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Courts and Democracy in Postconflict Transitions: A Social Scientist’s Perspective on the African Case

Published online by Cambridge University Press:  30 March 2017

Jennifer Widner
Jennifer Widner*
Affiliation:
University of Michigan
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Extract

A “second liberation” swept the African continent beginning in 1989. In many places, multiparty elections and a measured optimism gained ground. Yet during the 1990s, the spirit of moderation and tolerance typical of the early independence movements began to fray. The recent armed conflicts of Central and West Africa and the columns of refugees crossing borders have served as a blunt reminder of the fragility of many of the continent’s democratic experiments.

In this new era, law plays a central, visible, yet delicate role in many peace settlements and democratic transitions, from South Africa to Ghana. Africa’s courts have been challenged to provide the kinds of basic dispute resolution that lie at the core of what it means to be a “government.” At the same time, Africanjudges are mindful of Learned Hand’s caution in The Spirit of Liberty, taped above a secretary’s desk in Uganda. “Liberty lies in the hearts of men and women,” Hand wrote. “[W]hen it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.” The success of a postconflict transition will depend, in part, on the role of courts in sustaining a spirit of liberty and tolerance in their societies.

Type
Symposium: State Reconstruction After Civil Conflict
Information
American Journal of International Law , Volume 95 , Issue 1 , January 2001 , pp. 64 - 75
Copyright
Copyright © American Society of International Law 2001

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References

1 The quotation is from Judge Hand’s speech on May 21, 1944, at a ceremony in Central Park, New York City, to swear in 150,000 naturalized citizens. Learned Hand, The spirit of Liberty 190 (Irving Dilliard ed., 3d ed. 1960).

2 See Widner, Jennifer, Public Attitudes Surveys, Botswana and Uganda (1995-1996)Google Scholar (on file with author).

3 See id.

4 John-Jean, Barya & Oloka-Onyango, Joe, Popular Justice and Resistance Committee Courts in Uganda, passim (Kampala, Uganda, 1994)Google Scholar.

5 For one account, see Ganzglass, Martin R., The Restoration of the Somali Justice System, in Learning from Somalia: The Lessons of Armed Humanitarian Intervention 20 (Clarke, Walter & Herbst, Jeffrey eds., 1997)Google Scholar.

6 The use of truth and reconciliation commissions will not always be an acceptable alternative to local parties.

7 See Organic Law on the Organization of Prosecutions for Offences Constituting the Crime of Genocide or Crimes Against Humanity Committed Since 1 October 1990, Law No. 8/96, Rwanda off. Gaz., Aug., 30, 1996.

8 Sec Neher, Leonardo, Maria Linares, Ana, Rose, Laurel, & Mathieu, Paul, Rwanda Rule of Law Design: Four Week Interim Report, Report prepared for USAID by ARD/MSI (1995)Google Scholar.

9 Van Lierop, Robert F., Rwanda Evaluation: Report and Recommendations, 31 Int’l Law. 887, pt. VIII, Recommendations (1997)Google Scholar.

10 On the problem of obtaining defense counsel for defendants in national court trials, see Drumbl, Mark, Rule of Law A mid Lawlessness: Counseling the Accused in Rwanda’s Domestic Genocide Trials, 29 Colum. Hum. Rts. L. Rev. 545 (1998)Google Scholar; Lawyers Committee Forhuman Rights, Prosecuting Genocide in Rwanda: The ICTR and National Trials (July 1997), obtainable from <http://www.lchr.org/pubs/rwanda.htm>.

11 See Moms, Madeline H., The Trials of Concurrent Jurisdiction: The Case of Rwanda, 7 Duke J. Int’l L. 349 (1997)Google Scholar; see also Alvarez, José, Crimes of State/Crimes of Hate: Lessons from Rwanda, 24 Yale J. Int’l L. 365 (1999)Google Scholar.

12 USAID, Assessment of Means of Expediting the Genocide Caseload in Rwanda (ms., Feb. 1998).

13 See Des Forges, Alison, “Leave None to Tell The Story” (Human Rights Watch 1999)Google Scholar, Prunier, Gérard, The Rwanda Crisis: History of a Genocide (1995)Google Scholar, and African Rights, Rwanda: Death, Despair and Defiance (rev. ed. Aug. 1995), on the bureaucratic organization of the Rwanda genocide.

14 Statute of the International Criminal Tribunal for the Prosecution of Persons Responsible for Genocide and Other Serious Violations of International Humanitarian Law Committed in the Territory of Rwanda and Rwandan Citizens Responsible for Genocide and Other Such Violations Committed in the Territory of Neighbouring States, Between 1 January 1994 and 31 December 1994, SC Res. 955, annex, UN SCOR, 49th Sess., Res. & Dec, at 15, UN Doc. S/INF/50 (1994), reprinted in 33 ILM 1602 (1994), obtainable from <http://www.ictr.org>.

15 See, e.g., Prosecutor v. Akayesu, Judgment, No. ICTR-96-4-T (Sept. 2, 1998), reprinted in 37 ILM 1399 (1998); Prosecutor v. Kambanda, Judgment and Sentence, No. ICTR-97-23-S (Sept. 4, 1998), reprinted in 37 ILM 1411 (1998). ICTR decisions are available online at <http://www.ictr.org>.

16 See Office of Internal Oversight Services, Report on the Audit and Investigation of the International Criminal Tribunal for Rwanda, UN Doc. A/51/789, annex (Feb. 6,1997), <http://www.un.org/Depts/oios/reports/a51789/ictrtit.htm>; Office of Internal Oversight Services, Report on the Follow-up to the 1997 Audit and Investigation of the International Criminal Tribunal for Rwanda, UN Doc. A/52/784, annex (Feb. 6,1998), <http://www.un.org/Depts/oios/reports/a52_784.htm>; see also Report of the Expert Group to Conduct a Review of the Effective Operation and Functioning of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda, in Identical Letters Dated 17 November 1999 from the Secretary-General Addressed to the President of the General Assembly and to the Chairman of the Advisory Committee on Administrative and Budgetary Questions, UN Doc. A/54/634 (1999).

17 Certification of the Constitution of the Republic of South Africa, No. CCT 23/96 (CC Sept. 6,1996) (finding some provisions of the proposed constitution unacceptable) <http://www.polity.org.za/govdocs/constitution/cert.html>; Certification of the Amended Text of the Constitution of the Republic of South Africa, No. 37/96 (CC Dec. 4,1996) (deciding that the amended text did comply with the Constitutional Principles) <http://www.concourt.gov.za/judgments/1996/const2.html>.

18 Ngegwe s/o Sangija & Three Others v. Republic, Crim. App. No. 72 (Mwanza High Ct, Tanz. 1987); Maingu v. Mtongori & Nine Others, Civ. No. 16 (Mwanza High Ct., Tanz. 1988).

19 See Mesaki, Simeon, Witch-Killing in Sukurnaland, in, Witchcraft in Contemporary Tanzania 47, 52 (Abrahams, Ray ed., 1994)Google Scholar.

20 See, e.g., Nsereko, Daniel D. N., Witchcraft as a Criminal Defence, from Uganda to Canada and Back, 24 Manitoba L.J. 38 (1996)Google Scholar; Fisiy, Cyprian F. & Geschiere, Peter, Judges and Witches, or How Is the State to Deal with Witchcraft? 118 Cahiers d’Etudes Africaines 135 (1990)CrossRefGoogle Scholar.

21 Interview with Judge John Mroso, High Court of Tanzania, Arusha (Aug. 1995). Thus, gradually and often informally, African judiciaries are developing community programs similar to those of American courts, helping inhabitants settle neighborhood disputes outside the context of lawsuits.

22 See, e.g., Barnes, Samuel H., The Contribution of Democracy to Rebuilding Postconflict Societies, 95 AJIL 86 (2001)CrossRefGoogle Scholar.

23 See, e.g., Boutros Boutros-Ghali, Supplement to Reports on Democratization (Agenda for Democratization), UN Doc. A/51/761, annex (1996); OAV Summit Closes with Calls for Democracy, Dignity, Agence France-Presse, July 14,1999 (OAU Secretary-General Salim A. Salim stating that future coup leaders “shouldn’t expect to be invited” to the next summit), available in LEXIS, News Group File, Most Recent Two Years; African Charter on Human and Peoples’ Rights, June 27,1981,21 ILM 58 (1982) (adopted by 18th Assembly of Heads of State and Government of the Organization of African Unity), <http://wwwl.umn.edu/humanrts/instree/zlafchar.htm> and <http://www.unhcr.ch/refworld/refworld/legal/instrume/women/afr_e.htm>.

24 Retrofit (Pvt.) Ltd. v. Minister of Information, Posts, and Telecommunications, 1963 (3) BCLR 394 (ZS), 1995 SACLR LEXIS *307 (Dec. 18, 1995).

25 For fledgling institutions, there are times when the better part of valor is to limit the scope of activity. The willingness of citizens to place faith in the courts to resolve disputes impartially is partly a function of performance. When the risks of ineffectiveness run high, finding alternative ways of hearing disputes may be better than overburdening a system that has to play a very important role over the long term and that must gradually gain people’s trust.

26 In Tanzania, a World Bank survey found that 6-8% of residents had used the magistrates courts in the previous year. Contemporaneous surveys in Uganda and Botswana asked whether a member of the household had appeared as a party to a case in the magistrates courts during the previous five years. Overall, 14% had done so, and 45% had in areas with frequent land disputes. See United Republic of Tanzania, Presidential Commission of Inquiry Against Corruption, Service Delivery Survey: Corruption in the Police, Judiciary, Revenue and Lands Service 11 (World Bank/CIET International, Dar es Salaam, July 1996); see also Widner, supra note 2.

27 See Certification of the Constitution of the Republic of South Africa, supra note 17; Certification of the Amended Text of the Constitution of the Republic of South Africa, supra note 17.

28 Interview with Justice Francis L. Nyalali, Dar es Salaam, Tanzania (May 29, 1996).

29 See Landes, William M. & Posner, Richard A., The Independent Judiciary in an Interest-Group Perspective, 18 J.L. & Econ. 875 (1975)CrossRefGoogle Scholar.

30 Francis L. Nyalali, Keynote speech delivered at a seminar organized by the Commonwealth Judicial Education Institute for judges in East and Central Africa, Sheraton Hotel, Kampala, Uganda (Feb. 26,1996) (on file with author).