Jurisprudential and political economic dimensions of transitional justice in Africa

ABSTRACT

Contemporary Africa has experienced numerous violent political conflicts that have called for all manner of transitional justice mechanisms before normal state systems can function normally. From the 1994 genocide in Rwanda, then post-apartheid South Africa, to the 2007/2008 post-election violence in Kenya, the dominant discourse in jurisprudence and peace building has been the quest for the best modal of transitional justice. The catch phrase following massive violent reprisals that have threatened the state system and social fabric has been “Truth, Justice and Reconciliation”, with all kinds of conceptual modifications. Depending on who is speaking and what interests are at stake, the demand for transitional justice in Africa’s conflict-torn countries has gravitated around the following issues: truth, healing, reconciliation, restoration, compensation, and of course justice.

Despite all the talk about truth, justice and reconciliation, there is little consensus on the exact meaning of these terms that are casually deployed in the transitional justice discourse. Without entering into the conceptual battles in transitional justice, this article explores the not much investigated jurisprudential and political economic dimensions underlying transitional justice discourse. It is understandable that given the urgency of the clamor for justice by victims of vicious forms of violence that accompany some political transitions, and the need to rebuild communities, most analysts tend to keep away from abstract thinking on complex dynamics of transitional justice. And yet, after a country had undergone severe pogroms such as what Kenya went through following the contested elections of 2007, or Rwanda’s 1994 genocide, proposing quick fixes will in the long run hurt the body-politic. As a supplement to the hasty quest for truth, justice and reconciliation, I propose that transitional justice mechanisms should take advantage of the violent conflict that occasioned the need for transitional justice, and carry out wide-ranging constitutional reforms that restore rule of law, separation of powers, a democratic ethos and a just political economy.

INTRODUCTION

Several African countries have gone through different kinds of violent conflicts that necessitated a call for transitional justice. Countries that stand out in this regard include: Liberia, Sudan, South Africa, Uganda, DRC, Rwanda, Burundi, Kenya, and Zimbabwe. It is not easy to design a taxonomy of these violent conflicts. Causes of such violent conflicts include: electoral malpractice, lack of democracy, ethnic exclusion and marginalization, and religious differences.

With numerous crimes against humanity committed in such situations that include rape, ethnic cleansing, genocide and massive displacement, both the international community and the countries concerned are faced with the question of what kind of justice will bring about sanity amidst wanton violations of human rights. Given the magnitude of crimes committed by both state and non-state actors, the justice system is usually unable to cope with the justice challenges confronted. The debate immediately becomes who takes responsibility of bringing to justice those who committed crimes. The obvious challenge is to establish truth: who did what, when, where and to whom. After truth has been established, then follows the next challenge: what kind of justice will be sought, since there are many types of justice: social justice, criminal justice, retributive justice, restorative justice, etc. And finally, the question of reconciliation and healing. After society is broken, justice is not enough, communities need to be helped to live together once again even when terrible things have happened. This usually sounds like “preaching”—the role of pastors!

POLITICAL TRANSITIONS AS PARADIGM SHIFT

Major political transitions are like a typical paradigm shift, to borrow the concept of Thomas Kuhn, the famous philosopher of science. A paradigm shift happens when the existing theoretical framework cannot explain the phenomenon at hand. What such a failure happens consistently, a new theory emerges to explain the phenomenon at. In the case of apartheid South Africa, the racist theory could not contain the new demands for popular democracy. The apartheid regime had to give way to a new democratic dispensation, but this came after severe state repression and violence. The Kenyan post-election violence of 2007/2008 can be explained as a climax of the long quest for multiparty electoral democracy that started in the 1990s.

One wonders why a paradigm shift is accompanied by violence and dramatic events. The old paradigm has its admirers and fans who will not let go easily. A paradigm has its own beneficiaries who stand to loose when a new paradigm is ushered in. Behind any paradigm there are material benefits or a political economy. Those who have identified with the world-view that comes with a given paradigm get both emotional and material security from the system, and hence the willingness to fight tooth and nail to protect it.

It is precisely because major political transitions are a paradigm shift, that it is essential to accompany such transitions with major constitutional reforms and design a new political economy, in addition to the other measures such as truth telling, reconciliation and justice.

CONSTITUTIONAL REFORM AS AN ESSENTIAL ELEMENT IN THE NEW PARADIGM

President Yoweri Museveni of Uganda at his inauguration in 1986 is widely quoted for having said that he had ushered in a fundamental change and not mere change of guards. That is what a paradigm shift is—a fundamental change and note mere change of guards. And not surprisingly, the National Resistance Movement (NRM) that President Museveni was leader of, soon embarked on a process to write a new constitution that came into effect in 1995. But with all the crimes committed by the former regimes, Uganda did not set up a Truth and Reconciliation Commission. South Africa also came up with a new constitution to welcome the new democratic dispensation after the apartheid regime.

But the key question with regard to new constitutions is: what constitutes the core of a democratic constitution? Jurisprudence of the science of law has never solved this question since various societies define democracy differently. What makes the issue hard to resolve is that there is a dialectical tension between law and politics. Law seems to be a creation of politics and politics seem to be a creation of law. When discussion mechanisms for transitional justice this dialectical tension has to be kept in mind. The one who had engineered a political transition will also have an interest in what form of transitional justice mechanism will be put in place. This was all the more evident in Kenya’s post-election crisis of 2007/2008. The nature, mandate and role of the Kenya Truth, Justice and Reconciliation Commission had been ridden with contradictions. Its terms of reference have been highly contested precisely because of the political stakes involved. In South African the Truth and Reconciliation Commission spearheaded by Desmond Tutu was criticized for leaving out “justice”. Could it be that the political dividends in the “Rain Bow nation” took priority over the demands of justice?

So what is meant by “putting constitutional reform at the center of the new paradigm” ? We could take Kenya as an example of a paradigm shift in political and legal engineering. Following the 2007 contested election that turned violent, a process to write a new constitution commenced. Most observers of constitutional law agree that Kenya’s new constitution is an excellent document with the essential elements of a democratic constitution, even though some more reforms are needed to improve it. It brought in the concept of devolution of power from the center to counties. With this major reform, the infamous imperial presidency that had always marked Kenyan post-colonial politics was ended. Clearly, Kenyan is now governed by rule of law and a clear separation of powers, to the extent that the executive is heard complaining that the judiciary is has taken too much power. Here is the executive not used to having its power curtailed. The Kenyan legislature is clearly not a mere rubber stamp in used to be.

What Kenyans are now clamoring for are electoral reforms to remove the last barrier to genuine democracy. Kenyans know too well the high price they paid for flawed elections of 2007. Once the essentials of rule of law, separation of powers, a democratic electoral process (specifically, an independent electoral commission with representatives from the major parties), the democratic ethos can be build by civil society organizations and free media.

A JUST POLITICAL ECONOMY

Former Kenyan President Daniel Arap Moi used to amuse audiences by ridiculing western democracy with a rhetorical question: “Who eats democracy?” The Swahili version even sounded more dramatic: “Nani anakula demokrasia?” Moi’s line of thought is a simplified version on the debate that has baffled many: what should come first—democracy or development? To put this into the perspective of the issue of transitional justice, the question would then be: “what is justice, truth and reconciliation for, if they do not put food at the table of the victims of injustice?” Moi, who declared himself the Professor of politics, would ask: “who eats truth and reconciliation?” (Just putting words into his mouth).

A Key ingredient of the transitional justice is therefore a just political economy. Large scale politically motivated violence usually has an economic component. On close inspection one finds land-grabbing, large scale displacement, unequal distribution of resources, marginalization and unemployment. So any transitional justice mechanism has to take into consideration past economic injustices and make amends, otherwise the solutions will be cosmetic. There is always the challenge of how far in history should one go to redress economic injustices especially those related to land. Consider how Zimbabwe, South Africa and Namibia are struggling the land question where the majority of the population are landless in their homeland. In such cases, misguided and political motivated land-allocations will not also help solve the problem since they can in fact create a new type of marginalization based on patronage and neo-patrimonialism.

CONCLUSION

Without ruling out the transitional justice mechanisms such as truth, justice and reconciliation, as well as international criminal justice and restorative justice, I have suggested that it is important to widen the net and include issues of jurisprudence and political economy. Sustainable and lasting peace in Africa’s conflict states will be better guaranteed if transitional justice will include rule of law, separation of powers, electoral reforms, decentralization, democratic ethos nurtured by free media and a vibrant civil society. Finally, human beings do not live on constitutions alone, they also need food at the table that can be best guaranteed by a just political economy. If these elements are lacking in any polity, be rest assured that it is just a matter of time before violent episodes erupt. The recent events in Burkina Faso that ended Blaise Compaore’s long reign is a clear lesson too obvious to elaborate on. Long-serving African dictators beware the writing on the wall.

* Dr. Odomaro Mubangizi teaches philosophy and theology at the Institute of Philosophy and Theology in Addis Ababa, where he is also Dean of Philosophy Department. He is also Editor of Justice, Peace and Environment Bulletin. He wrote his doctoral dissertation on Linking Development and Peace: Towards a Normative Theory of International Relations for the Great Lakes Region of Africa.

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