5 December 2012

Africa: Program Report - Africa

interview

Photo: UN Photo/Evan Schneider
International Criminal Court (ICC) prosecutor Fatou Bensouda addresses the Security Council (file photo).

The latest ICTJ Program Report presents ICTJ's work in Africa. In a deeply insightful interview, Suliman Baldo, director of ICTJ's Africa Program and one of the world's leading experts on transitional justice in Africa, discusses transitional justice processes in Ivory Coast, Kenya, Democratic Republic of Congo, and Uganda. Since ICTJ began, it has worked in Africa - from South Africa to Liberia and Sierra Leone - and remains active in a number of transitional justice processes throughout the continent.

In this interview, Baldo provides detailed background to political dynamics of the region before examining issues such as the problems facing the Truth, Justice and Reconciliation commission in Kenya and possible implications of the failure to address the post-election violence from 2007 on the current political landscape. He charts the progress made by the investigative bodies and the truth commission set up by the government of Ivory Coast to look into the civil strife that culminated in post-election conflict in 2010. He also provides an analysis of regional dynamics driving the conflict in the DRC and continued presence of the notorious Lord's Resistance Army, whose crimes have deeply affected Uganda and surrounding countries.

What are the most pressing issues facing transitional justice in Africa, and where on the continent is ICTJ currently working?

When I look back at our program in Africa, I see that we have mostly invested in countries that had been through very tumultuous periods. Right now the Africa program is involved in Kenya, following political turmoil there in 2007 during the presidential elections that nearly brought the country to its knees and to the brink of social disintegration because of ethnic mobilization during the elections.

We are involved in the Democratic Republic of Congo, a country which hasn't known a central authority for decades, which is basically constantly attacked by its neighbors because of its natural wealth and the invitation that a weak national government presents for these powerful neighbors.

We are involved in Ivory Coast. Again, in Ivory Coast, ethnicity has been used as fodder for feeding political and military competition among leaders. And this nearly led to the destruction of the country.

And we are involved in Uganda, where the war in northern Uganda has displaced entire local communities in that part of the country, and where we do have now a form of return to peace.

What ICTJ seeks to do is to encourage accountability for mass atrocities during these periods of conflict and of political crisis. We also seek to encourage reconciliation and the acknowledgment of what victims have been subjected to.

We seek to encourage reconciliation among communities. Social peace is essential for sustaining political arrangements for peace, and without it there is no return to stability in any of these countries.

And the way we conduct this is through the promotion of transitional justice as a very effective tool for encouraging all of the above: realizing accountability, the recognition of victims, and encouraging reconciliation, which is based on the acknowledgement of the truth of what happened, the responsibility of those who were involved in the commission of crimes, and the accountability for such crimes.

Without such measures, it's very difficult to attain a sustainable peace in any of these countries.

Ivory Coast

After Ivory Coast's violent election crisis in 2010 that ousted former President Laurent Gbagbo, many have described accountability attempts in the Ivory Coast as "victor's justice." However, we have also seen establishment of transitional justice mechanisms, including an instrument to prosecute serious crimes and a truth commission. How would you describe current state this process, with all its complexities? Is there a reason to have hope?

The postelection violence in 2010 in Ivory Coast didn't come out of nowhere. There was a decade before that of simmering crisis, political competition between two major political groups, and in--as in many countries in the continent--political movements that draw their constituencies along ethnic lines.

There are genuine issues among communities, often relating to land ownership or the feeling by some groups that they are marginalized from political power at the regional or the national level. They are also marginalized in their share of the national wealth.

All of these ingredients finally resulted in the outbreak of civil war in 2000, which ultimately divided the country in two, along ethnic lines again, between the south and the north. The conflict came to a head in 2010 on the occasion of presidential elections, because both parties resorted to ethnic mobilization.

And, again, the killings that occurred targeted entire constituencies over their presumed political support for the other party based on no other consideration than their ethnic or religious affiliation.

However, out of that conflict arose awareness within the political class (and particularly in the new government of Ivory Coast, which was elected to office in these elections) that this was going to lead to the disintegration of the country.

Ivory Coast is well-endowed in natural resources, equipped with functioning institutions, and has the potential to return to its previous status of being the economic motor of the entire sub-region of West Africa.

All of this was put at risk by the civil war. And part of the recovery effort is the revival of the economy. But the elected government is very much aware that national reconciliation is essential to achieve peace and stability, and therefore economic prosperity in the country.

The government created several mechanisms immediately after the end of the conflict, including two investigative mechanisms for war crimes that occurred during the conflict. One was a human rights investigation at the Ministry of Human Rights.

The second was the Special Cell for Investigations at the Ministry of Justice, which is a judicial mechanism, in addition to the creation of a truth commission.

It created also a ministry for victims, war veterans, and women affected by the conflict. So there is a level of political awareness which is very encouraging there, because they wanted to get to the bottom of the root causes the led to the conflict.

The encouraging signal is that there was massive turnout for the voting during the elections of 2010, which tells me that the population is really tired of confrontation and the militarization of political competition among the elites. They want a democratic, peaceful process for alternating political parties in power and not a military contest at each elections.

The elections were well-organized and acknowledged as free and fair and transparent by all observers, and were certified as correct by the United Nations. So this is a strong message. The population itself is not party to this extreme polarization.

The mechanisms that have been put in place are giving mixed signals. For example, the National Commission of Investigation in the Ministry of Human Rights has published its report on time. It was in the form of a summary of their recommendations and findings.

The summary showed that they conducted extensive investigations, professionally equipped, in areas most affected by the conflict. And they made recommendations that were not biased to one party or the other.

However, the detailed report of that commission has not been made public. And until it is made public, we cannot judge whether they were really even-handed in investigating all parties to the conflict, including the government of President Alassane Ouattara.

The Ministry of Justice investigation is ongoing. They have a two-year mandate, which they are halfway through. They have teams of judicial police, magistrates, and judges involved in conducting these investigations. They have interviewed thousands of victims and taken, by all accounts, some 12,000 depositions.

ICTJ has engaged with these mechanisms. We provided them with training on investigations. In the process, we realized that, although these depositions were taken, there was no investigative plan to relate the depositions to one another. And there was therefore no clear strategy on how to conduct prosecutions. Because it's only when you conduct a comprehensive approach to investigation that you are able to identify patterns of serious crimes and possible elements of chain of command indicating responsibility for such crimes.

The commission is very open to the kind of technical assistance ICTJ is providing to them. We have already conducted trainings for the investigators and another set of training for the magistrates and the judges, precisely to assist in refining their investigative plans and their prosecutorial strategies, which is a technical weakness of the process.

We had also trained the commissioners and the investigators of the Ministry of Human Rights late in the process. The training that ICTJ provided for them on report writing and on standards of independent human rights investigative commissions bore a lot of fruit. We could see the influence of that technical advice in their report. Responsibility for that process remains squarely with the commission. We tried to make its work more sound, technically, and more credible, legally and morally. And we are engaged, critically, from that perspective.

We have discussed the prosecutorial body that was established and described the work that ICTJ was doing to help them. How do you see things developing with the investigations and ultimately the prosecutions in the near future? And what do you see as our role as the process goes forward?

At this time in the process, it's very difficult to prejudge the possible outcome of the domestic prosecutions. The Ministry of Justice has started indicting some top officials of the former regime for economic crimes and war crimes. It's a major concern for us and for observers that, so far, most of the high visibility investigations and indictments have been on the side of the former regime. None of those who supported today's president have come under serious investigation or questioning about their conduct.

Several of the commanders of the Forces Nouvelles, fighters from northern Cote d'Ivoire who opted to fight to bring President Ouattara against the challenge from former President Gbagbo, are known perpetrators of human rights violations from the decade-long period of conflict that preceded the crisis in 2010.

It's very worrying for us that several of these commanders, known as zonal commanders, are in positions of responsibility in the security apparatus of the new government. Until that question is addressed, there will be a real challenge to the credibility of the government's declared intention of prosecuting those responsible for crimes on both sides.

The other issue is that the International Criminal Court is involved in Cote d'Ivoire. Although it hasn't ratified the Rome Statute, Cote d'Ivoire has acknowledged the jurisdiction of the ICC in the crisis back in 2003 and again in 2010. President Ouattara has invited them to launch investigations of serious crimes committed during the postelection violence.

The ICC has indicted former President Gbagbo, and, more recently, they made public a sealed indictment for Simone Gbagbo, the first lady of the former regime. Again, domestic investigations don't appear to be looking into crimes committed or attributed to supporters of President Ouattara.

There is a lot of lip service toward reconciliation. However, the the Commission for Dialogue, Truth, and Reconciliation has had a very slow take-off. They are beyond their midway mark in their mandate. However, they haven't really started any kind of hearings or investigations to this day.

The approach of the commission to date has been very bureaucratic and has basically pursued symbolic gestures, like holding joint prayers or recruiting famous musicians to tour areas affected by the conflict, singing for peace and reconciliation.

But in terms of actual investigations and identification of serious crimes that occurred and giving victims a hearing about what they were subjected to during the conflict, the commission has yet to prove itself.

We are engaged with the Truth, Dialogue, and Reconciliation Commission. We are advising them that there are minimum standards for them to be credible in the conduct of their mandate. And without meeting them, they will not make much of a contribution to reconciliation.

We had tense relations with the commission initially, because they were defensive and not willing to acknowledge some of the shortcomings of their own plans. But after a lot of interaction with them, this situation is shifting. They are communicating information about what they intend to do and asking for advice about how to do it better. And they are asking for support by exposure to comparative experiences and by opportunities for technical assistance.

For instance, the commissioner for gender issues in the truth commission took part in ICTJ's transitional justice course in Barcelona, which focused on truth commissions. And that was a clear indication that there is no lack of will from the commissioners to really try and learn more and do their job better.

We are encouraged by these signals, but the challenges remain considerable with the truth commission.

Kenya

After some 1,100 people died after the 2007 elections in Kenya, the Truth, Justice, and Reconciliation Commission (TJRC) was established. Although its existence was marred by various problems, there was hope that the commission's report would be released in August. However the report never materialized, and there is now another request for extension which will see the report published only after the upcoming elections. Many international observers, civil society and victims groups see this as a clear sign of commission's politicization. What do you think are the main issues around the work of the truth commission? What is at the heart of this paralysis? And how can we help, if at all?

The Truth, Justice, and Reconciliation Commission in Kenya, or TJRC, had an initial mandate of two years, which ended in late 2011. It had problems right from the onset because of the appointment of a controversial national figure as the chairman of that commission, former Ambassador Bethuel Kiplagat.

The commissioners who were appointed to the TJRC, were of the opinion--and credibly so--that Mr. Kiplagat should step down because he was involved when he was a senior government minister in acts and initiatives that would be a conflict of interest with the investigations of the commission. Basically, he could be subject to the commission's investigation because of his role while serving in the government.

Ambassador Kiplagat for a long period resisted that, and this conflict has paralyzed and delayed the work of the TJRC. It involved very raucous episodes, and in the end he decided to step aside--not to step down--to allow the commission's work to proceed. So they had a late start, and from the beginning the commission was on the wrong foot.

The other issue was the major rush to try and make up for lost time. They recruited investigators and statement-takers who were not necessarily well-trained. A lot of interviews, hearings, depositions were taken and recorded but not necessarily in a way that could be useful for a proper analysis and tabulation of results to draw solid, evidence-based conclusions and recommendations. So that technical difficulty also led to a lot of delays.

The third factor in the delays is the fact that the initial conflict has led to a reluctance to engage with the commission in civil society circles and among victims. That state of mind is still there.

In Kenya, civil society is very influential on transitional justice issues. They are the driving force pushing the political class to realize institutional reforms and transitional justice processes that address the root causes of conflict and their own responsibility in triggering it.

Without that force, the political class would have quietly created bodies that were ineffective or just for show. But they are kept under constant watch and constant check by civil society organizations.

Therefore, for these groups not to engage with the commission was very problematic. Then, when the engagement finally happened, the time was very narrow. ICTJ sided with the Kenya national transitional justice coalition of civil society organizations.

Initially, we were guarded and did not engage with the TJRC. When we finally did engage, we helped with the initial induction of the commissioners. At a later phase, when they began the process of correcting the technical failings of the initial rush, we assisted them in report writing.

The commission has a statuary entitlement to a six-month extension, which they obtained. They were then supposed to turn in their report in August 2012. However, as August approached, they applied for another extension, saying that the report was not ready.

This led to suspicions that the failure to prepare the report on time, within the statutory extension, was politically driven to avoid putting out a report ahead of an election campaign.

There is a very heated election contest now ongoing in Kenya. Elections were supposed to take place this year, but they have been delayed to March 2013. The concern is that the delay in reporting or publishing the findings of the truth commission was basically to avoid embarrassing key political actors who might be identified as being involved or having a role in the ethnic killings through their command role in the political parties and so on.

So the situation is now uncertain. The commission has applied for a nine-month extension; therefore the report will definitely come out after the elections.

We are very critical of this, but we are not entirely withholding engagement. We are trying to see what the commission has to say about the actual status of the report: what chapters are nearly ready, which ones that they still need to do, and what tasks they believe they should undertake between now and the publication of their report.

If they provide that kind of information on where things stand in actual terms, and therefore give an objective ground for why an extension is needed, we may conduct our own assessment and find that we are willing to re-engage and provide some technical support.

The status of the extension is still undecided. The minister of justice is very supportive of the extension. But the parliamentarians are very hostile, and many of them are unhappy because the previous extension didn't lead to at least a preliminary report or early findings. For them, this is a politicization of the process.

We are at a critical juncture here where the record of the TJRC might be in the process of being derailed. We are waiting to see. And we hope that there will be a positive outcome.

Uganda

In Uganda, the issues seem entirely distinct. The International Criminal Court (ICC) still has open cases against the leadership of the Lord's Resistance Army (LRA), led by Joseph Kony. A substantive effort was directed in Uganda by ICTJ and others at the establishment of capacity for national prosecutions. However, the process is slow and there have been objections from civil society and international observers that the government's own actions were not subject to investigation. Where is the process in Uganda at the moment? And what is it that we are working on, specifically?

Joseph Kony, of the Lord's Resistance Army, has a remarkable capacity for metamorphosis. The LRA is no longer present in Uganda and is now a sub-regional problem. Uganda is policing its borders carefully to prevent them from returning.

There is therefore relative peace in northern Uganda, not because the LRA has been defeated--on the contrary, it's becoming more of a major problem for the sub-region--but because they are not there to terrorize the population.

There has been a spontaneous return of the nearly a million of internally displaced to the original villages and a return to peace in the north.

What's happening in Uganda is that the government has taken a unilateral commitment to implement the provisions on accountability and reconciliation that were reached during the Juba peace process. It has made commitments to establish mechanisms for accountability for crimes committed during the war by both parties, a mechanism for truth and reconciliation, traditional justice mechanisms to reconcile returning fighters of the LRA with their communities, and a mechanism for reparations.

The government has, however, insisted that its own soldiers accused of misconduct must go through the normal channel of the military justice. Therefore, the special justice and law and order sector, which is overseeing the accountability mechanism, and the unit that was created for International Crimes Division, under the High Court of Uganda, are mandated to look only into crimes attributed to Lord's Resistance Army commanders.

The International Crimes Division is still being established. ICTJ has provided technical assistance to judges, registrars, and prosecutors of this special division to help them with regard to the realizing of their mandate when they eventually have cases in front of them.

We are also assisting the justice and law and order sector in defining a national framework for transitional justice in Uganda. And they have asked our advice with regard to reparations; for example, what should be happening in relation to truth mechanisms.

These other transitional justice processes haven't been given sufficient attention to date. But now, within the process for defining this national policy framework, there is interest in doing that.

We work closely with other civil society organizations and with victims groups to ensure their representation in the definition of these policies and to ensure that victims are heard when transitional justice processes are defined.

There is a lack of awareness in these traditional societies of women's rights, almost as a form of denial of all the massive crimes committed against women and girls in the context of the conflict. Sexual and gender-based violence was rampant against boys and girls in northern Uganda.

We are there to make sure these mechanisms are sensitive to all these groups and their rights to allow recognition and accountability for what happened to them, and to enable reparative measures to address their rehabilitation and their needs to restart their lives.

Democratic Republic of Congo

In Ivory Coast, Kenya, and Uganda, these processes, although facing many problems, are unfolding. However, when it comes to the Democratic Republic of Congo, somehow even with the mention of the name of that country some sort of dark cloud overwhelms the discourse. As we speak, we have a situation in Goma illustrating very clearly the continuous involvement of very powerful neighbors you have described earlier. We have abominable dimensions of violence, especially against women.What is the role for transitional justice in a country which can hardly be said to be "transitioning?"

Well, in the Democratic Republic of Congo, central authority has imploded for decades. It hasn't known a credible, legitimate government from Mobutu's days. And Mobutu is the president who has helped create the concept of kleptocracy, ruling by corruption. So corruption is a major issue. Congo is plagued by the failure and bankruptcy of the political class, as well as the absence of a national strategy, a national vision, or a national leadership.

I distinguish between this and the vitality and resilience of the Congolese population. This is a huge country, constituted of many different communities. It's not known for the convulsions of mass violence that have shaken countries in the neighborhood repeatedly since the 1970s, continuing to this day.

If you look at the history of Congo, there haven't been interethnic convulsions on a massive scale like those that occurred in Burundi or in neighboring states.

The hope for the Congo is its population, which is naturally very resilient and very peaceful.

In the absence of this authority in the country, you have alternate forces that came up. Without a state functioning, there are services at the community development level, at the health and education levels, and even in infrastructure that are functioning because of local community groups, civil society organization, and church groups. The church is very powerful in Congo.

In cities like Goma or Bukavu, there are very credible higher education institutions that are entirely supported by local communities and the churches. They have networks of communication with academia throughout the world. It's not the state doing this. It's the local community.

These alternate forces have been pushing for the rights of the population against all holders of power--their own governments, rebel groups, local community militias, foreign armies occupying their territory. When you look at the level of the documentation of human rights violations that occurred in Congo, it is just phenomenal. These local organization are doing it constantly, and as is the church in its declarations, statements, and so on.

It is these groups that are pushing for the agendas of accountability, justice, and reconciliation in their own country. And they are doing so against all odds, because they don't carry Kalashnikovs. Everyone else carries Kalashnikovs, but not them. And therefore, everyone tends to push them aside when it comes to putting in place transitional justice mechanisms.

So we end up with a situation in Congo where there are no official mechanisms of transitional justice. There is no functioning truth commission or reparation program.

But there was an initiative to establish of a hybrid national/international chamber to prosecute serious crimes.

Exactly. What we do is to work with those within existing institutions, such as Parliament, the government also, who want to push for institutional reforms in the country. And that is how we became engaged with the mixed chambers and the domestication of the Rome Statute in the Congo. These were projects pursued last year, 2011, by the then-minister of justice. We went to Parliament, where there was support for them, but both government and Parliament needed technical assistance.

The ICTJ program in the Congo is one of, I would say, probably only two international presences in technical committees in the Ministry of Justice, the National Assembly, and the Senate that look into draft legislation to assess and comment on it before pushing it to the legislators.

We are members of the Political, Administrative, and Judicial Commission at the Justice Ministry and the corresponding body in Parliament, providing technical advice, commenting on the language of the different articles, suggesting approaches to reconciling the Rome Statute bill, and the mixed chambers bill. Because once this framework is adopted, there will be a better opportunity for impunity to be really addressed from within the institutions of the state.

There are actors--policymakers and stakeholders--who are pushing for such reforms, and part of our program in Congo is enabling them through technical assistance to do a better job. And we are very well-positioned because of that.

At the same time, we work with civil society organizations that are very progressive and very much aware and able to assist in their advocacy with these same influential stakeholders in Parliament and the government who want to bring change from within.

We work with women's groups about issues of gender justice, and to try and confront the very stark reality of gender and sexual-based violence in the country, which is a daily reality, and not just a legacy of the past. We also work to increase their awareness in ways that could make them press for changes from within the existing institutions, for example, to introduce better discipline of the military and accountability for attacks on women and girls.

We work with groups that are community-based organizations, and much of our program is at a community level. We're working in Kalamy, in North Katanga, in Kissengany, the second-largest city in central Congo, and in Ituri, which was the epicenter of a very deadly interethnic conflict in the early 2000s. And there are community initiatives for memorialization and for truth-seeking and reconciliation at a community level that are led by community organizations, victims, civil society, and local churches. We interact with all of these groups.

We do a lot of awareness-raising for all these actors so they are better equipped to do what they are trying to do on their own. This is not the end of the world. People can take things into their own hands and initiate reconciliation or truth-seeking on their own.

Congo is challenging. But the opportunities are huge, and we are engaged.

Making the Case for Transitional Justice in Africa

If you were to make a case for transitional justice in Africa, how would you do it? What do you think are the key ingredients for the success of these mechanisms and the fruits that they bring with them?

This is a very interesting question, because transitional justice has become part of the toolbox for realizing peace agreements to end conflict. And there is a danger there. Because when mediators--international community mediators, the United Nations, regional powers, and regional organizations such as the African Union--step into a country to end a deadly conflict, the primary concern is to end the killings. But they want to do it in a way that puts the country on track for stability and for reconstruction.

However, ending the conflict means ending up with those involved in it--the men at arms--negotiating between themselves formulas for power-sharing and dividing the spoils of the situation. Rarely will these political-military actors be interested in holding themselves accountable for crimes committed during the conflict.

The insistence on creating transitional justice mechanisms in post-conflict periods is driven by this commitment of the international community to the values of international law, to the standards of human rights, and to the attempt to make reconciliation an ingredient in permanent peace in the country.

Transitional justice is not a genuine concern for the ruling political elites, particularly those coming from conflict or even from political crisis, as in Kenya.

What makes the difference in places where transitional justice is meaningful? In places like Sierra Leone and Liberia, the conflicts have created elites that were so weak that they couldn't really dominate the outcome of the processes. When they emerged from conflict, those countries emerged from total destruction. And therefore there was an opportunity to really have it right with regard to the transitional justice ingredients of this peacemaking and post-conflict reconstruction.

In the Democratic Republic of Congo, the strengths of the process came not from the political elites, but from the strategic wealth of the country. All the international actors were interested in the contracts that would follow the peace agreements, and therefore they didn't hold the parties to the conflict rigorously to account with regard to the credibility of the mechanisms.

We had a situation whereby you have the peace agreement in the South Africa resort Sun City, stipulating the creation of a partnership during the transitional period, and then parking all the issues of justice, human rights, free expression, and elections, for les forces vives de la société--the lively forces of society, to civil servants and to churches.

They created a national commission for truth-seeking, a national commission for elections, a national commission for free expression, and an anti-corruption commission. But all these were all simply handed over to civil society groups. What happened then was the transitional government simply insisted on appointing commissioners in these bodies to neutralize them and starve them of any funding.

So we ended up with a nominal truth commission and anti-corruption commission that were totally useless, and they didn't do anything. These citizenship commissions that were created were totally impotent--with the exception of one, which is the National Elections Commission.

The National Elections Commission had massive church support--they really invested in it--and international community support because they were very keen on the 2006 elections. It had hundreds of millions of dollar in funding. So the commission was protected, both from the interference of the transitional government and from the funding squeeze. And it did an excellent job because of this guarantee of independence.

When you look at Kenya, the elites that emerged from the 2007 and 2008 political crisis were not very keen on truth commissions or accountability either. It was the watch dog role of civil society that kept them on track and pushed for real, credible, legitimate, and genuine reforms. The media also played a key role. Kofi Annan's involvement was key, because he stayed focus and assessed the performance of the government commissions through evidence-based research.

And so the Kenyan ruling elites were held on a very short leash by all these other actors. And in fact, because of a very progressive and enlightened civil society, Kenya has made remarkable institutional reforms that will make it very difficult for the political class to behave irresponsibly as before.

There is no one situation or lesson, but one I can draw is that you need watch dogs, and influential ones, to make sure that political elites are kept to their word in these agreements.

Otherwise you risk a fiasco like the citizenship commissions of the Congo, which were done just for the sake of it and never allowed to function. Or you risk a situation where nothing happens--a military victory by just one party, and they just continue with what they want to do. And so on.

It's our role as ICTJ to be critical of all stakeholders. If we see any compromises from the international community, we also need to speak out and say, "This is not right. This shouldn't be happening."

One thing is clear: ICTJ remains committed to Africa. We will stay engaged.

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