To those who are tempted to turn human rights into a crusade, and thus become fundamentalists of the neoliberal era. I would like to put forward three propositions:
• Do not conflate criminal with political violence. Political violence may be criminal, but it is more. Political violence has a constituency • Political violence is seldom a stand alone act. It is most often part of a cycle of violence. When it comes to a cycle of violence, victims and perpetrators often change sides. There is no permanent victim and no permanent perpetrator. • Political violence is not just driven by perpetrators. More than anything else, it is driven by issues
The metaphor of political violence in post-colonial Africa is the genocide in Rwanda. In the first half of 1994, two radically different events unfolded in Africa: the first was the genocide in Rwanda, the second was the end of apartheid in South Africa. Ten years before – when Habyarimana’s program of ‘reconciliation’ was unfolding in Rwanda and SADF was unleashing a brutal occupation of townships – hardly anyone would have picked South Africa as the site of reconciliation and Rwanda as the location of genocide after just one decade. This single fact underlines the importance of political reform.
The South African transition was marked by three characteristics. To begin with, the Cold War had ended and external involvement in South Africa was at an all-time low. Second, the internal situation had reached an impasse. Both sides dropped their maximum goal – victory or revolution – so as to give the political process a chance. Each side de-demonized the other; yesterday’s enemies became today’s adversaries. The difference between an adversary and an enemy is this: you can talk to an adversary, but you have to eliminate an enemy. Finally, when the fighting ended, there was no judicial process. The way ahead was forged through a political process.
In the negotiations that followed, the liberation movements made three key concessions. The first set of concessions is what Joe Slovo, the Secretary-General of the Communist Party, called sunset clauses. They promised that the personnel of the old apartheid state – including its security forces, judiciary and civil service – would survive into the post-apartheid order. The state personnel were granted impunity. Only the political establishment had to subject itself to an inclusive electoral process.
Second, there was constitutional protection for white-owned property; this protection was translated into a local government law.
Third, there were no court trials of perpetrators; there was no judicial process. Instead, there was an amnesty for all. The much-lauded TRC really functioned as a mock quasi-judicial process: no matter the quality of the truth offered, it had no choice but to grant amnesty.
Apartheid did not end in the courts. Its end was negotiated at the conference table. It could not have been otherwise, for at least one reason.
A court trial shares a feature in common with a military contest: the winner takes all. In a court of law, you are either guilty or innocent; you cannot be both. Yet, in a civil war or a civil conflict, neither side is wholly innocent nor wholly guilty. Where violence is not a standalone event but an episode in a cycle of violence, each side has its victim narrative.
I want to suggest that South Africa offers us deeper lessons. To begin with, it calls on us to broaden and deepen our notion of justice.
In the era that followed independence, we thought of justice as mainly social justice. Today, we have narrowed down the understanding of justice to criminal justice, with lawyers as its primary custodians.
In South Africa, there was neither social justice nor criminal justice. Does that mean that there was no justice in South Africa? That justice was traded in for reconciliation and peace as the story commonly goes, and as the title of this debate suggests? I think not.
The negotiations that ended apartheid brought us political justice. That political justice was a reform of the political system – an end to juridical and political apartheid.
The conventional belief is that justice and reconciliation are opposites, alternatives. I want to suggest a different way of thinking through this.
I suggest we think of two types of reconciliation: one cosmetic, the other meaningful. Reconciliation alone will give you a ceasefire; only reconciliation combined with reform has the possibility of showing the road to a durable peace.
Cosmetic reconciliation is reconciliation without reform. An example of this is South Sudan. When the civil war in Sudan ended with the signing of CPA in 2005, there were two adversary armies in the South: the SPLA and the South Sudan Defence Forces (SSDF). The SSDF had fought with the Sudan army. It comprised mainly two groups: the old Anyanya and those who had broken away from the SPLA in 1992. Led by Lam Akol and Riek Machar, they had called for a measure of internal democracy within the SPLA.
Salva Kiir’s great achievement was said to be the reconciliation with SSDF. The absorption into the SPLA without reform turned out to be a cosmetic reconciliation which neither reformed the SPLA nor created a national army. In fact it turned the SPLA into a collection of tribal armies and postponed the internal crises.
Meaningful reconciliation is not the opposite of justice but the complement of justice. Meaningful reconciliation is only possible if reform identifies and addresses central issues in the conflict.
I want to argue that the issue for us today, the big issue, is political violence. This violence is testimony that we have failed to come to grips with the legacy of colonialism – and the challenge of decolonization
I shall take the example of Darfur and then relate it to the Rift Valley in Kenya. The violence in Darfur was multi-layered. Its background was at least three-fold.
First, the deep background, which is colonial. Key to British colonial strategy was to create tribal homelands. This strategy unfolded in neat steps. Briefly put, the claim was that every “tribe” had its original homeland, even if “tribes” tended to get mixed up in recent times. In every colony, British officials tried to draw homeland boundaries and tried to get tribes to return to these. We can explore how this sttategy politicized ethnicity and laid the ground for ethnic conflict in Question and Answer time if you are interested.
The twist in Darfur had to do with relations between peasants and nomads. Nomads have a soft notion of borders. They move across borders. So the British decided that nomads who move over large areas of land shall have no tribal homeland. These were the nomads of northern Darfur, the northern Rizeigat.
The intermediate background was that of an ecological crisis unfolding over four decades, from the 1940s to the 1980s. In that period, the Sahara moved Southward, approximately 100 kilometers. Nomads moved south in search of water.
The result was a clash between between peasants and nomads in the lush mountains of Jabal Merra. Peasants claimed this was their tribal homeland. It was a notion of rights that evoked the precolonial era but was crystallized in the colonial period.
Nomads said they were Sudanese and that it was their national right to access and live off the land. It was a post-colonial notion of right, where right was based on citizenship, not ethnic identity.
The cocktail in Darfur had other factors. This is not relevant to my argument today. But if anyone is interested, we can discuss it during question time.
How is this relevant to Kenya? Think of the violence in the Rift Valley. The deep background is colonial. The details are different.
But the questions are the same: who has right to land? This is not a question of right against wrong, but right against right. In contention are two sets of rights, each with a different history; one colonial, the other post-colonial; one tribal/ethnic, the other national. The perpetrators may be different, but the issues are not so different.
Can the courts solve this problem? The court is not a site to make rules; it is a site to apply rules. It is a site to settle questions of right and wrong, crime and punishment, victim and perpetrator. It is not a site to deliberate on two different histories, where each side is right on its own terms. The only way forward is to make a new rule to bridge the two. This is a matter for legislatures, for negotiations, for constitutional conventions – not for criminal courts.
Even if the court focuses on identifying perpetrators on both sides, it will do so at the expense of highlighting the issues around which the violence is mobilized
In Kenya, you have had two experiences over the past few decades. The first was the national movement for a constitutional reform. You forged a national coalition, a coalition across ethnic and ideological boundaries. My friend Willy Mutunga called it ‘Constitution-making from the Middle. This attempt at political reform was an exemplary effort, one that inspired the region. But you failed to build on it.
Instead, you turned to a contradictory initiative – don’t be vague, go to Hague. The Hague initiative undercut the gains made in the earlier period. Whatever national movement you had built around the constitutional reform process was split along ethnic lines, as each side mobilized in pursuit of revenge, rather than reform, and a different breed of lawyers took over.
I want to return to the South African example. Soon after the end of apartheid, its lessons were followed in Mozambique, where Renamo had unleashed the most brutal terror against children and women. It was a practice reminiscent of the kind of terror unleashed by LRA in Uganda.
That is where the similarity between Uganda and Mozambique ends. The two governments followed entirely different paths: a political reform in Mozambique, and war and punishment in Uganda.
You only need to look at the consequences to appreciate the difference: the war is over in Mozambique where the leadership of Renamo sits in Parliament. The war continues in Uganda where the leadership of LRA is still on the run.
Perhaps the most instructive is the case of Zimbabwe, where SADCC under Thabo Mbeki successfully resisted demands by the West that the region isolate Zimbabwe through sanctions. The result was to give time for an internal dialogue.
Contrast this with Kenya where the ‘international community’ – along with an influential internal constituency – distorted the internal political process by threatening to give priority to court trials. It is of secondary significance whether these trials were to be internal or international.
Mahmood Mamdani is Director of the Makerere Institute of Social Research, Kampala