. The latter is the field of study where justice is not relegated to criminal or retributive justice only but to a holistic range of processes, the ambit of which includes accountability, truth recovery and reconciliatory processes.  Kofi Anan former UN Secretary General defines transitional justice as the “ full set of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuse, in order to secure accountability, serve justice and achieve reconciliation.”  In keeping within these processes and within this framework, particularly with regard to Africa, there has been resurgence in the use of traditional or local justice mechanisms.

In this blog I will thus briefly attempt to highlight the political contingencies that certain states face, which catalyze the use of traditional justice mechanisms and make it so popular within the African transitional justice landscape. I will contend that in some instances traditional mechanisms can adequately address massive human rights violations and establish peace and reconciliation in post-conflict settings. I suggest that the value of traditional justice within politically laden contexts is that they act as catalysts for the promotion of unity. They draw on cultural and religious linkages of interconnectedness that are of value to many African societies, such as the way in which ubuntu was ingrained in the TRC process and the traditional strands of Gacaca conformed into a modern version of Gacaca. This therefore, arguably creates a more “culturally familiar and socially secure” space for people to participate in.  

Drawing on the practices of many African states, since the 1990’s a plethora of judicial and non-judicial justice mechanisms have been used which has served as a testing ground for the development of transitional justice.  In terms of non-judicial justice mechanisms, there have been a variety of truth commissions used, as well as a number of traditional and community based approaches employed. The use of truth commissions was used in Uganda, Zimbabwe, Nigeria, Ghana and South Africa over the years, going as far back to the 1970’s. Some other mechanisms include, the Gacaca courts in Rwanda, the role of the Magamba spirits in central Mozambique, the use of Mato Oput in Northern Uganda, the tradition based practices of the Kpaa in Sierra Leone and the institution of Bashingantahe in Burundi. Ideally the ultimate goal of most of these mechanisms has been to attain some sort of political reconciliation and thus ultimately peace.

Humara Soch - "Our Thoughts" on Terrorism and Mental Illness

Picture Courtesy of Slideshare

Terrorist; Jihadi fighter; suicide bomber; hate preacher; brainwashed radicalised terrorists; these are the terms that often spring associate with South Asian Muslim men. Such terms create a biography of a group who are in fact politically underrepresented, increasingly economically disenfranchised and significantly unaccounted for in discussions surrounding mental health. In order to understand the double standards that exist concerning our understanding of extremism, Islam and mental health, the intersectionality between religion and gender must be unpacked.

It is the war on terror that has re-constructed this notion of the orient and the occident perpetuating a culture of fear mongering and the ‘otherisation’ of an entire religion. This representation of the Muslim man as a relentless evil jihadi fighter has hypermasculinsed the South Asian Muslim man and has homogenised the identity of an entire group leaving little room for debate about the real issue at heart: poor mental health.   

As major global media outlets have subtly alluded to, is the steep rise of terrorist attacks with the so-called incompatibility between western democratic values and Eastern culture. A study conducted by researchers at Georgia State University found that

“the average attack with a Muslim perpetrator is covered in 90.8 articles. Attacks with a Muslim, foreign-born perpetrator are covered in 192.8 articles on average, whilst other attacks received an average of 18.1 articles.US media outlets disproportionately emphasize the smaller number of terrorist attacks by Muslims — leading Americans to have an exaggerated sense of that threat. " The frequency of the reporting of terrorist attacks coupled with the major difference in language that is used to document such attacks makes salient that “mental illness is rarely ever brought up when Islamic terrorism is the subject, because Islamic terror is viewed through a narrowed lens ― a lens that points in the direction of pure, unadulterated evil.” The brutal Charleston shooting serves as a testament to the reality that South Asian Muslim men are marred by the term terrorist whereas white terrorists are depicted as mentally ill. This injustice is precisely why alternate media outlets as well as mental health support services are essential to provide an accurate and just understanding of extremism across the globe.

The blatant separation of western and eastern cultures has reinforced the ethno nationalist and ecological politics across the globe. In fact the rise in right wing sentiment across Europe and the Atlantic correlates with the rise in Islamophobia within these states.

This may seem far reaching, yet a recent report Anti-Muslimism Hate Crime and the Far Right by the Centre for Fascists, Anti-Fascists and Post-Fascist Studies noted that “between 2010-2011 24% of hate crime against Muslims was committed by far right groups.” However the perpetrators of hate crime across the UK are increasingly being characterised by their ordinariness; which perfectly highlights the extent of the problem within our societies today.

Linking Human Rights Education with Empowerment in Development Cooperation

The word empowerment as it relates to women’s rights has become a popular catchword used by development agencies and organisations in development cooperation in recent years. Commonly defined, empowerment means women taking control of their lives through the development of their own skills, confidence and economic status. In other words ‘empowerment’ essentially means the cultivation of agency, comprising both economic and self -worth. Strategies to support the empowerment of vulnerable groups in society such as for women in particular have been said to assist the latter in realizing their own potential, capacity and worth as agents for both personal and structural change. In terms of women’s rights the term empowerment has therefore been closely linked to change particularly where cultural and gender norms are concerned with promoting self-reliance and self –confidence, encouraging women to act independently and to make their own choices. Within the framework of development co-operation it is often understood that development agencies and organisations are not in a position to empower women per se but merely to support and aid such empowerment. Empowerment bluntly understood is thus contingent on the agency and the ‘enlightenment’ of women themselves who come to the realization mainly through the conduit of human rights education that their rights are being violated.

Ethical concerns may however arise if development institutions support or promote gender equality but in the process are culturally insensitive and impose their own views and interests on the culture concerned in terms of gender relations, all the while taking it upon themselves to define those issues or aspects of culture steeped in strong gender roles that require change. In some instances a lack of recognition is given to the fact that each society has embedded and different views on gender relations and that if in fact change is to be envisaged, women themselves need to be the initiators and drivers of such change.  Recognition thus needs to be given to either the initiated or ongoing efforts of women who already continue to challenge certain harmful cultural values or practices by seeking equality on their own accord. Instead noteworthy or incremental steps undertaken by women in their own particular communities are often overlooked for fear that they do not meet the predetermined standard of what “empowerment” should represent or look like to the outside world, to development organizations themselves, and to the latter’s targeted public sector and relevant sponsors and donors.

Furthermore, cognizance must also be given to the fact that members of these targeted communities in some cases also succumb to the influence, power and money of development aid and mimic or pretend to be empowered for lack of education, money and lack of a better future. The resultant effect of this is that the actual empowerment of women in these targeted communities becomes questionable especially because it is arguably less genuine, thereby making the impact of development work in this area difficult to assess and measure. So in other words, difficulty arises in the assessment of the impact of targeted development strategies especially if ‘empowerment’ comes to be based only on external indicators such as group demonstrations, marches and picketing that aim to outwardly invoke a display of empowerment rather than an inward change or transformation. While on a more personal level and within the immediate and extended social circle or family, a women’s preconceived cultural gender role remains unchanged still preventing her from making or taking the necessary decisions and exercising the choices she deems relevant or life changing. In other words “empowerment” becomes a catchword bereft of any true power or efficacy, and which in many cases might be indicative of an outward show of power rather than a truly inward transformation of power having little or no real impact.         

The value of development agencies and organizations in the effective protection and promotion of human rights can be seen as a pivotal conduit through which the spread of human rights can take place, especially if and when they operate from the bottom up keeping the local and cultural context of the communities in which they work in always in mind. The well-known anthropologist Sally Engle Merry for instance has recognized the value of intermediaries such as development agencies, social movements and NGO’s for the development and promotion of human rights. She believes that such intermediaries may be the most suited in translating ideas from the global arena down to the local level and from the local level up to the global arena because they understand both worlds well enough to serve as intermediaries between distinct social worlds but at the same time she also recognizes that such groups are also vulnerable to manipulation and divided loyalties, such as the pressure put onto them by donors. So while these actors may in some instances be intimately connected to competing interests they nevertheless can still play a valuable part in promoting the rights of the disenfranchised and oppressed. The shift to a rights based approach to development in recent years in Merry’s view, has brought the disciplines of human rights and development closer to one another with the resultant effect that human rights education is seen as key to the empowerment of peoples and therefore hence to development.

The AU´s Withdrawal Strategy: Is the Glass Half Full or Half Empty?

AU 28th Ordinary Session, January 2017, Addis Ababa, Ethiopia

The 28^th ordinary session of the Assembly of the African Union, finally came to an end on the 31^st of January 2017 in Addis Ababa. One of the many topical issues towards the end of the summit was the adoption of the common strategy document on withdrawal from the International Criminal Court (ICC). The grievances that African states have with the international criminal justice system are well documented, however, it appears the lack of progress in resolving those contentions has led to the adoption by the AU Assembly, of the withdrawal strategy document. At first instance, this move might tempt one to envision doom and gloom for the continent, let alone the international criminal justice system. However, when one considers the strategy in its entirety, not all is lost, in fact, one could argue that the strategy is a reflection of the glass being half full as opposed to being half empty.  

The withdrawal strategy is a separate document that was adopted within the AU Assembly decision on the ICC. The decision does not provide any details about the contents of the strategy but simply adopts it. The withdrawal strategy document itself, which is on file with the author, seems to detail its main objective, as the achievement of equity in the application and enforcement of global justice in order to enable the establishment and development of a regionalised system of international criminal law. In order to achieve this, the strategy details two avenues, firstly, by way of legal and institutional strategies such as the implementation of the amendments to the Rome Statute; reform of the UNSC; strengthening national criminal justice mechanisms of member states; ratification of the Malabo protocol as well as increasing African representation in the ICC. The second avenue contained in the withdrawal strategy document entails political strategies which involve engagement with the UNSC, Assembly of  State Parties (ASP) and the ICC´s Office of the Prosecutor (OTP) among others. Given the already long struggle by the African group of states for UNSC reform, it would seem most of the legal and institutional strategies have already been in motion for a number of years but to no avail. Some of the main goals expected from the second approach comprising of political engagements include ensuring the withdrawal of the Sudan referral situation by the UNSC as well as ensuring that the permanent 5 members of the UNSC do not veto a resolution to that effect. Given the previous refusal by the UNSC to defer not only the Sudanese situation but also the Kenyan situation, it seems rather unrealistic to expect a change in stance.

Additionally, the withdrawal strategy acknowledges that collective withdrawals are not recognised by international law and alludes to the possibility of individual withdrawals by African states. The document does not in any way explicitly give instructions, nor a timeline for African states to collectively withdraw from the Rome statute. Instead, it outlines a comprehensive contextual (political and historical) background as well as the legal implications for individual African states, should they decide to trigger the withdrawal clause within the Rome Statute. Therefore, any inferences that claim that the adopted strategy implies “collective withdrawal” seems rather misleading as it gives the impression that a mass exodus of African states from the ICC has been triggered. Similarly, the title of the document, “withdrawal strategy” leads to misconceptions and has polarising undertones as it allows for the impression of a mass withdrawal to be created. For the most part, the document is actually rather constructive and puts into perspective some of the most contentious issues in the application of international criminal justice matters whilst calling for continuous dialogue in order to resolve the matters.

Legal implications of the ICC withdrawal strategy

Given that AU Assembly decisions are generally binding upon member states, which may be inferred from Article 23 (2) of the Constitutive Act, it means the decision on the ICC is legally binding. However, according to the 1971 ICJ advisory opinion on the presence of South Africa in Namibia (para. 114) the ICJ opined that the text of a resolution must be analysed in order to assess its binding nature and in that regard, non-mandatory language which does not create obligations for states nor affect their legal rights is non-binding. Since paragraph 8 of the decision simply adopts the withdrawal strategy and does not explicitly provide any instruction to member states, this implies that member states do not accrue any obligations from paragraph 8 of the decision. Consequently, the said withdrawal strategy, which is a separate document from the decision, is legally non-binding on AU member  states as it also creates no binding obligations upon AU member states. The withdrawal strategy can simply be equated to a political message, proposal or recommendation to African states. The Assembly´s adoption of the strategy on the other hand indicates that African leaders continue to be dissatisfied with the current international criminal justice system and might be running out of patience to continue in dialogue.

Given the lack of clear and concise instructions, timeline or repercussions upon non-compliance within the decision as well as the strategy document, each individual state still holds the sovereign right to individually decide and embark upon the withdrawal process as provided for by article 127 of the Rome Statute if they so wish. This implies that, should African states hypothetically individually decide to simultaneously withdraw from the ICC, there would be no new legal implications for  each withdrawing African state apart from those laid out by article 127 of the Rome Statute. 

Possibly due to the fact that the withdrawal strategy document was not circulated to state delegates before the AU Summit, it is my observation that the legal implications of the withdrawal strategy might still be unclear to member states. Additionally, the misleading title of the strategy might have triggered unnecessary panic. This might explain the 13 states which expressed reservations based on the fact that they viewed the strategy document as a violation of the principle of the sovereignty of states. Additionally, that the AU, not being a state and therefore lacking the capacity to ratify treaties, cannot adopt decisions that have implications on the membership of state parties to the ICC. This would be true if the withdrawal strategy was binding and if state parties risked facing sanctions upon non-compliance but the withdrawal strategy makes no such suggestion.