Back Issues

Truth commissions and prosecutions: Two sides of the same coin?

2008-03-17

Joseph Yav Katshung

Yav Katshung Joseph argues that as truth commissions multiply around the world it is important to look at their relationship to prosecutions and justice in an immediate and historical sense. Are TRC's designed to generate more truth, more justice, reparations, and genuine institutional reform? Or are they designed to undermine the State’s and society’s legal, ethical and political obligations to their people?


INTRODUCTION

Truth commissions have been multiplying rapidly around the world and gaining increasing attention in recent years. They are proposed for different reasons and driven by diverse motives. They can be used firstly, for the purpose of national reconciliation and in the interests of the society; secondly, sometimes they can be used to avoid accountability or prosecution and merely to shield an offender from justice. Following recent outbreaks of violence in the aftermath of Kenya's presidential election last December, stakeholders continue to make strides toward peace. Parties have agreed among other things to a Truth, Justice and Reconciliation Commission, which will be established through an Act of Parliament. The Commission will inquire into human rights violations, including those committed by the state, groups, or individuals. This includes but is not limited to politically motivated violence, assassinations, community displacements, settlements, and evictions. It will also inquiry into major economic crimes, in particular grand corruption, historical land injustices, and the illegal or irregular acquisition of land, especially as these relate to conflict or violence. Other historical injustices shall also be investigated. The commission will primarily focus on events dating back to independence, December 12, 1963 up to February 28, 2008. However, it will as necessary look at antecedents to this date in order to understand the nature, root causes, or context that led to such violations, violence, or crimes. This gives us opportunity to share views on adequate truth commissions and their relationship with prosecutions.

TENSIONS BETWEEN TRUTH COMMISSIONS AND PROSECUTIONS

Very often, when a country wishes to move from dictatorship to democracy or from war to peace, various ways may be tried and these include trials in an international or national court of law and non-punitive approaches such as truth commissions. Thus, “…a country’s decisions about how to deal with its past should depend on many things: the type of dictatorship or war endured, the type of crimes committed, the level of societal complicity, the nation’s political culture and history, the conditions necessary for dictatorship to reoccur, the abruptness of the transition, and the new democratic government’s power and resources [1].” One may adds the “interests” of the country.

Different countries have chosen widely different strategies to deal with the past including prosecutions in one hand and, truth commissions and other non-punitive approaches, in the other. Although justice is crucial after violations of human rights, it may not be possible or practical. International tribunals are useful, but they are not the full solution. They are hugely expensive and can try only a small group of perpetrators, the most “responsible”. Ironically, many times, those who are tried are not the most responsible but the most “available” in the country. Therefore, justice becomes extremely selective and seems to be the way of granting de facto amnesty to those who fled the country and those responsible. Then come the necessity of other non-judicial mechanisms such as truth commissions not as a panacea for all the challenges of transition, or an alternative, but as a complement way to be used by broken societies, in order to bring the benefits of justice to the victims and to the political culture.

However, this is challenging and there are always tensions between the requirements of the criminal justice system and those of non-punitive approaches to gross and systematic human rights violations. Rightly, Charles Villa-Vicencio pointed out that, “the tension between justice and reconciliation and revenge, prosecution and amnesty is grounded as much in principled debate as in a tug-of-war between deep emotions, unresolved memories and uncertain futures. It is a tension that is best not collapsed into an attempted neat synthesis of a complex set of contradictions. The contradictions need to be sustained. The demands of the one side need to impact on the other. It is through honest encounter that opposing groups stand the best chance of knowing that they need one another. It is then that new possibilities begin to be imagined-and sometimes realised [2].

DOMESTIC TRUTH COMMISSIONS AND PROSECUTIONS: REACHING FORWARD

Truth Commissions are established to officially investigate and provide an accurate record of the broader pattern of abuses committed during repression, civil war and unjust periods. There have been more than thirty truth commissions worldwide, including in Sierra Leone, DRC, Morocco, and more importantly South Africa. “Truth commissions today”, according to Jose Alvarez, Professor of International Law at Columbia University, “are inescapable tools in establishing the truth of past crimes and a means for victim recompense and instruments to promote peace and reconciliation.”

Most recently, the United Nations Secretary-General’s report on “The rule of law and transitional justice in conflict and post-conflict societies” praised them as “a potentially valuable complementary tool in the quest for justice and reconciliation” and in “restoring public trust in national institutions of governance [3]”. The increased interest in truth commissions is, in part, a reflection of the limited success in judicial approaches to accountability, and the obvious need for other measures to recognise past wrongs and confront, punish or reform those persons and institutions that were responsible for violations. Successful prosecutions of perpetrators of massive atrocities have been few, as under-resourced and often politically compromised judicial systems struggle to confront politically contentious crimes. With an eye on building a human rights culture for the future, many new governments have turned to mechanisms outside the judicial system to confront, as well as learn from the horrific crimes of the past [4].

However, a truth commission should at the same time never be allowed to circumvent international human rights law or, more specifically, to ignore the punitive demands of the criminal justice.

Related to the South African case, where there was a Truth and Reconciliation Commission (TRC) with a possibility to grant a conditional amnesty [5] in exchange of a full disclosure and shown remorse, could we say according to the Rome Statute that, the TRC decisions or proceedings were taken for the purpose of shielding the person concerned from criminal responsibility?

One should take into account and acknowledge that the South African TRC was democratic and genuine. The purpose was not to shift or to hide someone or a group from prosecution. It was in the interest of peace, reconciliation, etc. In my view and for many others, the South African TRC was not there to shield perpetrators but to seek the truth for national reconciliation. South Africa acted in good faith; the TRC was established by the best efforts of negotiators to end violations of human rights. This is justice, to my view and I may say in the interests of the entire country/society, not in the interest of prosecuting some few and not others, and still walk free as if they were granted de facto amnesty.

Emphasising this argument, Juan Mendez, stated that:

“In most parts of the world, the South African example stands out as an attempt to achieve reconciliation and forgiveness without impunity. Others decry the fact that most perpetrators of the worst crimes of apartheid did evade justice. In my view, however, the South African exercise with truth, justice and reconciliation is notable for its insistence on hearing the victims, consulting with all members of society, allowing participation by all stakeholders, and conducting the exercise in complete transparency. It is in this sense that the South African example continues to inspire all those who decide to turn a page in a country’s history without forgetting the plight of those who suffered [6].”

Therefore, we may pause with Naomi Roht-Arriaza that, if perpetrators appear before an independent and democratic truth commission that hears applications for conditional and accountable amnesty, they should not face prosecution by the ICC. In this case, amnesty (conditional) is granted for the purpose of domestic reconciliation and not to shield him/her/(the perpetrator) from criminal prosecution [7]. However, can all truth commissions have the same purpose of not shielding perpetrators? It is important to draw the line in order to avoid some contradictions between truth commissions and prosecutions. The next point will deal with that.

THE QUESTION OF ADEQUATE TRUTH COMMISSIONS IN ORDER TO COMPLY WITH INTERNATIONAL STANDARDS

We should ask ourselves if all truth commissions should be considered as genuine and serve the interests of the country. As we may know, in some countries the purpose of a truth commission may be not genuine and reasonable. This is challenging and it will be useful to deal at the case-by-case level. Rightly, Professor James Crawford of the University of Cambridge has said in relation to Article 17 of the Rome Statute:

“I think there is a question about truth commissions, because you can’t say a priori which ones are a reasonable response to the situation, and which ones are a cover-up. It’s going to require extreme care by the prosecutor. There may be some problem there with the capacity to subvert those processes if they are reasonable, and we’ll just have to hope that the institutions within the court take a sensible view about it. But complementarity extends to covering internal processes which don’t necessarily involve prosecutions of individuals, so there’s no reason why the principle of complementarity ought not to cover an appropriately constituted truth commission [8]."

Moreover, Charles Villa-Vicencio, talking about truth commissions states that: “… They demand fewer resources than courts and, if designed properly, can provide some accountability [9].” Using the words such as “if designed properly”, meant that we may find some not properly designed and therefore, the need for benchmarks in order to comply with international law. Can we say that the South African TRC was able to provide accountability and was consistent with international law?

Despite some few critiques, the South African TRC is internationally recognised, and has been favourably endorsed by numerous international human rights organisations and commentators. The TRC was passed pursuant to a valid Act of Parliament and imposes a form of public procedure and accountability for the actions of perpetrators. It was the country's decision in favour of peace. This is not impunity because there was political consensus in South Africa that getting as much of the truth out as possible and having fewer, but more effective prosecutions, was a just result. Given that, this was what the majority of the public wanted, that is not impunity.

In this line, speaking on the relationship between the prosecutorial mandate of the ICC and the amnesty administered by the South African TRC, the Secretary-General of the United Nations has observed:

“The purpose of the clause in the Statute (which allows the Court to intervene where the state is ‘unwilling or unable’ to exercise jurisdiction) is to ensure that mass-murderers and other arch-criminals cannot shelter behind a State run by themselves or their cronies, or take advantage of a general breakdown of law and order. No one should imagine that it would apply to a case like South Africa’s, where the regime and the conflict which caused the crimes have come to an end, and the victims have inherited power.

It is inconceivable that, in such a case, the Court would seek to substitute its judgement for that of a whole nation which is seeking the best way to put a traumatic past behind it and build a better future [10]”.

As noted, the South African TRC has been recognized and even endorsed as a valid means of dealing with crimes arising out of apartheid [11]. Moreover, state practice [12], international jurisprudence [13] and authors [14] confirm that the Rome Statute does not preclude a state from utilizing amnesty as an effective means of prosecution. However, what about the Congolese TRC?

In assessing if the Congolese TRC met some minimal requirements to approach legitimacy under international law, one can point out that the Congolese TRC was not created and operated transparently in order to sustain democratic legitimacy. There was a clear lack of citizen involvement in the creation and functioning of the TRC, and openness to ensure domestic legitimacy. There was no endorsement of the TRC and its work as a mechanism of transitional justice. Moreover, there are many critiques because commissioners came from different factions, and were not chosen by means of a process, which tried to ensure a democratic spirit and practice, and transparency. Therefore, it seems that the purpose of such a commission, was to be a “Truth Omission” instead of a “Truth Commission” and cannot encounter support by the international community [15].

In order for truth commissions to merit international legitimacy, Professor Crawford suggested that one possible test would be whether the procedure in question had been freely ratified by the successor regime, “so it’s not just a way that the generals can sign their amnesty on the way out of the door [16].” And for that, Charles Villa-Vicencio [17] helps us by saying that truth commissions needs at a minimum to incorporate the following:

- There needs to be convincing evidence that the majority of citizens endorse the provision as a mechanism of transitional justice;
- The disclosure of as much truth as possible concerning the gross violations of human rights;
- Accountability of those responsible for gross violations of human rights, recognising that this need not to be in the form of retributive sentencing by the state;
- A mechanism needs to be put in place to provide a form of relief or reparation to victims whose rights are suspended by a qualified amnesty provision;
- The suspension of prosecutions in a transitionary situation should not be a pretext for the abrogation of other requirements of international law;
- A forum in which victims and survivors may tell their stories and questions;
- Prosecutions should remain an option both during and after the TRC against those perpetrators who did not adequately participate in the process.

Although we agreed with Charles on these criteria, the last one seems not to be consistent. Truth commissions are not alternative to prosecutions, all are two sides of the same coin and should be used complementarily but sequencing for their success. Saying that “prosecutions should remain an option both during and after the TRC against those perpetrators who did not adequately participate in the process” seems to be too simplistic and could undermine the entire effort to heal the wounds of the nation and to fight against impunity.

In addition to satisfying the above minimum criteria for international legitimacy, a Truth commission should also be created and operated transparently in order to sustain democratic legitimacy. Citizen involvement in the creation of a truth commission, and openness to media coverage of its operations, are necessary to ensure domestic legitimacy [18]. And Juan Mendez put it clearly by saying:

“There are two conditions of legitimacy that we should insist upon for any program of transitional justice. First, transitional justice policy should be developed as part of an open, democratic debate, which includes consultation with and participation of the relevant stakeholders and full transparency of decisions. If decisions about how to reckon with the past are adopted exclusively by the parties to a conflict, without appropriate consultations with the victims of abuse or with society at large, the result will almost always generate dissatisfaction and rejection. Second, transitional justice policy should be contemplated in as comprehensive and holistic an approach as possible. This is not only because there will always be an ‘impunity gap’, meaning that many cases of abuse will not be resolved by trials, thus generating the need for a broader treatment of the universe of violations. It is also because the emerging principles in international law … establish that the obligations of the State are four-fold: to prosecute perpetrators, to unearth the truth, to offer reparations to victims, and to reform abusive public institutions [19].

CONCLUSION

In many transition periods two methods are used to establish record of grave human rights crimes following a conflict/war: prosecutions at national or international level and truth commissions with various names, which investigate situations and submits reports. Both of these two methods are not sufficient and therefore, the need to complement each other.

There is a growing demand for transitional justice mechanisms such as truth commissions, around the world. The problem however, it is to test if all those mechanisms imply good faith. Is the effort designed to generate more truth, more justice, reparations, and genuine institutional reform? If so, they are welcome. If the objective is to evade the State’s and society’s legal, ethical and political obligations to their people, they should be rejected. The answer should be found in the design of the process itself, but also in the degree of participation, consultation, and transparency that surrounds them (e.g. of South Africa).

Moreover, we should start by avoiding seeing truth commissions as an alternative to prosecutions. Even if many of them have been accompanied by grants of amnesty to the major perpetrators of human rights crimes, viewing truth commissions, as substitute for prosecutions is not a right way and can lead to contradictions. Therefore, we should try to consider truth commissions as complementary to national and international prosecutions, not to substitute them. They are two sides of the same coin: transitional justice. However, the processes must be sequenced in a way that one does not affect the effectiveness of the other. Accordingly, Scharf has said, “a country should not rush ahead with prosecutions at the cost of political instability and social upheaval or that every single perpetrator must be brought to justice, an impossible task in most countries that have experienced widespread human rights abuses. By documenting abuses and preserving evidence, a truth commission can enable a country to delay prosecutions until the international community has acted, or the new government is secure enough to take such action against members of the former regime [20].”

Furthermore, it may be useful to examine the utility of conducting prosecutions after Truth commissions as a means of uncovering more “truth” that was not revealed through the process. Because, like in the South African case, if those people who did not apply for amnesty or those whom the amnesty was refused, do not face trials, someone could say that there is de facto amnesty and therefore, the purpose of a TRC was just to shield some perpetrators. In this hypothesis, the process will violate the international law and will not be in the interest of justice (society as a whole). So, we should look on the possibilities to trials for those persons in order to avoid impunity, contradictions and allow the roots of a just society to take hold.

*Yav Katshung Joseph is a Human Rights lawyer and. Lecturer at the Faculty of Law, University of Lubumbashi, Democratic Republic of Congo.

**Please send comments to editor@pambazuka.org or comment online at www.pambazuka.org

Footnotes are available at the URL shown below
NOTES

1] Tina Rosenberg, “Afterword: Confronting the Painful Past”, in Martin Meredith, Coming to Terms: South Africa’s Search for Truth, 1999, p 328


2] Charles Villa-Vicencio, “Reconciliation as Political Necessity: Reflections in the wake of Civil and Political Strife”, p.3

3] Paavani Reddy, “Truth and Reconciliation Commissions Instruments for Ending Impunity and Building Lasting Peace” in The Chronicle,
See http://www.un.org/Pubs/chronicle/2004/issue4/0404p19.html

4] Priscilla Hayner, Same species, different animal: how South Africa compares to truth commissions worldwide, in Charles Villa-Vicencio and Wilhelm Verwoerd, “Looking Back, Reaching Forward: Reflections on the Truth and Reconciliation Commission of South Africa” UCT Press, 2000, p34-35

5] Boraine, Alexander, “Amnesty in exchange for truth: Evaluating the South African model” in “A country Unmasked” Pgs 258-275

6] Juan E Mendez, “Transitional Justice in Historical Perspective”, Outline, Somerset West Conference, March 28, 2005 Inaugural Address

7] Naomi Roht-Arriaza, “Amnesty and the International Criminal Court”, International Crimes, Peace, and Human Rights: The Role of the International Criminal Court (Ardsley, New York: Transnational Publishers Inc., 2000) at 79.

8] James Crawford, See http://www.crimesofwar.org/onnews/news-us-icc.html (accessed on 4th December 2007)

9] Charles Villa-Vicencio and Erik Doxtader (Ed) 2004, Pieces of the Puzzle: keywords on reconciliation and transitional justice, Cape Town, pp.89-90

10] Charles Villa-Vicencio and Erik Doxtader (Ed) 2004, op.cit, p 91

11] Kader Asmal, International Law & Practice: Dealing with the Past and the South African Experience, 15 AM. U. INT.’L L. REV. 1211, 1228 (2000).

12] Azanian Peoples Organization (AZAPO) v. The President of the Republic of South Africa, 1996 (4) S.A.L.R. 671, at 30 (South African Constitutional Court);

13] Prosecutor v. Tadic, Appeals Chamber, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, No. IT-94-1-AR72 (Oct. 2,1995) at 6

14] Leila Nadya Sadat, Universal Jurisdiction, National Amnesties, and Truth Commissions: Reconciling the Irreconcilable, in Stephen Macedo, Universal Jurisdiction: National Courts and the prosecution of Serious Crimes Under International Law (2003); Scharf, Amnesty Exception, supra note 33; John T. Holmes, The Principle of Complementarity, in 41-79 The International Criminal Court: The Making of the Rome Statute (Roy S. Lee., ed., 1999); Michael P. Scharf, Swapping Amnesty for Peace: Was there a Duty to Prosecute International Crimes in Haiti?, 31 TEX. INT’L L.J. 1, 4-5 (1996).

15] Critiques reside especially in the way of nomination and the issue of openness by involving civil society and other parties.

16] James Crawford, See http://www.crimesofwar.org/onnews/news-us-icc.html

17] Charles Villa-Vicencio, Truth Commissions, in Charles Villa-Vicencio and Erik Doxtader (Ed) 2004, op.cit., p 92

18] See Andre du Toit, “The South African Truth and Reconciliation Commission (TRC): Local History, Global Accounting”, in Politique Africaines 92 (2003), p7

19] J. Mendez, 1997. “Accountability for Past Abuses”, Human Rights Quarterly, 19, pp. 255- 282.

20] Michael P. Scharf, “The Case for a Permanent International Truth Commission”, in Duke J. Comp.& Int’Law, Vol.7:375, 1997, p.399

More...

Forget The Hague: Mugabe must face justice in Zimbabwe

2008-03-12

Blessing-Miles Tendi

Blessing-Miles Tendi argues that If Mugabe is to stand trial for crimes against humanity, he must do so as close as possible to the site of his crimes - Zimbabwe.


On February 27, 2008, the BBC’s John Simpson asked Simba Makoni if he ‘would not stand against the principle of sending President Mugabe to The Hague’.

Makoni replied: ‘No. We will be a full member of the international community and we will act in accordance with the normal standards of international justice’.

International newswires immediately went into an excited frenzy about the prospect of Mugabe standing trial at the International Criminal Court (ICC), which functions to try individuals for genocide, war crimes and crimes against humanity.

This ‘international’ excitement needs to be shot dead in its tracks.

Since the treaty for the ICC was assented to by countries around the globe in 1998, 105 countries have ratified the treaty to date. Zimbabwe is not one of these 105 countries hence the ICC has no jurisdiction over Zimbabwe.

Furthermore, the ICC treaty came into effect in 2002. The ICC can only prosecute crimes committed after 2002. The crime that could provide the strongest basis for Mugabe standing trial at a court such as the ICC is the Gukurahundi atrocities. However, the Gukurahundi was perpetrated before 2002.

Mugabe cannot stand trial for the Gukurahundi at the ICC.

Mugabe committed many crimes after 2002 but the burden is on those who advocate for Mugabe standing trial at The Hague to prove how these crimes qualify as genocide, war crimes or crimes against humanity.

And while it is within the power of the UN Security Council to refer a human rights situation to the ICC for investigation, this has failed to materialise for years now and it is debatable whether consensus for such a measure can ever be reached given some of Zimbabwe’s long standing allies on the Security Council.

States that have not ratified the ICC treaty can opt to accept the court’s jurisdiction but for Zimbabwe, this option is undesirable and unnecessary.

Zimbabwe’s justice system has been corrupted by Zanu PF over the years but it remains competent and it has retained a considerable level of independence despite manifold state pressures. More importantly, there is a pertinent tension between the universal jurisdiction embodied in the ICC and the local.

Justice that is local or national is better felt than justice delivered in distant international courts such as the ICC.

Justice at The Hague is not felt by widows deep in Tsholotsho who lost their husbands to the Gukurahundi. It is not felt by the homeless and displaced victims of Murambatsvina who are living like cockroaches on Caledonia farm. If Mugabe is to stand trial, he must do so as close as possible to the site of his crimes - Zimbabwe.

The appropriate place for Mugabe to face the judgment of history is in Matabeleland where he had thousands slaughtered and in the areas where Murambatsvina was conducted.

There are many unanswered questions in Zimbabwean history, and there is a need for national healing and reconciliation. Mugabe has a part to play in addressing these issues, and he can only do so adequately if his fate and confessions are a national affair.

The likes of John Simpson, the ‘international’ media, the executive director of the International Bar Association Mark Ellis, and some members of the British House of Commons, who make a lot of noise about Mugabe standing trial at The Hague must be reminded that Zimbabweans have a strong historical perspective, and that Zimbabweans are not blind to their double standards.

For instance, were it possible for Mugabe to stand trial for the Gukurahundi at The Hague, serious questions about British sins of omission and commission in Zimbabwe would arise. Britain was aware of the killings in Matabeleland but in 1983, at the Commonwealth Heads of Government Summit in India, British Prime Minister Margaret Thatcher did not raise the matter of the Gukurahundi.

In the same year, Malcolm Rifkind, Foreign Office Minister, visited Zimbabwe and held diplomatic consultations with Mugabe. Rifkind did not mention the Gukurahundi in his report to the British House of Commons on his return to London.

Perence ‘Black Jesus’ Shiri, the dreaded commander of the Fifth Brigade during the Gukurahundi, was the first Zimbabwe National Army (ZNA) officer to attend London’s Royal College of Defence Studies as an honoured guest in 1986. The Royal College of Defence Studies describes itself as ‘the senior Defence academic institution in the United Kingdom… the most prestigious institution of its kind in the world’.

Retired General Edward Jones, Director of the British Military Advisory and Training Team (BMATT) in Zimbabwe from 1983 to 1985, explained the motive for Britain’s offer of tenure at the Royal College to Shiri as follows: “Undoubtedly, he was the man who was going to be important in Zimbabwe and I think it was important that we should influence him positively in so far as we could.” In 2000, Tony Blair’s Labour government authorised the sale of spare parts for British made Hawk 200 jets to the Zimbabwe Air Force, now commanded by the same Perence Shiri. Farm invasions during the Third Chimurenga were coordinated by ZNA officials with Shiri playing a key coordinating role.

The military man whose excesses Britain had turned a blind eye to in the past, honoured at London’s Royal College and supplied with military parts became a key impediment to attempts at ending the violent farm invasions. In light of this, the ‘international’ moral grandstanding about Mugabe going to The Hague must be abandoned.

There is no powerful ‘international’ lobby for Tony Blair and his associates - or George Bush and his cronies for that matter - to stand trial at the ICC for their naked crimes in Iraq. The few criminal cases the ICC is dealing with today involve countries such as the Central African Republic, Sudan, the DRC and Uganda. Thorny questions about African sovereignty are brought into play by this focus on crimes in Africa. There is clearly one standard of international justice for the powerful and another one for the weak.

The ‘international’ clamour for Mugabe to stand trial at The Hague must be seen against this background.

*Blessing-Miles Tendi is a researcher at Oxford University.

**Please send comments to editor@pambazuka.org or comment online at www.pambazuka.org

Congo women - violence in war and in peace

2008-03-12

Marie Claire Faray-kele

Marie Claire Faray-kele argues that even though the bodies of Congolese women were used as battlefields in the DRC war, they are now being excluded from peace process.


As women from around the world join in solidarity this International Women’s Day, we are reminded that gender-based violence is one of the greatest threats to women’s advancement, empowerment and security. Sadly, for many of my sisters in the Democratic Republic of Congo (DRC), sexual violence of the worst kind is a daily reality. Some of them have suffered such grievous sexual abuse; that they would struggle to walk to water well, let alone join a demonstration for female emancipation.

There is no denying that the human cost of the conflict and instability in the DRC has been cataclysmic. Since 1997, more than 4 million people are estimated to have died as a result of the war. But so far there is no figure for the number of Congolese women who have suffered the petrifying and dehumanising ordeal of systematic rape. While rape and sexual violence have been a product of many conflicts, the scale and systematic nature of the rapes in eastern Congo renders it a weapon of war. Sexual violence has been used to punish entire communities for their political loyalties, to displace populations from their lands or as a form of tribal cleansing.

As part of the UK disapora of Congolese women, I am in regular contact with members of women’s organisation in the DRC, such as the Solidarity of the Women of Burhalé (SOFEBU), based in the east of the country. The group was founded in the 80s, in recognition that women can only become politically emancipated once they have gained economic empowerment. So SOFEBU women set up collective crèches, manage livestock and agricultural projects and form cooperatives in jam-making or clothes dye production. All these projects are managed and implemented by women. But since 1997, many of my fellow Congolese women have lost everything after being subjected to rape and other gender-based violence. Some of these women and girls have been held in sexual slavery. Kidnapped at gunpoint, they were raped by gangs of armed men; who sometimes then mutilated their genitals. Many women are so badly that they have been left with “obstetric fistula”, a condition that leaves them incontinent and unlikely to survive a full-term pregnancy. There are no exemptions from the rapists’ barbarity: victims are as young as three and as old as 75.

Even if these terrible physical injuries do heal – which is unlikely given the scarcity of medical provision in the region – the victims then face the appalling humiliation of being rejected from their husbands, due to the stigma of rape.

These women become silent, invisible. They have no possibility of a social life. Their levels of poverty increase sharply. They cannot seek any justice, even if they know the rapist’s identity. The conflict in the DRC is often referred to as the forgotten war in the international media. But the international community also overlooks the fact that the rapes and the killings have been fuelled by the flood of AK-47 rifles, revolvers and pistols into the African Great Lakes region. These weapons are the rapist’s and killer’s tools of choice and have continued to facilitate the brutality, despite a UN arms embargo.

They are smuggled across the borders from neighbouring countries such as Angola, Sudan, Rwanda, Burundi, Uganda, and South Africa, but of course they originated in the United States, Europe and the former Soviet Union. A further source of weaponry is provided by multinational companies who flock to eastern DRC to extract coltan, which is used in the manufacture of laptops and mobile phones. Showing an astonishing lack of responsibilty and disregard for human rights, these companies employ local men whom they then arm with guns for "security purposes."

Even UN peacekeepers, the very people who should be protecting the population, have been accused of trafficking gold and weapons. A recent investigation conducted by the Chief of U.N. Peacekeeping was criticised for its lack of transparency, slow progress and narrowness of scope. No system has been set up to observe and control the traffic of guns and no arms brokers or traffickers have been punished and brought to justice.

There is a crucial stumbling block in the DRC disarmament process because women were not and are still not adequately involved or informed. In fact, women are practically excluded from the peace building processes all together. The latest peace agreement was signed in late January 2008, at a conference in Goma, eastern Congo. Out of 600 delegates, there were only 33 women in attendance. Out of a six page document, the only referral to rape and sexual violence was in a singular paragraph that read: “[all parties hereby agree to] the cessation of all acts of violence in all forms towards the civilian population, particularly women and children, the elderly and handicapped.”

Unlike acts of mass killings, which are referred to as massacres, there is no noun for the act of deliberate, systematic rape. Congolese women want to know why not. They want a strengthened, independent and effective justice system in the DRC; and they want to see this disgusting crime investigated at the highest levels of the International Criminal Court. Crucially, they also want to be active in pursuing this justice. It is in the interest of women worldwide that violence against our gender at all levels is recognised and punished - and not witnessed on this scale ever again.

*Marie Claire Faray-kele is a Research Scientist in Infectious Diseases Centre, Institute of Cell and Molecular Science (ICMS), Queen Mary's School of Medicine and Dentistry in London.

**Please send comments to editor@pambazuka.org or comment online at www.pambazuka.org

Human Rights defenders role in promoting just peace and democracy

2008-03-13

Ndung’u Wainaina

Ndung’u Wainaina argues that there has to be an unwavering commitment by African societies to human rights - and that part of that vigilance also means protecting human rights advocates who might be under threat from the state or other actors.


Building the rule of law and respect of human rights in a post-conflict situation is challenging. The problems which are borne out of conflict are, notably, the loss of human lives, displacement of the population, destruction of property, trauma, sexual assault and violence. These disastrous consequences contribute to instability and the destabilization of a country. Peace remains fragile. To reinforce the return of stability, specific situational context process must be adopted to include a harmonious balance between the fight against impunity, the necessities to create a solid base for a lasting reconciliation, the respect for human rights and the rule of law. These fundamental issues must be integrated with an equal redistribution of resources and the participation of all. Kenya human rights defenders have faced extraordinary challenges throughout post-independence era yet they have worked intensely and with great courage. But now is not the time to rest on their laurels, as this period of political transition offers both opportunities and challenges for the protection and promotion of human rights; particularly in an Opposition vanquished or demobilized scenario.

Human rights defenders are the experts on the historical lessons and understand current situation prevailing in Kenya. A great lesson has been the importance of a vibrant civil society and media in checking the excesses of ever crafty political class. In the context of current conflict, and the threat to democratic rights, the unwavering commitment by civil society and the media to insist that human rights be upheld demonstrated the significance of these independent voices. A vibrant, diverse civil society and a free and fearless media will continue to be essential in the transition period ahead. It is also essential that, human rights defenders maintain their independence from the political process, and defend the human rights of all Kenyans. Human rights are not political, they do not pertain to only one group or other of society, and a shift in political power must not lessen vigilance of human rights defenders.

An important development we have witnessed during the current political crisis in Kenya is the rising tide of awareness of commitment to human rights by the wider Kenyan society. Though there were cases of serious threats and extremisms, against independent voices of human rights defenders who rose above parochial and partisan ethnic politics. The expressions of social solidarity, of the aims for a more inclusive society which does away with ingrained discrimination, offer great hope and opportunity for human rights in the future. Discrimination on the basis of social orientation and ethnicity must be tackled in the new Kenya. Discrimination against women, which is often multiple discrimination as it is added to patriarchal systems and ethnicity-based discrimination, also needs to be systematically eradicated.

The positive and significant political developments that have happened, including the signing of the Political Agreement and the establishment of a grand coalition government, have raised great expectations, particularly with regard to an end to discrimination, inequalities and impunity. As the peace process advances, the complexities of bringing about such changes, which require political will and the uprooting of deep-seated traditional patterns of prejudices and stereotypes, have become more apparent. The enactment of new democratic constitution and undertaking comprehensive transitional justice policy remains a crucial step toward the creation of a more participatory, inclusive and equal society, but there are still obstacles to overcome in order for that reality to take place. Equally the new government has to make strong commitments to human rights culture. These commitments must be seen through, in terms of policy and action. Though there is continued commitment to human rights standards through political statements, political leadership must ensure that its cadres at all levels understand these commitments and fulfill them. Even if difficulties arise in the political process, there must be no backing away from these commitments to protect human rights by any party.

While there has been established commitment to observe and adhere to the agreement between the government of Party of National Unity[PNU] and the Orange Democratic [ODM], it is essential that the parties move ahead rapidly to establish a credible and strong mechanism to monitor the implementation of the agreement. This must include an effective mechanism for reporting and dealing with violations of the agreement, in order to ensure that problems which occur at the local level are dealt with quickly and fairly before they blow up into larger or intractable problems.

Another key issue for human rights defenders, seeking to consolidate the rule of law in the transition period and for the longer term, is that of accountability for present and past human rights violations. There must be accountability for human rights violations of the past and the present. Without accountability and without justice, the culture of impunity will never end. Human rights defenders shall continue vigorously to call for action to resolve all outstanding cases of grave human rights violations. Families and relatives of the affected should not have to wait any longer to see a thorough and credible process initiated by the State to unmask truth and administer justice. It is legal obligation and moral imperative.

The issue of accountability for violations committed during the conflict and in the past has wider implications. The process of prosecutions, assistance to victims, truth commission, and institutional reform are some of the measures which Kenya should adopt to address the consequences of the post-election violence violations and past human rights violations in order to rebuild a society based on respect for human rights and the rule of law. It is important, that Kenyans have an open discussion about what measures are needed. This discussion itself must be inclusive, and especially bring in people from marginalized and discriminated against groups, victims and women. One of the important lessons from other countries which have come out of conflict is that such transitional justice measures, in order to be effective, need the pro active engagement of members of civil society at all levels.

The hopes of Kenyans are very high, with constant calls on leaders to ensure that the political process ahead respects the aspirations for a fairer society, one that respects the human rights of all. Fulfilling these hopes will require commitment and hard work from Kenyans from all walks of life. The human rights community of Kenya with their regional and other international friends must remain vigilant and maintain its integrity and independence. It will need all to work hard to ensure that the political process is effective as a step toward a permanent end to perpetual conflicts in Kenya and that the political process respects and protects the human rights of all Kenyans.

Another prerequisite for creating a climate free of fear, impunity and intimidation will be the commitment of all parties, organizations and their constituencies to respect the peaceful views and progressive activities of others. Building trust and dialogue must replace threats, intimidation and acts of violence to resolve differences. Security system must also take effective measures to end abuses by its cadres. Transforming a climate of impunity into a culture of accountability will be essential to a successful transformation and sustainable peace. The lack of progress in addressing impunity is deeply worrying. It will require political will, courage and determination to move the process forward, but it is one that cannot wait. The political ceasefire agreement still provide a historic opportunity to create a fully inclusive and democratic State which protects the human rights of all and enables all Kenyan people to participate equally and effectively in society governance. It is the responsibility of all parties and Kenyans to ensure that this promise is fulfilled.

*Ndung'u Wainaina is the Director of the International Center for Policy and Conflict (www.icpcafrica.org)

**Please send comments to editor@pambazuka.org or comment online at www.pambazuka.org

Muamar Gaddafi: The brother leader is wrong on revolutionaries in power not retiring

2008-03-18

Tajudeen Abdul Raheem

Tajudeen Abdul-Raheem turns a timely and critical eye on Colonel Muamar Gaddafi and asks: Have we indulged the Spiritual guide and first citizen of the Libyan Arab People's Socialist Jamahiriya for too long?


The Brother Leader, Colonel Muamar Gaddafi, the Spiritual guide and first citizen of the Libyan Arab People's Socialist Jamahiriya, is in Uganda on a four-day official visit.

No sooner than he landed in Uganda did he start saying things that delighted his adulatory supporters and lullaby to his host, but make his critics cry wolf. In closing a ten-day meeting of African/Arab Youth he repeated his controversial thesis about revolutionaries not retiring, not needing term limits and democracy as an imposition from the west and surprise! Surprise!! The revolutionary leader He (in power for 39 years)declared his host, Museveni (in power only for 22 years but still counting!) and uncle Bob of Zimbabwe (in power for 28 years and soon getting himself 're-elected' whether Zimbabweans like it or not!), as the genuine articles among Africa's state house bound revolutionaries!

I do not subscribe to a lot of the Gaddafiphobia that we have been fed with over the years by reactionary African leaders and western ideological warriors who are now falling over themselves to do business with Gaddafi. I have met the Leader several times and support Libya on many Pan African and international issues. When we held the 7th PAC in Kampala his support was only second to that of the host country, Uganda. I am and will always consider myself a friend of the Jamahiriya.

However, as any person who has been in solidarity with Libya may admit privately, Brother Gaddafi is a very difficult friend to have. The political system he has developed in Libya is highly personalised and leader-centric with the inner core vulnerable to instability based on who is in and who is out based on his whims. While the Leader may enjoy popular support, there is no strong evidence that the popular masses have really internalised the ideals of the revolution, four decades after. That is why you have periodic conflicts between Libyans and other Africans often with racial overtones while the Leader is busy promoting stronger unity, solidarity and Pan Africanism.

Unfortunately, most of the supporters and the so called friends of the Jamahiriya do not tell the Leader the truth. This makes him vulnerable to flatterers, charlatans and opportunists both in interstate relations and in popular diplomacy. And he seems to enjoy and even crave the fake adulation. And they come wearing all kinds of ideological and religious masks. The more militant the better!

A consequence of this cheap populism is the tendency for the Brother leader to say anything, make unguarded declarations and sometimes espouse half-baked ideas that should embarrass any genuine comrade. But no one will tell the emperor that he is naked.

Sometimes when he really has original ideas and is willing to put his money where his mouth is, the penchant for showmanship becomes fertile ground for his enemies and critics to kill the ideas and even some of his so-called friends to play games with him.

One of such is his support for an accelerated integration of Africa which he has been championing since the Sirte extra ordinary Summit in September 1999. It was not just reactionary African leaders that led the onslaught in Accra. His 'revolutionary’ friends, including Presidents Museveni, Mbeki, and Prime Minister Meles were among those who torpedoed the Union Government proposal in favour of tortoise speed.

Yet Libya continues to spend disproportionate resources on lobbying leaders believing that once they say yes, we will achieve Unity by fiat. If Libya had spent a tiny proportion of what it spends on these leaders in building strategic partnership with democratic forces, peoples groups, parliaments, youth women and student groups, trade unionists and other progressive forces in raising popular consciousness and political mobilisation in many countries in Africa, there would have been greater success because the masses will be driving and pushing the leaders. Unfortunately because its system is also leader-driven from top downwards it cannot engage with genuine democratic forces. When Libya attempts popular diplomacy because they are not always good readers of country situations, they fall victim to conference mercenaries just like the jamboree that has just ended in Kampala.

In spite of his continuing rhetoric against imperialism Libya is in reality now aligned to the west in an understandable Post Lockerbie realism. It is no longer a pariah state. And Tripoli has again become a magnate for all manner of western companies and executive tourism for western leaders. That is why it is cooperating with the EU on xenophobic immigration policies to enhance fortress Europe by stopping desperate Africans from using Libya to cross into the EU. I am no advocate of Africans going to wash plates and do all kinds of dirty jobs in Europe. Our future lies on this continent with so much wealth but only appreciated and appropriated by others thanks to the collaboration of our leaders who act as dealers. However a genuine Pan Africanist state should not act as Gate Keepers for the West. Instead of deporting these Africans, why can't Libya show its seriousness about freedom of movement for Africans by giving them the right to settle and work in Libya? That will be leadership by example with which it can challenge other African states to set our peoples free and return Africa to Africans.

We have indulged the Brother leader for too long.

While Revolutionaries may not retire from the revolution, they should not imprison the revolution in the state house by insisting they have to remain there for life. The longer they hang on to power the more reactionary they become as revolutionary goals give way to personal and regime security.
What kind of revolution is the Brother leader talking about that depends on only one leader after so many decades?

Let history judge whether those who speak uncompromising truth to power are the real revolutionaries or those who flatter leaders as irreplaceable.

There is no doubt in my mind that even if the citizens cannot remove these permanent leaders, death will eventually retire them. The grave yards of history are full of many delusionary leaders who thought themselves immortal.

*Dr Tajudeen Abdul-Raheem writes this syndicated column in his private capacity as a Pan Africanist. His views are not attributable to that of any organization he works for or is affiliated with.

**Please send comments to editor@pambazuka.org or comment online at www.pambazuka.org

Liberian history and our uniqueness

2008-03-18

Mr. Bropleh is a wise man [A Cultural Paradigm for Liberia's Reconstruction, ]http://www.pambazuka.org/en/category/features/39759] There is a saying that a person does not know where they are going until they know from where they’ve come. Personal and national pride comes from truly knowing oneself and one's history. We lose our uniqueness, our flavor, when our culture is diluted to a point where it’s non-recognizable. How do you stand out when you've become like everyone esle? What do we teach our children about Liberian History when we don't know it ourselves? Here's to hoping that the current/future leadership and educators guide the young minds in the history, art, and culture that produce national pride and thereby, self pride.

Mugabe, land and the British

2008-03-18

Tola Ositelu

This article [Zimbabwe's political roller-coaster hits another deep dip, [url=http://www.pambazuka.org/en/category/features/46561]]http://www.pambazuka.org/en/category/features/46561][/url][/url] was a bit of a paradox, comprehensive in some ways but highly selective in others. The insinuation that the post-liberation Zimbabwean government whimsically turned down the opportunity to buy back land 'legitimately' purchased by White farmers conveniently glosses over certain factors i.e. the Lancaster agreement masterminded by the Thatcher government that effectively shafted the post-liberation Zimbabwean government and restricted how much money they could put forward to resettle those white farmers if they did choose to buy them out.

Funds that were pledged by the previous UK administration were withdrawn so that Zimbabwean authorities would have had to cough up a substantial amount of money in foreign currency to buy out the white settlements and continue with effective redistribution. The post-liberation government capitulated to this unsatisfactory agreement due to various pressures& were lumbered with its terms for a decade. The article was also too harsh on Mbeki and unrealistic about what he could actually achieve in such a short time as a result of the talks held last year. The man is being pragmatic. Instead of merely pandering to Mugabe as the article suggested, he knows there's no point excluding him from negotiations.

Like it or not, right or wrong, Mugabe is a key player. After all, the West's approach of sanctions etc, with all its double-standards& heavy-handedness has thus far proved mostly ineffective.

On the Tanzania gold mining report

2008-03-18

Chambi Chachag

Thank you for an insightful brief [http://www.pambazuka.org/en/category/comment/46555]. As far as our criticism of the report's apparent "lack of a gender analysis, and narratives (not just descriptions) of how mining operations are devastating lives in local communities" is concerned, I think we should consider the report's disclaimer below and consult its accompanying report: "There are several further concerns about the impact of the mines on local people - notable in the area of human rights, displacement to make way for the mines and environmental pollution.

These issues lie beyond the scope of this report, which focuses on tax and economic impacts, and are instead considered in an accompanying report, Not All That Glitters is Gold: How Tanzania's Mining Boom Has Impoverished Communities, Violated Rights and Degraded the Environment"(page 43). Where can we get hold of this accompanying report?

Fahamu