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EDITORIAL BY PAUL E. NANTULYA

his issue of Conflict Trends offers some background against which the latest constitutional insights into contemporary constitutional and electoral changes in her country have taken developments in Africa, both from a country place. She looks at the specific amendments, the Tspecific, to regional and more thematic issues. work of the Interim Political Authority and briefly The pieces have been contributed by a combina- touches on the new electoral system, which com- tion of constitutional experts, conflict management bines a first past the post system with a mixed specialists and political analysts. This mix, member proportional representation system, reflects ACCORD’s own thinking around constitu- widely seen as a compromise to offset the parlia- tional issues in Africa, which generally supports mentary imbalances created by the former system the view that constitutions have always been nego- in the 1998 elections. The country is expected to tiated, amended reviewed, or overthrown against a hold its next elections in April 2002. specific political context, and with concrete politi- Following this brief constitutional update on cal objectives in mind. They are also inevitably Lesotho, Prof. Severine Rugumamu, from the influenced by the prevailing conflict dynamics on Conflict Management Centre at the Organisation of the ground, which in turn cannot be separated African Unity, shares some insights into state sover- from the wider socio-economic and political milieu eignty and intervention in Africa. This particular within which the different political, social and theme, touching as it does on specific and broader other interest groups and formations manoeuvre questions of local and global governance, is now fil- for power, influence and reform. Focusing on tering into the domain of constitutional discourse. Lesotho for instance, Pontso Mamatlere, an expert How do the various patterns of intervention impact from the Independent Electoral Commission, who on the domestic constitution making project and herself has also been intricately involved in the how can constitutions respond to the challenges of process of shaping the foundations of that institutionalising new norms of intervention, and of Country’s new electoral system offers a practical global co-operation? What about the question of

2 election monitoring and its connection to the norms He expresses concern over the problem of a lack of of sovereignty and non- interference? Are election a ceasefire, internal factionalism within the key observers playing a passive role, or are they gradually political parties, and dangers associated with some taking on more mediatory functions? Can they serve a of the more extremist groups, which continue to broader function which transcends the mere observ- resist the transition. Sagaren argues that a transition ing of the electoral process, and if so, what kinds of could have been easier in the context of a ceasefire, questions does it raise regarding national sover- and argues that the ‘political wings’ of the armed eignty? Responding as it does to most of these ques- groups do not have enough influence to persuade tions, the piece does give a good sense of the local the armed elements to lay their weapons. He also and global imperatives for shaping what Rugumamu sees the South African National Defence Force refers to as a need to ‘ Utilise local and global instru- (SANDF), deployment into Burundi as potentially ments to nurture new governance norms’. risky affair, given that not all the groups have Equally as engaging is John G Yoh’s piece on accepted it. Theo Neetling’s piece focusses on the the historical roots, and constitutional bases for a actual SANDF deployment into Burundi. He takes settlement of the Sudan civil war. He looks at what us through the specifics of some of the legal, consti- he has categorised as the ‘unionists’ and ‘secession- tutional and international themes underlying this ists’ and discusses the different constitutional forms deployment, and. While he also points to some which they continue to articulate for a resolution to potential risks, he expresses optimism about the the conflict. He identifies the important documents deployment itself. He draws our attention to the and agreements which have provided character to complete involvement of the South African the constitutional bases upon which the conflict Parliament in sanctioning the entire operation, the could be settled, and probes into the difficulties representativity of the force, the fact that it is com- associated with the issue of separation of religion posed of a broad range of skills and the swiftness at and state, which seems to have created a hurdle which it was executed. Neetling also expresses the between the dominant opposition forces in the view that it was a correct decision and that it signals South and the Government of Sudan. Yoh moves on a willingness on the part of African states to take to critically examine the different mechanisms for charge of handling their own problems. His opti- conflict resolution in Sudan, particularly as they mism is further underscored by his belief that this connect to the constitutional bases he identifies, particular experience will contribute to South while providing an in-depth insight into the current Africa’s collective peacekeeping experience, which state of play, and recommendations for a future set- although modest, has been growing, since the tlement. The piece will no doubt be of immense involvement of the SANDF in neighbouring DRC. interest and invaluable assistance to policy makers, In the final piece, Nantulya draws our attention to legal experts and analysts interested in Sudanese the socio-legal, historical and constitutional bases politics. Dr. Clive Napier, no doubt one of Africa’s around which traditional justice in Rwanda (known leading constitutional experts offers some short as Gacaca), is evolving. comments on constitutionalism, human security and At the present historical juncture, Africa is still conflict in Africa, which stems from a constitutional struggling to find acceptable organising principles roundtable which ACCORD hosted in September. around which to develop lasting political systems Napier provides us with some theoretical and con- that are broadly accommodative of the diverse ceptual questions underpinning the development of nationalities, cultures, identities and competing constitutionalism globally, and then looks at the socio-political peculiarities which characterize the human security interface as it relates to Africa. He nation state. This collection of pieces is a first step looks at the nature of the African state, the to discussing some of these challenges, but specifi- increased interest in constitutional development in cally as they connect to constitutionalism and con- the last ten years, the inherent challenges, and the stitution making. They reflect the diversity of the need to reconstitute and re-configure the African Continent, offer a multiplicity of views, and draw state in order to promote human security. from a wide range of perspectives. It is our fervent Moving over to Burundi, two pieces, each offer- hope that they stimulate debate, discussion and ing different perspectives are included. In the first interaction, and make a small and humble contribu- piece, Sagaren Naidoo, an expert from the Institute tion to the struggle for dignity, peace and reconcili- for Global Dialogue in South Africa takes a caution- ation in Africa. ary apporach towards the transitional government. The founder and executive director of ACCORD calls for a Global Framework for Cooperation, which would define the roles and responsibilities of all actors

FEATURE BY VASU GOUNDEN call for the establishment of a

for cooperation

wo recent experiences have made me realise more stable world. We should be witnessing mas- that I made the right decision 10 years ago, sive decreases in military spending and the repri- when I decided to abandon my career in law for oritisation of these resources into social spending, Ta career in finding solutions to world conflicts. in order to create a more humane and equitable The first experience relates to the Bush-Putin world. Advances in information and bio-technol- summit. Courtesy of CNN, and in the comfort of ogy should be exploited to combat Aids; to pro- my own home, I was able to experience the vide clean water to the worldís poor; to develop reshaping of history. I was moved by the current techniques to increase food productivity, while at rapprochement between the United States of the same time, protecting and preserving our nat- America and Russia. It signifies the beginning of ural environment; and to develop better instru- a new era in international relations, and an end to ments that would predict natural phenomena, the proliferation of weapons of mass destruction such as earthquakes, cyclones and storms, which by these two nations. It also signifies the final devastate the lives of millions of people through- hour of a global ideological conflict that has dom- out the world. inated world politics for several decades. Unfortunately, the historic significance and It should be a time for celebration. Our fears the potential opportunities of the Bush-Putin sum- of Armageddon should be replaced by hope for a mit have been overshadowed by the events of 11

4 FEATURE

September, which relate directly to my second tion the wisdom of this investment. I invested 10 experience. When news of the events in New York years of my life in pursuit of a conflict-free world came over the radio, I was in a taxi in Bonn, and, on 11 September, I questioned the wisdom of Germany, on my way to the Auswartiges Amt, my investment. My conclusion has only strength- Aus-und Fortbildungsstatte (Federal Foreign ened both my resolve and determination to continue Office) to, ironically, deliver a lecture on conflict to contribute towards shaping a better world for our management to German foreign service officers. children. Within a few minutes I was inside the federal It is incumbent on all of us in the field of con- building and once again, courtesy of CNN, I was flict management to question our efforts during allowed to experience the reshaping of history. the last decade. We have to understand why all These events have changed the world forever, our efforts have failed to reconcile the disparate and yet nothing has changed. Instead of evolving interests in the world. The world will continue to from conflict to peace, we have evolved from con- be characterised by a complex matrix of interests flict to conflict. An ideological conflict has been - ranging from individual to institutional - which replaced by an identity conflict. Instead of repri- will result in the continuous shifting of alliances. oritising our resources to combat Aids, we are This is a normal state of human existence. fighting anthrax; instead of providing clean water The challenge we face is to manage these dis- to the poor, we are spending money protecting the parate interests so that they coexist within an water of the more fortunate; instead of developing environment of stability and peace. One can rele- techniques for food production and environmental gate this responsibility to the UN on the basis that protection, we are developing techniques to pre- this was the reason for its establishment. It is vent terrorism; and instead of developing innova- within this context that we need to see the benefits tive instruments in order predict earthquakes and of our efforts during the last 10 years. Over the cyclones, we are developing advanced weapons last decade, the one lesson that we have repeat- and smart bombs with the aim of annihilating edly learnt is that no single entity is able to recon- each other. cile all the interests that characterise contempo- Are we at the end of Fukuyama’s history, or at rary conflicts. The resolution of conflict requires the beginning of Huntington’s Clash of the efforts of several players, who can compliment Civilizations? However we choose to characterise each other and act in concert. Cooperation, on the the world, what is certain is that we will be wit- basis of comparative advantage, is vital. nessing a world that will be shaped by new The last decade has helped us understand our alliances, new hatreds, new enemies and new comparative advantages; it has also helped us causes. How will we respond to these new chal- develop quality working relationships. In our 10 lenges? Are they, in fact, new challenges? years of existence, we have witnessed and experi- In this last decade, hope and fear consumed enced this development. In the early 1990s, the world. We saw hope in South Africa and fear NGOs, academics and governments met in their in Rwanda; we saw hope (although only briefly) in exclusive forums. By the end of the last decade, Northern Ireland and fear in Bosnia; we saw hope almost every conference, workshop and forum in Palestine and fear in Iraq; and then once again, concerned with conflict management included we saw fear in Palestine. It was a time when we participants from all these groups. Today, the pri- felt hopeful, yet hopeless. vate sector is also showing an increasing interest This was also a time when conflict manage- to get involved in this vital area. ment took centre stage in the work of the United We have to move our efforts one step further. Nations (UN), NGOs, donors, regional organisa- We have to evolve a Global Framework for tions and heads of state. There was a scramble to Cooperation, which would define the roles and understand the sudden proliferation of conflicts, responsibilities of all the actors, and which would which led to a proliferation of institutions, mecha- guide our collective modus operandi in situations nisms and instruments aimed at preventing, man- of conflict. This framework should take into aging and resolving these conflicts. Academics account our experiences during the last decade. It also made a contribution by publishing a dearth of should also be based on comparative advantage literature on conflict management. and mutual respect. The defining parameters have The world put so much effort into trying to already been established. All we need now is the understand and manage conflict. Many will ques- will to execute our intent!

5 TRENDS

SOUTHERN AFRICA now. It has reviewed the 1998 electoral code of conduct and together with other stakeholders, has During the last quarter, Lesotho has undergone established a new one with enforcement machin- significant constitutional and political reforms ery, which (at the time of writing) had been sent to aimed at paving the way for elections, which are parliament for assent. expected to take place in January 2002. The The objective of the new code is to promote Interim Political Authority (IPA) - a structure conditions conducive to free, fair and transparent which was formed following negotiations between elections. Every registered political party is all of the country’s political role players - has required to promote the purpose of the code while remained the central organ for political, electoral conducting campaigns. They are also required to and constitutional reform. It works in conjunction adhere to certain procedures, which include with the executive and legislative spheres of gov- instructing it’s representatives and supporters to ernment, as well as the independent electoral comply with the code and other electoral laws. It commission and civil society. The areas of elec- also contains sections on intimidation and unfair toral reform which have been addressed include electoral practices; violence and discrimination; the establishment of an electoral model; the estab- and the plagiarism of party symbols. It spells out lishment of an independent electoral commission; the duties of the ruling party; guarantees equal the establishment of a set of specific electoral access to public facilities and resources for all rules; and the establishment of a new electoral political parties; and contains a section on inter code of conduct. The IPA has also drawn up party collaboration. Finally, the new code con- arrangements to guarantee access of public facili- tains sections on the role of women within the ties and resources to all political parties. With electoral process; the functions and duties of the regard to the electoral model, the constitution has media in promoting an atmosphere conducive to been amended to cater for a mixed member pro- peaceful elections; and the establishment of com- portional system, with a mixed ratio of 80:40 first- munication channels between political parties past-the-post and proportional representation and the electoral commission. seats, respectively. This compromise is in At the time of writing, the voter lists had been response to the instability which was created by displayed and the IEC was already working on the first-past-the-post system used during the draft legislation for the establishment of a tribunal 1998 elections, where smaller parties were unable to handle electoral conflicts. It was also busy to secure a meaningful parliamentary presence. establishing enforcement machinery for the new The new Independent Electoral Commission code of conduct. According to the IPA, the out- (IEC) has been functioning for more than a year standing challenges are outlined as follows:

6 • The nature and composition of the upper house has not yet been addressed; • There may not be enough time to work on leg- islation aimed at instituting parliamentary committees, the roles of which would be to enhance the efficiency of parliament; • There is no agreement on the representation of women, as well as other special interest groups. EASTERN, CENTRAL AND THE HORN OF AFRICA

In Eastern Africa, Uganda’s movement system has produced a new parliament, with a substantial number of new members. The 26 June vote saw at least 10 ministers and more than 40 other elected members face defeat, as Ugandans voted for 214 directly elected parliamentarians. Under the country’s electoral system, political parties are not permitted to support candidates or publish plat- forms, as candidates are supposed to stand for election based on their individual merits. In addi- tion to the directly elected members, parliament is composed of 53 district women’s representatives, 10 defence force representatives and five repre- sentatives from the youth, disabled and workers groups, respectively - polling for these seats was held separately. When parliament met for the first time on 5 July, members elected the former deputy speaker, Edward Ssekandi, as speaker. Parliament then set up a committee of 67 mem- willwill herher votevote count?count? bers to vet President Museveni’s ministerial appointments, including that of former speaker, Francis Ayume, who became attorney-general. A constitutional review commission has also been appointed to make recommendations on constitu- tional reform, based on information gathered from the various political role players. ACCORD have trained over 16,000 people In Kenya, the appointment to the cabinet of three opposition politicians by President Daniel Arap Moi, has created a new political balance in from numerous African countries over the past the country’s constitutional review exercise. Leader of the National Development Party (NDP), Raila Odinga, was named energy minister, while decade. This includes some 4,000 South African three other party members were also offered min- isterial positions. Mr Odinga has been leading the election monitors trained in 1994 and over 2000 Inter Parliamentary Party Initiative on constitu- tional reform, which continues to clash with the civil society-led constitutional reform initiative. Nigerian election monitors trained in 1999 Although Mr Odinga and President Moi have had their differences in the past, the NDP has become closer to the president’s KANU party since sign-

TRAINING TRENDS

ing a cooperation agreement with it in 1998. It has form or content. With regard to the content, all even been speculated that the parties might merge authorised political parties or movements can take before the 2002 general election, at which point part in the administration of government institu- many expect President Moi to step down under the tions, in return for a commitment to work towards constitution’s term limits. Both parties have been peace, national reconciliation and democracy. Some 2,000 opposition collaborating in parliament, as well as on mini- The challenges facing the transitional government demonstrators from the mum constitutional reforms, which is seen by include the following: Basotho Congress Party some observers as a tactic by President Moi to • Facilitating the functioning of transitional polit- (BCP), Basotho National counter the opposition Democratic Party’s threats ical institutions as defined under the Burundi Party (BNP) and royalist to block the government’s legislative agenda. Peace Agreement. These include a transitional Marematlou Freedom However, Mr Odinga is thought to have presiden- executive, legislature and judiciary; Party (MFP) march tial ambitions, and this might complicate negotia- • Establishing conditions for the creation of through central Maseru tions between the two parties. As one of the main new political institutions and legal instru- following the 1998 actors in the efforts to amend the Kenyan constitu- ments, including an independent electoral general elections. The marchers demanded a re- tion, he is believed to favour a new distribution of commission; electoral laws; a constitutional run of the elections after power between a non-executive president and a court; and codes of conduct for political par- the landslide victory of prime minister. ties and other role players; the ruling Lesotho In Burundi, a transitional constitution has • The setting up of a National Truth and Congress for Democracy been established to guide the work of the transi- Reconciliation Commission, as well as facili- (LCD), claiming the poll tional government, which was inaugurated on 1 tating a process of constitution drafting; was rigged and accusing November. Of the 336 amendments lodged at the • Organising elections at the commune and the electoral commission national assembly’s bureau, only a few clauses in national level during the period of the transition; of bias. the text sent by the government were modified in WALTER DHLADHLA/AFP

8 TRENDS PEDRO UGARTE/AFP

Kenyan soldiers parade • Establishing codes of conduct for political options for a future constitutional and institutional 10 October 2001 in parties and the media. framework, has since expressed an interest in ini- Nairobi to celebrate In Somaliland, final results from a June referen- tiating a dialogue with the Republic of President Daniel arap dum showed 97% of voters supported a new con- Somaliland, as well as the self-declared Moi's 23 years at the stitution, which would assert the region’s indepen- autonomous region of Puntland in the North East. helm of the country. dence from the rest of Somalia. The final results This is seen as a vital move, which could poten- were endorsed by the parliament of Somaliland, tially contribute towards integrating the various which split from Somalia 10 years ago, but has not institutional and constitution-making initiatives been recognised internationally as a separate within the region. Reaction to the appointment of state. There have, however, been signs of opposi- the new TNG prime minister has been positively tion in the Southwestern Sool district, where some received in Puntland, which is also in the process sections of the population owe their allegiance to of electing a new administration through a general Puntland - another semi-autonomous region of constituent conference. The conference, which Somalia. The constitutional referendum also met was convened by traditional elders in the regional opposition from the Mogadishu-based, capital of Garowe, is aimed at resolving leader- Transitional National Government (TNG) and the ship questions. It is also aimed at reaching an Government of Djibouti. Meanwhile, the TNG, agreement on the continued functioning of the which is also in the process of drawing up it’s own regional administrations.

9 TRENDS

EAST AFRICA Despite the fact that violence from extremist fac- tions continues to threaten the fledgling govern- The United Nations (UN) mission in Ethiopia and ment, it is hoped that it will be able to restore Eritrea has reported positive progress regarding peace to Burundi, which has been torn apart by an the implementation of the peace agreements in eight-year civil war. connection with the border dispute between the Former president, Nelson Mandela - who bro- two East African neighbours. The progress of the kered the peace deal - has worked tirelessly to mission became threatened following accusations convince leaders from the Republics of Ghana, that the Temporary Security Zone (which separates Nigeria, Senegal and South Africa to provide mil- the two armies) had been compromised by Eritrea itary assistance to the new power-sharing govern- military activity. However, the accusation was ment. The overall operational objective of the found to be untrue - a finding that was supported deployment would be to assist in the creation of by the United Nations Security Council (UNSC). an environment conducive to confidence-build- The support given to the peace effort from all quar- ing. The deployment - referred to as the ‘interna- ters represents renewed commitment to finding an tional protection detachment’ - will consist of mil- amicable solution to end the conflict - a number of itary units from the aforementioned countries. The European countries have announced measures units will have two objectives: to provide security aimed at providing debt relief for these countries. to returning exiled politicians; and to train the According to reports, the African Development Burundi defence force. At the time of writing, only Bank is currently lending the Ethiopian govern- the South African government had deployed ment funds in support of a number of projects troops. However, there are positive indications aimed at rebuilding infrastructure. that the other countries will soon follow suit. This deployment posed some questions regard- ing the specific operations adopted, as well as the CENTRAL AFRICA legality of the deployment. It might suffice to say On 1 November, President Pierre Buyoya was that a memorandum of understanding is in place sworn in as the head of a three-year, power-shar- between the South African and Burundian govern- ing government in Burundi. He will hold office for ments, which should render some legality to the the first 18 months, at which time the current deployment. The presence and deployment of the vice-president, Domitien Ndayizeye, will replace force is strengthened by the support of the UNSC - him for the second half of the administration. support that is one level short of a mandate resolu-

10 TRENDS tion. From a doctrinal point of view, the efforts to peace process is poised to continue. While no resolve the Burundian conflict, and the deploy- finalisation has been reached regarding a date or ment of defence forces within the region, is revolu- venue, key parties to the conflict have agreed to tionary. The norm adhered to by the UN is that any continue the dialogue in South Africa. There is deployment must be facilitated by a ceasefire very little to report regarding the operational agreement - this condition does not exist in sphere of the UN mission, as the main focus has Burundi. The presence of external militaries could been on the dialogue. In response to some of the be summarised as preventive deployment, while at problems facing the mission, it is worth noting the the same time, confidence is being built within the critical role that a full deployment of the mission different sectors of Burundian society. It is too would have on the successful execution of its early to measure the success of this deployment. observer status. While the different parties - par- However, it is expected that the lessons learnt from ticularly the government - could become impa- this exercise will shape future conflict resolution tient, they must understand that the UN still efforts in ways previously unimagined. requires visible commitment from all conflicting parties, both on the security front, as well as dur- A Burundian police officer chases away a crowd of ing the dialogue. SOUTHERN AFRICA people trying to catch a glimpse at a camp set up The Democratic Republic of Congo (DRC) peace NORTH AFRICA by South African soldiers talks, which were held in Addis Ababa during in Bujumbura. A second October, were relatively unsuccessful. Only 80 of Western Sahara continues to defy an amicable contingent of 240 South the expected 330 delegates arrived for the talks. conclusion due to the UN’s failed efforts to con- African troops arrived to The poor turnout was largely due to a reduction of vince the conflicting parties to commit to an protect exiled politicians funding. The government delegation also left ear- agreement. The mandate for the UN mission for a returning to take part in a lier than expected. Despite this setback, the Referendum in Western Sahara expired, and the transitional government PEDRO UGARTE/AFP

11 ISSOUF SANOGO/AFP

UN secretary-general has requested a two- month materials were then used to make constructive A Pakistani United Nations extension. According to reports, the aim of this tools such as hoes, axes and shovels. These tools soldier from the UN extension would be to give the conflicting parties a will be distributed to the beneficiaries of the rein- Mission in Sierra Leone last chance to find common ground. The UN must tegration programme. There has also been progress (MINUSIL) shows the rise to the challenge and reconcile the different on the humanitarian front - the UN High entrance to a free-treat- ment hospital to a group views of the parties regarding the resolution of the Commissioner for Refugees and other agencies of women in Kailahun. conflict. However, the fact of the matter is that the reported positive progress regarding food distribu- After deployment, organisation has limited room to manoeuvre if the tion and the settlement of displaced people. The Pakistani UN soldiers have conflicting parties are not willing to seek and UNHCR even signed a Memorandum of set up a free-treatment uphold an agreement. The efforts of the UN would Understanding with the Economic Community of hospital in Kailahun as the be strengthened by the appointment of William West African States, in an effort to consolidate National Commission for Swing as special representative to the secretary- refugee protection; efforts to address the needs of Disarmement, general in Western Sahara. vulnerable groups in West Africa were also Demobilization and included in the memorandum. The focus of the Reinstatement (NCDDR), peace process has now been extended to include started the preparations WEST AFRICA the presidential and parliamentary elections, for the disarmement of the Kailahun district. The UN mission in Sierra Leone is enjoying some which are planned for May 2002. success, particularly since it reached its full autho- Efforts to set up a special international court rised capacity of 17.500 troops. During the last were boosted by reports that Japan will provide quarter, the mission started destroying the weapons financial support to the value of US$500 000. The that had been recovered by UN peacekeepers as court is considered to be a step in the right direc- part of the first step of the disarmament, demobili- tion to addressing the legacy of impunity. It will sation and reintegration programme. The second also provide a sound basis for future reconciliatory step began on 13 November, when weapons col- efforts. lected from ex-combatants were destroyed - the

12 TRENDS

he vision of an African Renaissance - has earmarked 14 March 2002 as the day for presi- defined as the total reawakening and rebirth of dential and parliamentary elections. Africa - is being transformed into reality thanks In an effort to curb terrorism on the continent, more to the efforts of many of our African leaders. than 10 heads of state, together with more than 20 TThis is quite evident, particularly when one consid- delegates from other African countries, met in ers the various efforts being made by Africa’s lead- Senegal. Following the meeting, it was decided that ership to end conflict on the continent. the Organisation of African Unity (OAU) - which is currently being transformed into the African Union - should monitor the implementation of the existing WEST AFRICA African convention against terrorism, which was Sierra Leone, Liberia and Guinea have agreed to put into action in Algiers two years ago. tackle the problems being posed by armed groups, which have destabilised the region. The three for- eign ministers met in Freetown and concluded that CENTRAL AFRICA the armed groups should be apprehended and The South African government has taken the lead returned to their countries of origin. Secondly, the in assuring a transitional government for Burundi. ministers agreed that a joint border security and This became particularly clear when the govern- confidence unit should be deployed along the bor- ment sent a contingent of SANDF troops to protect der, and that the non-aggressive and cooperative the return of exiled politicians. The country was treaty - which was signed by the three countries 15 preparing for its new transitional government, years ago - should be implemented. They also dis- which was meant to come into effect on 1 November cussed a possible summit between their presidents, 2001. This new development came immediately all of whom make up the Mano River Union - a after President Pierre Buyoya agreed to have for- body aimed at promoting sub-regional cooperation. eign troops deployed in Burundi to protect the tran- A meeting was organised by United Nations sitional government process, as well as returning (UN) officials - between the government in political exiles. President Buyoya committed to tak- Freetown and the rebel leaders of the ing this action despite criticism from some politi- Revolutionary United Front (RUF) - and was aimed cians. Nigeria, Ghana and Senegal have also at bringing peace to war ravaged Sierra Leone. The offered to contribute troops to a peacekeeping meeting resulted in a ceasefire agreement. The gov- force, as provided for under the Arusha Accord. ernment promised to release rebels who had been Although it is viewed as the most difficult con- arrested, while the RUF committed itself to disarm- flict on the continent, the Democratic Republic of ing its forces - a process that was due to end in Congo (DRC) situation is slowly showing signs of a November 2001. The government of Sierra Leone possible solution - hope resurfaced when a joint

13 TRENDS ISSOUF SANOGO/AFP

Pakistani United Nations commission was established to review the mutual the official recognition of the Berber language; sec- troops in Kailahun, east- demand for demilitarisation, made by both Rwanda ondly, a judicial trial of the paramilitary policeman ern Sierra Leone, 14 and the Kinshasa government. This came about involved in killing unarmed Berber civilians during November 2001 as the after a meeting was held between Paul Kagame and April and May of this year; and thirdly, an emer- National Commission for Joseph Kabila to discuss the issue of advancing gency economic plan to deal with the social depri- Disarmement, peace in the DRC. Kinshasa wants Rwandan troops vation of their region. Demobilization and to withdraw from the eastern part of the country, Reinstatement (NCDDR), while Kigali is demanding that Kinshasa disarm started the preparations SOUTHERN AFRICA for the disarmement of and demobilise the Rwandan Hutu rebel force, the Kailahun district, the which is operating within that region. This quarter has seen both the South African stronghold of the Development Community (SADC) and the Revolutionary United NORTH AFRICA Commonwealth work together in an effort to bring Front (RUF) . about stability to the Zimbabwean land crises. The conflict in Algeria - between the Berber com- Some of these efforts included the formation of a munity and the Algerian government, which has task force to monitor Zimbabwe’s commitment to contributed to a significant loss of life - seems to stop the violence and intimidation of white farmers. have ended. The turning point came when Land ministers also recommended that the govern- President Abdelaziz Bouteflika invited leaders of ments within the region should take a more active the Berber community to openly express their role in buying land for redistribution among the demands to the government. Based on those landless. However, a stern warning came from the demands, the government was able to grant the chairman of the SADC, Bakili Maluzi, who stated Berber community the following concession: firstly, that if the land problem in Zimbabwe was not

14 TRENDS peacefully solved, the political and economic fall- cal impasse between Somalia’s interim president out in Zimbabwe could easily affect the entire (Abdiqassim Salad Hassan) and faction leaders who region. The increasing level of instability would, in are opposed to his administration, Kenyan presi- turn, force foreign investors to turn their backs on dent, Arap Moi, managed to convene a meeting in SADC states. Nairobi, where the leaders met and discussed their On the other hand, the Catholic Church in differences. The United Nations Security Council Angola has launched a new joint campaign with the (UNSC) has made a recommendation that a UN mis- Open Society Foundation to assist in ending the war sion be sent to Somalia to carry out a comprehensive in that country. They aim to achieve peace by assessment of the security situation in that country. encouraging civil society to put pressure on warring It would also prepare proposals as to how the UN parties to seek a negotiated peace deal. could assist the transitional national government. Burundian traditional drummers look at soldiers on duty, at Bujumbura EAST AFRICA CONCLUSION internatinal airport moments before of President Benjamin Mkapa, and his Zanzibar coun- Africa still faces many challenges. However, these Malawi's president Bakili terpart, Amani Karume, together with the chairman should be viewed in the light of the efforts and Muluzi arrival, in Burundi of the Civic United Front (CUF), signed a deal to achievements of Africa’s leadership to end the vari- 31 October 2001. A tran- end years of hostilities regarding the electoral sys- ous conflicts. In this quarter, we have witnessed the sitional, power-sharing tems on both the island and mainland Tanzania. commitment shown not only by the UN, but also by government took charge According to the agreement, a permanent voter reg- some African leaders, to bring about peace - partic- in Burundi in early novem- ister will be established, electoral laws and policies ularly in Burundi and the DRC. One should also ber, in a bid to steer the will be reformed, and the state-owned Zanzibar commend the firm stance taken by the SADC in country out of eight years media will be urged to give coverage to all parties. relation to Zimbabwe. of war between ethnic Tutsis and Hutus. In a strategic effort to breach the ongoing politi- PEDRO UGARTE/AFP

15

WALTER DHLADHLA/AFP WALTER Lesotho gears up for elections in 2002

BY ADV. PONTSO MATETE MAMATLERE LESOTHO

reforms in Lesotho

esotho’s path to democracy has often been dif- election outcome, alleging the BNP had rigged the ficult and uncertain. The country gained process through tacit collaboration with the British independence from Great Britain in 1966, colonial administration. This was followed by vio- L and adopted a constitutional monarchy lent conflicts - not only was human life lost, but the with a First-Past-The Post (FPTP) electoral system. image of the monarchy was also tarnished. The first democratic election was held in 1965. Democratic rule ended in 1970, when the Although the general administration of the prime minister and BNP leader, Chief Leabua electoral process did not encounter serious hic- Jonathan, in agreement with the BNP leader, Mr cups, the election outcome delivered a minority Ntsu Mokhehle, nullified the first post-indepen- government in favour of the Basotho National Party dence election results. Chief Jonathan subse- (BNP), which won only 42% of the total valid votes. quently retained power for 16 years, until he was The Basutoland Congress Party (BCP), the toppled in a military coup in 1986. Marematlou Freedom Party (MFP) and other inde- During the 1990s, a new attempt to introduce pendent candidates secured 58% of the votes. Like constitutional rule was undertaken. However, unre- other electoral processes on the African continent, solved constitutional tensions - which included the the BCP felt cheated by the electoral system. perceived imbalances created by a FPTP electoral Consequently, the opposition parties contested the system, as well as the lack of a code of conduct to WALTER DHLADHLA/AFP

17 LESOTHO

successfully manage inter- amendment to the constitution stipulated that party parliamentary democ- Lesotho was to be divided into 80 constituencies, racy - resulted in yet which meant an increase of 15 constituencies com- another coup during 1991. pared to the number of constituencies in the 1993 This time, however, the ban general election. WALTER DHLADHLA/AFP WALTER on political activity was In 1995, the BCP was split internally between lifted, a new constitution two rival factions, resulting in a constitutional cri- was adopted and elections sis. The BCP leader, Dr. Ntsu Mokhehle, left the were held in 1993. party, and through support from most of the mem- The outcome of these bers of parliament, formed the Lesotho Congress elections resulted in a land- for Democracy (LCD). This shift in the balance of slide victory for the BCP, parliamentary power suggested a constitutional which the BNP challenged flaw, which the constitution was not able to address by alleging numerous at that time. Furthermore, the shifting of political instances of electoral fraud. allegiance did not translate into accountability to Tensions were further the electorate, which these parliamentarians were heightened due to difficul- supposedly representing in parliament. This sce- ties which the BCP govern- nario is not peculiar to constitutional development ment encountered trying to in Lesotho - it is a feature of African politics maintain its authority over throughout the continent. the army and police. Partly Many BCP members and opposition parties in response to this problem questioned the constitutionality of the move, and (but also as a result of an attempted to disrupt parliamentary proceedings. imminent constitutional The legislature continued to meet until February impasse), a national dia- 1998, when the government called for its dissolu- logue was held during tion in preparation for the May elections. September 1995. The con- The LCD won the 1998 elections with 79 of the ference aimed to facilitate 80 seats. Although international observers con- Lesotho police officer some dialogue with those groups which had been cluded that the May elections had met interna- inspects ballot boxes in excluded from the parliamentary process. It also tional standards, some opposition parties chal- Maseru, at the included those groups which were instrumental in lenged the election result - at first through the Independent Electoral managing the affairs of Lesotho as a pluralist soci- courts, and then later, through marches and Commission (IEC) stores ety. demonstrations in which they called upon the king on the eve of the 1998 Among the recommendations passed by the and the Southern African Development general elections. conference was the establishment of an Community (SADC) to dissolve the elected govern- Independent Electoral Commission (IEC) to man- ment in favour of a government of national unity. age future electoral processes. Consequently, the Supporters of opposition parties camped outside constitution of Lesotho was amended (second the king’s palace, awaiting a response to their amendment to the Constitution Act 1997) in order demands from the king. to provide for the abolition of the office of Chief In August, a delegation from South Africa Electoral Officer, as well as the Constituency negotiated an agreement between the government Delimitation Commission. The amendment also and opposition parties - it was decided that a com- made it possible to establish the IEC, which was mission, led by South African Justice Pius Langa, supposed to assume the functions of the two afore- would investigate the alleged irregularities during mentioned offices. the elections. The birth of the IEC came with heavy amend- Protests against the results of the elections con- ments to both the Lesotho constitution and the tinued and became even more violent after the National Assembly Election Order of 1992. The publication of the Langa Report in September most important amendment was the enfranchise- 1998. The LCD government requested military ment of the 18 to 20-year old age group. Until that assistance from neighbouring countries in its amendment, the voting age was only 21. The efforts to restore law and order. In the process, reduction of the voting age meant an increase in property was damaged and many lives were lost. the number of citizens qualified to vote. Another As a temporary solution to Lesotho’s problems

18 LESOTHO in the aftermath of the 1998 elections, a political likely to be held in April/May 2002 - the IPA has compromise was reached between the government drafted a bill and presented it to parliament for and opposition parties. An Interim Political consideration. Authority (IPA), consisting of two members from The bill can be summarised as covering three each of the 12 parties that contested the 1998 elec- broad areas:- tion, was established to review Lesotho's electoral • Giving effect of the fourth amendment to the system. The idea was to make it more democratic Constitution Act 2001. and representative of the people of Lesotho. The • Establishment of clear and transparent proce- IPA would approach the relevant public institutions dures for the casting of votes, the counting votes and recommend changes to existing laws (including and the announcement of elections result. the constitution), in order to attain its objectives. • Revision of the code of conduct - particularly The IPA was also mandated to prepare for gen- its enforcement mechanism - by creating a eral elections - they would be held within 18 special tribunal. months from the date of the commencement of the Under the revised code of conduct and its enforce- Act which established it. ment mechanism, the amendment bill seeks to:- In pursuing one of its objectives (and by learn- • Introduce a user-friendly code of conduct ing from previous political tensions which con- which could be easily changed into a booklet fronted Lesotho in 1998), the IPA unanimously for voter education purposes. decided to adopt a Mixed Member Proportional • Prevent the ruling party and its members from (MMP) system. The system uses the proportional abusing public property (as well as their privi- representation (PR) mechanism as a basis for allo- leges) during elections. cating political party seats, despite the fact that • Prohibit political parties from harassing mem- parties are entitled to retain the constituencies bers of the media. Unfortunately, the political they have won. The system is currently being used parties and politicians are not protected from in New Zealand, Wales, Scotland and Germany. harassment by the media. However, the IPA did not manage to prepare for • Establish a tribunal appointed by the IEC to elections within 18 months, due to problems con- enforce the code of conduct. cerning the ratio of the 130 seats in the National After the official launching of the registration of Assembly. voters on 11 August 2001, chairman of the IEC The parties had all agreed on a Mixed Member indicated that ‘Lesotho belongs to the family of Parliament consisting of FPTP and PR seats. They nations. For her to be accepted, she has to prove had all agreed on the size of the National Assembly that she cherishes freedom and fairness for the (a total of 130 seats). One source of disagreement people, especially in the elections process’. concerned the mix ratio of the 130 National Assembly seats - there were parties which advo- EndnoteEndnote cated a 65/65 parliament, and there were other parties which advocated 80 constituency and 50 * ADV. Pontso Matete Mamatlere, Conflict Management Unit of PR seats in the National Assembly. To resolve the the Independent Electoral Commision of Lesotho conflict, the Arbitration Tribunal delivered a ruling References on 15 October 1999, which provided for a ratio of Booysen, S. et al. (1998). Lesotho Focus Project, The 1998 80/50 constituency to proportional seats, respec- Lesotho Election, Political Change, Voter Mobilisation and Voter Education, NDI, Washington. tively. It also ruled that in terms of the mix ratio, Kingdom of Lesotho (1993). The Constitution of Lesotho, the FPTP and PR seats should each form 50% of Government Printing, Maseru. the National Assembly seats. Kingdom of Lesotho (1997). Second Amendment to the After the ruling was delivered, the IPA and the Constitution, Government Printing, Maseru. government agreed that the number of seats in the Lesotho I.E.C. (1998). Lesotho Election Report, I.E.C. Maseru. National Assembly should stand at 120, 80 of which Matlosa, K. (1999). Elections and Election Administration: An should be constituency seats, and 40 party seats. Electoral Audit for Lesotho, Electoral Institution of South Africa, S.A. As a result, the constitution of Lesotho (fourth Svensson, (2000). A paper on Lesotho Election Needs amendment to the Constitution Act 2001) was Assessment, Denmark government. amended to cater for the MMP system, with a mix * Papers presented at the Awepa workshop on electoral reform ratio of 80/40 FPTP and PR seats. in Maseru. In preparation for the forthcoming elections -

19 SOFSANOGO/AFP ISSOUF

Redefining and broadening the norms of sovereignity and non-intervention in order to respond to the exigencies of the post-cold war period.

INTERVENTION BY PROF SEVERINE M. RUGUMAMU state

in Africa

ith the end of the Cold War, the universal longer defined in absolute terms. In addition, the foundations and pillars of global gover- charters of the United Nations (UN) and the nance seem to be slowly, but inexorably, Organisation of African Unity (OAU) are no longer taking shape. The emerging quest for funda- invoked as an excuse for inaction against gross Wmental human rights, democratic freedoms and a crimes against humanity. Arguably, protecting and respect for unity in diversity, is no longer an incon- assisting the masses of people affected by trovertible proposition. The ability of authoritarian internecine intra-state conflicts entails reconciling states to strip citizens of their right to security of the norm of international intervention with the tra- life, often shrouded under a thin veneer of non- ditional norm of national sovereignty. As would be interference in internal affairs of the state, is expected, the norm of sovereignty has been delib- increasingly challenged on a global scale. erately redefined and broadened, in order to Repressive and predatory regimes, as well as other respond to the new and emerging principles of human rights violators, are increasingly being ‘good governance’. Some states in Africa still strug- exposed and made accountable for their actions. In gle to perform the minimum tasks of maintaining fact, the traditional norms of sovereignty, consent domestic political order, and are finding it and non-interference in internal affairs are no immensely difficult to uphold their citizens’ basic

20 INTERVENTION MARTIN BUREAU/AFP

human rights. They continue to resort to brute world view such interventions - particularly a dis- The President of the MDC force, rather than negotiation and persuasion, in position, in some instances, to act without the con- (Movement for order to pursue the objectives of state-making, sent of states involved - as a potential threat to Democratic Change) in state consolidation, or simply, regime survival. their juridical sovereignty and political legitimacy. Zimbabwe Morgan The current policy thrust being promoted and Undoubtedly, the resulting misapprehensions have Tsvangirai gives a press supported by the UN Security Council (UNSC) and presented the international community with severe conference 01 July 2001 the OAU is that massive violation of human rights dilemmas, for both positions represent legitimate at the European and displacement within a country’s borders con- concerns. Parliament in Strasbourg, stitute an international security threat. In the same The objectives of this paper are three-fold. It western France. vein, international election observation and moni- will discuss how the norms of sovereignty and non- toring, as well as the IMF/World Bank intervention intervention are being redefined and broadened in within the economic realm, are perceived as legiti- order to respond to the exigencies of the post-Cold mate duties on the part of the international commu- War period. Further, it will attempt to explain dif- nity to promote and protect peace, democracy and ferent patterns of intervention within Africa during economic stability. They deserve international the last two decades. Finally, it will suggest how action. However, many countries in the developing some of the new norms of intervention could be

21 INTERVENTION

institutionalised into instruments of international wise. It is the need to fill the vacuum created by development and cooperation. such cleavages that makes international interven- tion a moral imperative. As Richard Falk observed: Changing Perceptions of ‘There is a clear trend away from the idea of Sovereignty unconditional sovereignty and toward a con- The UN Charter Article 2 (7) and the OAU Charter cept of responsible sovereignty. Governmental Article 3 (2) respectively stipulate that they will legitimacy that validates the exercise of sover- not intervene in matters that are essentially within eignty involves adherence to minimum human- the domestic jurisdiction of any state. For, in its itarian norms and a capacity to act effectively pure form, sovereignty means the power to make to protect citizens from acute threats to their decisions of the last resort, which cannot be over- security and well-being that derive from ridden or reversed by any other decision-maker or adverse conditions within a country.’ agency. However, under Chapter VII of the UN Charter, the UNSC has the power to determine The concept of sovereignty is better understood in what constitutes a ‘threat to the peace, breach of terms of conferring responsibilities on governments the peace, and act of aggression; and shall make to assist and protect all persons residing in their recommendations, or decide what measures shall territories - if governments fail to meet their oblig- be taken...to maintain or restore international ations, they then risk international scrutiny, admo- peace and security’. Such measures, according to nition, and possibly even condemnation and Article 42 of the same charter, may include ‘...such reprisals. According to Francis Deng, instead of action by air, sea, or land forces as may be neces- being perceived as a means of insulating the state sary to maintain or restore international peace and against external involvement or scrutiny, sover- security’. Ideally, the UNSC decisions are binding eignty is increasingly being postulated as a ‘norma- for all states under international customary law, tive concept of responsibility’. Consequently, regardless of whether they agree or not. In light of national sovereignty now requires a system of gov- this, the UNSC has broadened its security mandate ernance that is based on democratic popular citi- to include intra-state issues. The decision for inter- zen participation; the constructive management of vention was driven by humanitarian considera- social diversities; a respect for fundamental human tions, particularly those pertaining to refugees and rights; and the equitable distribution of national internally displaced persons - these people are wealth and opportunities for development. For a seen not only as civilian victims of war deserving state to claim sovereignty, it must establish legiti- protection, but are also thought of as people who macy by meeting minimum standards of good gov- could potentially destabilise neighbouring coun- ernance or responsibility for the security and gen- tries and regions. eral welfare of its citizens and, indeed, all those Viewed retrospectively, the current UNSC’s under its jurisdiction. The former UN secretary- willingness to intervene in inter-communal and general, Javier de Cuellar, underscored the bal- civil conflicts, has called into question the absolute ance that ought to be struck between sovereignty nature of sovereignty. While almost all states and the protection of human rights. He wrote: highly value their sovereignty, many others (as well ‘It is now increasingly felt that the principle of as multilateral agencies) are beginning to adopt a non-interference with the essential domestic more qualified position to the sovereignty of others, jurisdiction of states cannot be regarded as a particularly those states that behave poorly toward protective barrier behind which human rights their own citizens or neighbouring communities. could be massively or systematically violated The horrendous tragedies emanating from intra- with impunity...The case for not impinging on state conflicts have irretrievably eroded the intrin- the sovereignty, territorial integrity and politi- sic meanings of national sovereignty and non-inter- cal independence of states is by itself indu- ference in internal affairs, in order to ensure inter- bitably strong. But it would be only weakened national access to the affected communities within if it were to carry the implication that sover- state borders. This argument becomes even more eignty, even in this day and age, includes the compelling in situations where states have col- right of mass slaughter or of launching system- lapsed, or where the government is unwilling to atic campaigns of decimation or forced exodus permit international involvement, despite the fact of civilian populations in the name of control- that the level of human suffering dictates other- ling civil strife or insurrection. With the

22 INTERVENTION

heightened international interest in universal- provision of basic social services, public security ising a regime of human rights, there is a and political patronage. In due course, bilateral marked and most welcome shift in public atti- donor agencies added political accountability to the tudes. To try to resist it would be politically as economic conditionalities already imposed by SAP. unwise as it is morally indefensible.’ Thus, the disbursement of foreign aid resulted in greater institutional transparency, broader political A year later, in his 1992 report, An Agenda for representation, government accountability, and Peace, the next UN secretary-general, Boutros- broadly defined democracy. As if that was not Boutros Ghali, provided far-reaching recommenda- enough domestic affairs interference, the 1989 tions regarding the UN’s intervention in internal World Bank Report advised African governments of conflicts, as well as its programmes for humanitar- the need to attack corruption and mismanagement, ian assistance. In fact, in 1991, the UN intervened promote the autonomy of the judiciary, and create in Iraq to protect the Kurds from President Saddam an enabling environment for resource mobilisation, Hussein’s genocidal attacks. It was the first time democracy and participatory politics. Viewed retro- since the Congo crisis that the UN had taken sides spectively once again, the traditional fixation on the and defined a country’s domestic problem as both concept of absolute and exclusive sovereignty in an international security issue, as well as an inter- Africa began to flag in the face of national economic national responsibility. Subsequently, the UNSC crisis and the attendant, yet unavoidable, external created two international tribunals - one in the for- intervention and control. mer Yugoslavia and another in Rwanda - to prose- Moreover, the ongoing processes of globalisa- cute those accused of war crimes, or crimes against tion, regionalisation and liberalisation are posing humanity and genocide. In 1999, it also authorised entirely new challenges to the politically unstable, virtual trusteeships or protectorates in Kosovo and debt-ridden, aid dependent and technologically East Timor, who were given the responsibility of backward African economies. An individual coun- protecting and providing for the local populations. try’s capacity to function effectively and sustain- In the words of David Scheffer ‘...governments ably is becoming increasingly compromised. could best avoid intervention by meeting their Reflecting on this gloomy scenario, the 1997 obligations not only to other states, but also to their Human Development Report concluded ‘...in a own citizens’. global economy of US$25 trillion, this is a scandal – reflecting shameful inequalities and inexcusable Economic Insecurity and failures of national and international policies’. The Sovereignty in Africa essential governance question is what rules and The erosion of African state sovereignty has come institutions should be put in place to preserve the about gradually, albeit with expected political advantages of global markets and competition, reverberations. From the early 1980s, most African while ensuring that globalisation works for people, governments reluctantly agreed to implement the and not just for profits. International Monetary Fund/World Bank economic structural adjustment policies (SAP), and accepted Africa’s Security and National direct interference in politically sensitive economic Sovereignty policy management in exchange for desperately Another major defining feature of the post-Cold needed international assistance. This development War era is the attempt to redefine national security, caused a change in the role of the state, relative to away from its traditional narrow ‘Realist paradigm’ both local governance on the one side, and multilat- preoccupation with state security, to human secu- eral institutions and non-governmental organisa- rity in all its multifaceted dimensions. In fact, tions (NGOs) on the other. From then onwards, there has been a steady, yet discernible shift away international financial institutions effectively took from ‘statist approaches’ to security, to what is fre- control of a significant portion of the continent’s quently referred to as a ‘new critical security para- economy, and imposed comprehensive programmes digm’. It is critical in the sense that it interrogates of currency devaluation, privation, market pricing, where power lies, how it is exercised and in whose and macroeconomic stabilisation. Furthermore, interests it functions. The primary referents and SAP policies and programmes challenged the polit- agents of the new security paradigm are the people ical and economic sovereignty of African states by themselves - whether individuals, groups repre- limiting the resources available to leaders for the sented by political parties or organs of civil society.

23 INTERVENTION ALEXANDER JOE/AFP

UN Secretary General Moreover, it is considered new because it is holis- Union. More specifically, the CSSDCA has high- Kofi Annan walks by tic. In its broad policy and analytical agenda, the lighted the need to build a new African security skulls at the Mulire emerging security paradigm also encapsulates non- framework. This framework would include a defin- Genocide memorial. military threats to national security, such as ition of security that would go beyond military con- poverty, disease, environmental degradation and sideration to include economic, social and political democratic governance. Acknowledgment of the dimensions of the individual, family, community, primacy of human security over state or regime local and national life. The framework would be security, tends to auger well for multinational inter- underpinned by mediation, conciliation and arbi- ventions conducted to arrest anarchy, restore order tration mechanisms, including (but not limited to) and protect innocent civilians. The defining char- the building of a continental peacekeeping acteristic of these interventions is that they are machine; development of non-aggression pacts; the often conducted without explicit consent of any establishment of an African Elders’ Council of domestic authority. Peace; utilisation of confidence-building mea- Major efforts that have been made to redefine sures; and the lowering of military expenditures. security include the African Leadership Forum’s Efforts are underway to institutionalise the CSS- 1991 Conference on Security, Stability, DCA within the OAU peace-building process. Development and Cooperation (CSSDCA); the Within the OAU, there has been a gradual OAU Mechanism for Conflict Prevention, redefinition and broadening of the concept of sov- Management, and Resolution, which was adopted ereignty. There is a growing consensus among at the Summit of African Heads of State in June member states that the OAU should increasingly 1993; and the Constitutive Act of the African concern itself not only with interstate conflicts, but

24 INTERVENTION also with internal ones. In July 1990, African lead- Beyond their direct toll on life, violent conflicts in ers met for their 26th Ordinary Session in Addis Africa have periodically assumed horrendous pro- Ababa, where the OAU’s involvement in intra-state portions, spawning population displacements, conflict management was initially endorsed. They refugees and migrations. As pointed out earlier, observed that ‘...we realise at the same time that such crises occur when beleaguered states loose the possibilities of achieving the objectives we control over substantial parts of their territories, have set will be constrained as long as an atmos- and no one has the monopoly over the means of vio- phere of lasting peace and stability does not prevail lence. In such tragic and traumatic circumstances, in Africa. We therefore renew our determination to civilians become the principal targets of violence. work together towards a peaceful and speedy reso- Some statistics are nothing short of staggering. The lution of all the conflicts on our continent’. Two office of the UN High Commissioner for Refugees years later, the OAU secretary-general, Salim A. reported that in 1997, it was responsible for the Salim, was even more categorical regarding the welfare of about 22 million people throughout the question of nation sovereignty and intervention. He world - about 13 million of whom were refugees in argued that ‘...given that every African is his the conventional sense of the word. In other words, brother’s keeper, and that our borders are at best people who had been uprooted by war, violence and artificial, we in Africa, need to use our own cultural the violation of human rights. Sub-Saharan Africa and social relationships to interpret the principle of accounted for about 35%, or 7.8 million refugees non-interference in such a way that we are enabled and displaced persons. The practical response of to apply it to our advantage in conflict prevention the international community to this mounting toll of and resolution’. Along similar lines to the UN’s tragedies has generally been intervention without reinterpretation of sovereignty, the OAU’s redefini- consent, in order to ensure international access to tion of intervention was qualified by two principal affected communities within state borders. caveats. Firstly, it was argued that the basis for Observers unanimously agree that conflicts and intervention within member states would be justi- insecurity in Africa have consistently hampered fied if there was a total breakdown of law and order economic development, and have delayed the (as was the case in Liberia), if there was the atten- emergence of democratic and pluralistic regimes. dant human suffering, and if a spill-over effect Thus, the enjoyment of human rights and freedoms could be experienced within neighbouring coun- has been restricted. Prior to the end of the Cold tries. In such a situation, intervention may be justi- War, the traditional peacekeeping principle of con- fied on humanitarian grounds, as well as on the sent served as the essential principle of action or need to restore law and order. Secondly, it was fur- inaction. The UNSC and the OAU authorised mul- ther argued that pre-emptive involvement should tilateral interventions in humanitarian crises, be permitted, even in situations where tensions where the consent of the major parties to the con- reach such a pitch that it becomes apparent that a flict was obtained. However, as earlier pointed out, conflict is in the making. in some complex humanitarian crises in Africa, it From then onwards, external interventions in has been profoundly difficult to depend on the domestic affairs were no longer viewed with such principle of consent as a prerequisite for interven- suspicion and disdain, as was the case in the past. tion. In several cases - for example, Sierra Leone, In this regard, various sub-regional economic com- Somalia and the Democratic Republic of Congo munities in Africa have increasingly become (DRC) - it has been almost impossible to obtain involved in security cooperation and conflict man- consent because the authority has collapsed, or a agement, thanks largely to the changing percep- proliferation of groups have claimed authority. tions of sovereignty and non-intervention. Understandably, in such circumstances, the con- sent is either non-existent or worthless, and all Complex Humanitarian aspects of international law and convention are Emergencies and Sovereignty in openly flouted. As a result, since the early 1990s, Africa the UNSC and the OAU have often addressed internal crises in Haiti, Cambodia, El Salvador, One of the defining features of the post-Cold War Georgia, Liberia, Mozambique, Rwanda, Somalia, era in Africa, is the increased number, scope and Sierra Leone, Angola and the DRC without prior intensity of domestic conflicts that have spilled (or consent. The question that is on everyone’s mind is have the potential to spill) over national borders. under what circumstances is the international com-

25 INTERVENTION

munity justified in overriding sovereignty in order legal authority to intervene and correct imperfec- to protect a dispossessed population within a tions. In practice, their ability to publicise short- state’s borders. The common assumption in inter- comings often make them important actors in their national law is that such action is justified when own right. Notwithstanding their circumscribed there is a threat to international peace and security, juridical role, international observers sometimes as currently construed by the UNSC. become mediators between ruling and opposition parties, or between election authorities and domes- Election Monitoring and tic monitoring groups. Its not surprising that the Sovereignty in Africa practice of international election monitoring has Until the late 1980s, international election obser- raised delicate and sensitive questions regarding vation was resented by incumbent regimes, which national sovereignty. tended to see it as an encroachment on their Election monitoring exercises have served dif- national sovereignty. It was admissible only in ferent functions in different countries. Particularly cases of decolonisation, as was the case in in African countries, they have been employed to Zimbabwe in 1980, and Namibia in 1989. bolster public confidence and promote participa- However, this stance has gradually given way to the tion; to detect and deter electoral fraud and irregu- view that international election observation is a larities where the ruling party controls the govern- legitimate pursuit - indeed, a duty - of the interna- ment apparatus; to avert the outbreak of armed tional community in the interest of democratisation conflict; to provide international legitimisation of worldwide. However, it is viewed as legitimate only an otherwise controverted process; to enhance the if two basic preconditions are met: firstly, that elec- meaningful nature of the electoral process itself; tion observation missions must take place on the and to encourage the political contestants to accept basis of a formal invitation by the government con- the results of a legitimate electoral process. The cerned; and secondly, that election observation presence of international observers has strength- must take place only in countries that have ened the institutional climate for elections by acceded to the various international human rights emboldening government and electoral officials, instruments, all of which (except the African judges, military personnel, police and journalists Charter on Human and Peoples’ Rights) refer to muster the necessary courage to assert their explicitly to the holding of free and fair elections. independence. The last two decades have witnessed a dramatic As would be expected, some African leaders revival of interest in democracy and democratic still consider international election monitoring as politics throughout the African continent. The tantamount to meddling in their internal affairs – a wave of popular demand and international pressure principle that obviously favours incumbent govern- for political reform witnessed numerous authoritar- ments. Worse still, election monitoring by interna- ian regimes, single-party dictators and military tional observers invokes (in some politicians) elites being overthrown through the ballot box echoes of north-south colonial relationships from mechanism. Equally remarkable has been the the not-too-distant past. As Jennifer McCoy (et al.) speed with which multi-party forms of political poignantly observed, ‘...no principle has been more mobilisation and competition were established as frustrating to an expansive power, and more sacred the new context for political contestation. to a weak nation, than sovereignty’. Not surpris- Moreover, most poor African governments tend to ingly, most governments in Africa have grudgingly seek technical, logistical and financial assistance accepted such interventions - under considerable from the international community, as well as the external pressure. Moreover, the new geopolitical presence of international observers at the time of situation after the Cold War allows the interna- elections. The need for international election mon- tional donor community to include explicit politi- itoring arose out of the obvious need for impartial cal requirements in terms of their foreign assis- judgment regarding the various electoral tance policies. Explicitly or implicitly, they impose processes. At the same time, the international com- conditionalities related to the protection and pro- munity felt a responsibility to assist in overseeing motion of human rights, democracy and aspects of the proper conduct of elections, in accordance with ‘good governance’. This also encompasses the emerging international standards. rights of political participation and competition for In theory, the role of international election state power, through regular and fair elections, that observers is a relatively passive one. They have no serve to legitimise governmental authority.

26 INTERVENTION

Notwithstanding the concerns about sover- grated in all development cooperation arrange- eignty and national security, the practice of observ- ments, and be provided with the requisite political ing and monitoring elections is gaining increased and material support. Finally, it should be under- acceptance and legitimacy throughout the world. stood that these social processes are not only For example, the Conference on Security and closely inter-related and mutually reinforcing. Cooperation in Europe (CSCE) issued a declara- More importantly, they are riddled with a multi- tion in June 1990, requiring all member states to plicity of contradictions. Simplistic quick fixes accept the presence of international observers for should always be avoided. national elections. The UNGA adopted a resolu- tion in December 1991, which endorsed the prac- EndnoteEndnote tice of election observing, including monitoring by NGOs. All these pronouncements tend to empha- * Professor. Severine M. Rugumamu, Conflict Management sise the view that international election monitoring Center, OAU is no longer considered to be an infringement of References the national sovereignty of a particular state, or as Bakwesegha, C. Conflict Resolution in Africa: A New Role for interference in a country’s internal affairs. By the Organisation of African Unity? In Sorbo, G. & Vale, P., December 2000, the OAU had observed more than (Eds) (1997). Out of Conflict: From War to Peace in Africa. Uppsala: Nordiska Afrikainistitutet, 79-96. 90 elections in 39 member states. In most cases, Boutros-Ghali, B. (1992). An Agenda for Peace: Preventive potential conflicts were diffused - as was the case Diplomacy, Peacemaking And Peacekeeping. New York: in Lesotho, Togo, Congo and Gabon. In others - United Nations. namely Namibia, South Africa, Mozambique and Buzan, B. (1991). People, States and Fear. Second edition. the Comoros - actual conflicts were resolved. The Boulder, CO: Lynne Reinner. critical role of international election monitors can Conference on Security and Cooperation in Europe. Document of the Copenhagen meeting on the Conference on Human hardly be overemphasised. To this end, Chris Dimension (1990). Bakwesegha has graphically concluded that Deng, F. Reconciling Sovereignty with Responsibility: A Basis ‘...Africans have been spared such absurdities as for International Humanitarian an Action. Harbeson, J & the incumbent winning an election by 99.99%’. In Rothchild, D., (Eds) (2000). Africa in World Politics. New York: Westview Press, 353-378. the same vein, cases of legitimate losers contesting De Cuellar, J. (1991). Report of the Secretary-General on the election results are much fewer than before. Work of the Organisation. Conclusion New York: United Nations. Falk, R. (1993). Sovereignty and Human Dignity: The Search Although nostalgia about exclusive sovereignty for Reconciliation. Deng, F. & Lyons, T., (Eds) (1993). African Reckoning: A Quest for Good Governance. Washington, DC: still lingers in Africa, the global consensus towards Brookings Institution, 6-28. a broad redefinition of sovereignty seems to be McCoy, J. et al. (1991). Poll-Watching and Peacemaking, crystallising rapidly. Substantively and institution- Journal of Democracy, Vol. 2 (4). ally, new ground has been broken. The African Organisation of African Unity (OAU). Declaration of the continent is under tremendous pressure to perform Assembly of Heads of State and Government of the Organisation of African Unity on the Political and Socio- the task of state and nation building in a human, Economic Situation in Africa and the Fundamental Changes civilized and consensual fashion, and to fulfil all Taking Place in The World. Addis Ababa, (1990). these functions in a participatory fashion. Rugumamu, S. (1993). Post-Cold War Peace and Security in However, it was noted that the norms of civilised Southern Africa. SAPES Occasional Paper Series, No5. state behavior seem to contradict the imperatives Salim, S. (1992). OAU Report of the Secretary General on of nascent state building that not only sanction, but Conflicts in Africa. OAU Secretariat, Addis Ababa. Scheffer, D. (1992). Toward a Modern Doctrine of also frequently require the use of violent means Humanitarian Intervention. against otherwise recalcitrant domestic groups and University of Toledo Law Review 23. individual citizens. To be sure, the enormity of the United Nations Development Programme. Human challenge of state building in Africa can hardly be Development Report. New York: Oxford overemphasised. In this regard, the continent University Press, (1997). needs to marshal every international support in United Nations High Commissioner for Refugees. The State of order to facilitate the building and nurturing of the World’s Refugees: A Humanitarian Agenda. New York: Oxford University Press, (1997). politically responsive and administratively effec- World Bank. Sub-Saharan Africa: From Crisis to Sustainable tive states. The norms of democratic governance, Growth. Washington, DC: The World Bank, (1989). human rights and nation building should be inte-

27 MARWAN NAAMANI/AFP

The best approach to resolving the Sudanese conflict would be to address its root causes.

SUDAN BY JOHN G. NYUOT YOH the dynamics of

in Sudan

lthough it would seem that countries are more 2. The colonial history of the two regions reveals interested in Sudan’s oil rather than its that they were administratively developed as peace process, the best approach to separate entities. The Egyptian and British A resolving the Sudanese conflict would colonial authorities treated the two regions of be to address its root causes. Throughout its three the country differently, and did very little to phases - 1955-1972; 1975-1982; and 1983 to date forge any meaningful political integration of the - the main causes of the conflict could be summed two regions. The South was politically adminis- up as follows: tered as a separate entity from the North. The 1. Cultural, religious, historical, ethnic and polit- North was treated as part of the Middle Eastern ical diversity between the North and the South. world, whereas the South was administered as The South sees itself as African, mainly part of the British East Africa territories. Christian, and a historically separate entity 3. For various historical reasons, the South is eco- from the North, which sees itself as an nomically underdeveloped as compared to the Arabicised Muslim entity, where the majority North, where the colonial administration con- of the population (although black and thus centrated the country’s main economic pro- African) is affiliated to Arab culture and jects. However, oil was discovered in the South Muslim religion. in the early 1980s. The region also has good FORREST/AFP STEVE

Sudan People's Liberation Army (SPLA) soldiers guard the front lines in the 'liberated zone' of East Sudan 10 28 November 1999. The 'liberated area' is an inhospitable desert with scattered populations and very little in the way of natural resources. The rebel movement has been fighting the Islamic government in Khartoum since 1989.

SUDAN

water reserves and fertile agricultural lands. President Jaafar Mohamed Numeiri, who came With these resources becoming increasingly to power via a military coup in May 1969, commit- important factors in Sudanese politics, there is ted three deadly political mistakes which eventu- no doubt that they will continue to be key con- ally led to his overthrow and the eruption of a third tentious issues in North-South relations. civil war. Firstly, in 1981, he attempted to redraw The modern civil wars in the Sudan can be traced the North-South boundaries as they stood in back to August 1955, when the first military rebel- January 1956. His aim was to ensure the North lion - historically referred to as ‘Torit Mutiny’ - would obtain the oil rich southern province of erupted, sparking the first civil war in the country. Bentiu (in the western Upper Nile) and the agricul- That war only came to an end in February 1972, tural rich province of Renk (in the northern Upper when the Addis Ababa Agreement was signed Nile). Secondly, he redivided the South in May between the central government and the Southern 1983. Three small regions were formed, with capi- Sudanese Liberation Movement (SSLM), or Anya tals in Juba, Malakal and Wau. In taking this Nya One. Indeed, it was hoped that the Addis action, he violated the essence of Addis Ababa Ababa Agreement would erase the ‘Torit Mutiny’ Agreement of 1972. Thirdly, General Numeiri legacy from the minds of the southern Sudanese. A declared the application of Islamic laws through- few years later, it became apparent that the legacy out the country - including the Christian South - on was destined to stay on - a group of soldiers 25 September 1983. rebelled in the town of Akobo in March 1975. They Numeiri was overthrown by a popular uprising were protesting against the government’s policy of in April 1985. A joint military-civil government, transferring to the North, some former AnyaNya under General Abdel Rahman Sawar al-Dahab, units which consisted of the bulk of pre-Addis took power. In May 1986, an elected civilian gov- Ababa Agreement SSLM forces, who had been ernment took over the administration of the coun- integrated into the Sudan army in 1972. Those who try, under the premiership of Sadig al-Mahdi. Al- mutinied in Akobo organised themselves into a Mahdi tried, along with allies in the North, to guerrilla force called AnyaNya Two. Their leader achieve peace with Colonel Garang’s SPLA. In was Commander Vincent Kwany Latjor. Eight November 1988, Al-Mahdi’s ally and leader of the years later, another mutiny took place in May Democratic Unionist Party (DUP), Muhammed 1983. It was led by former senior AnyaNya offi- Osman al-Miraghani, signed an agreement with cers, Kerubino Kwanyin Bol and William Nyuon Colonel Garang. The agreement called for a gen- Bany, in the towns of Bor and Ayod. They were eral conference to be held in 1989, between the protesting against the central government’s viola- SPLM and other Sudanese parties. Before that con- tion of the Addis Ababa Agreement, and joined the ference could take place, an Islamist coup, led by 1975 Akobo mutineers, who were already waging General Omar Ahmed Al-Bashir and Dr. Hassan war against General Jaafar Numeiri’s government Abdalla al-Turabi, toppled Al Mahdi’s government. from their bases along the Ethiopian/Sudanese What followed was a confused situation that led to border. In 1983, these southern groups organised an ongoing, chaotic situation. The government themselves under the umbrella of the Sudan declared ‘Jihad’ (holy war) on the southern libera- People’s Liberation Army/Movement tion movements. Uncoordinated covert and overt (SPLA/SPLM). John Garang de Mabior became peace talks were launched between the SPLA fac- leader of the SPLA/SPLM, but his leadership was tions and the governments of Nigeria, Kenya and challenged in August 1991. The challenge was Ethiopia. Peace talks were also held in some mainly due to ideological differences within the European and American cities. Other peace initia- movement, particularly between the unionists, who tives were initiated by some Sudanese groups, by were led by Colonel Garang, and the secessionists, non-Sudanese organisations and by the OAU who were led by Riek Machar and Lam Akol. The (through IGAD). The quarrel between al-Turabi outcome was a bitter power struggle between the and his students (mainly his deputy, Ali Osman two groups, which resulted in the disintegration of Taha) over power - and over what some claim as the the SPLA. Several organisations were formed fol- uneven distribution of oil revenues (being lowing the SPLA split. Sadly, hundreds of innocent extracted from the war-torn South) among ruling lives were lost during this time, and the differences National Congress members, as well as the clash and disputes dragged on into an ongoing and com- among the Sudanese Islamists - led to al-Turabi’s plex stalemate. imprisonment. The oil industry’s role in the coun-

30 SUDAN try’s politics; the split within the National For example, on the issue of national unity, Democratic Alliance (NDA) - the umbrella group- Article 6 of the Constitution of July 1998, states that: ing of the northern Sudanese opposition parties, ‘Sudan is united by the spirit of loyalty and which are allied with Colonel Garang’s SPLA fac- compromise among citizens, cooperation in tion; as well as a host of other developments during fair and just distribution of authority and the last 12 years, including the controversial issue national resources. The state and society shall of the abduction of southerners by northern militia work together to foster the spirit of reconcilia- in the western Bhar El-Ghazal region (an exercise tion and national unity among all the Sudanese referred to by some as slavery) - all these incidents people, to guard against religious parties, and events have contributed to Sudan’s volatile, political sectarianism and to eliminate ethnic and often violent, history. prejudice.’ Since 1992, different mediators and Sudanese church leaders have tried to reconcile Dr. Machar The spirit of this article, which falls under the and Colonel Garang. Unfortunately, all their efforts ‘Guiding Principles of the State’, suggests that the have failed. Sudanese people have agreed to work for (and maintain) national unity based on the promises Constitutional basis for a Sudanese contained within the constitution. Consequently, it settlement is important to emphasise that should the warring The constitutional bases upon which the Sudanese parties agree to redraft this constitution, an empha- civil war could be resolved are enshrined in four sis should be placed on the distribution of author- important documents: The IGAD Declaration of ity and mechanisms for reconciliation. The truth of Principles in May 1994; the Asmara Declaration in the matter is that there is still no consensus regard- June 1995; the Khartoum (Sudan) Peace ing a foundation upon which this national unity Agreement in April 1998; and the Constitution of could be achieved or maintained. Essentially, if Sudan, promulgated on 1 July 1998. These docu- such consensus exists as Article 6 (as it seems to ments deal with contentious constitutional issues, suggest), the war that is currently raging should which are at the core of the Sudanese conflict. never have erupted in the first place. Moreover, These issues include the question of national unity; unless the dynamics of power politics are well the distribution of natural resources; the sources of defined at a national level, it would be difficult to legislation within the country (religion and state); guard against religious parties or ethnic preju- the judiciary system in the country; the federal sys- dices. Moreover, the issue of national unity is asso- tem; and the issue of self-determination for the ciated with the overall outcome of negotiations people of southern Sudan. In addition to the above, between the warring parties. In fact, it depends on other important working documents and agree- whether or not the parties agree to work for unity ments were concluded between the southern during the interim period. Sudanese and central governments in Khartoum - Regarding the question of religion and state, these documents and agreements should be incor- Article 65 of Sudan’s current Constitution gives the porated in order to achieve a comprehensive and sources of legislation as follows: lasting peace in Sudan. They include the March ‘The Islamic Sharia and the national consent 1965 Khartoum Round Table Conference, which through voting, the constitution and custom brought together the government of Sudan and are the source of law and no law shall be southern Sudanese political forces, both from enacted contrary to these sources, or without within and without the country; the documents of taking into account the nation’s public opin- the February 1972 Addis Ababa Agreement ion, scientists, intellectuals and leaders.’ between General Jaafar Numeiri’s government and the Southern Sudan Liberation Movement (SSLM); This article numerates the sources of legislation in and the documents of the Koka Dam Declaration of such a way that even though custom is recognised March 1986, between the SPLM and the Sudanese as a source of legislation - which seems to suggest National Salvation Democratic Alliance (SNSDA). it is the source of legislation for non-Muslims in These agreements and documents thoroughly the country - in practical terms, it has less impact addressed some important aspects of the interim compared to the other sources of legislation. The period, as well as post-war arrangements, which nation’s public opinion would definitely express would regulate the North-South relationship. the opinion of the majority who espouse Islam -

31 SUDAN

most of the scientists, intellectuals and leaders are programme, as compared, for example, to the derived from this group, which would definitely Asmara Declaration. It is true that in the Asmara enjoy the majority vote. Consequently, the warring Declaration, religion and state are only nominally parties should try to handle this issue in such a way separated - and while the declaration tries to avoid that would prevent diverse interpretations being the use of the word ‘secularism’ - it uses a formula made of the article by the two parties. that does not establish Sudan as a theocratic state, The same question was raised in the Khartoum as Article 9 of the constitution seems to suggest. (Sudan) Peace Agreement and the Asmara Apparently, the Khartoum (Sudan) Peace Declaration, where the conflicting parties dealt Agreement of April 1997, is more explicit with with the relationship between religion and state. regard to the relationship between the state and On the issue of a secular state, the NDA adopted religion during the interim period, as compared to citizenship as the basis for rights and obligations. other agreements that deal with the same issue. It accepted the incorporation of international and Chapter Three, Article 2 (A) 1 of the Khartoum regional human rights covenants and instruments Agreement, states that: within the constitution of Sudan. In the Asamra ‘Sudan is a Multi-racial, Multi-ethnic, Multi- Declaration, the state was given the duty of safe- cultural and Multi-religious society. Islam is guarding and guaranteeing religious freedoms. It the religion of the majority of the population, was also given the responsibility of criminalising and Christianity and the African Creeds are any religious intolerance and punishes. followed by a considerable number of citizens. On the other hand, Article 24 of the Nevertheless, the basis of rights and duties in Constitution of July 1998, states that: the Sudan shall be citizenship and all ‘Everyone has the right to freedom of con- Sudanese shall equally share in all aspects of science and religion, and the right to manifest life and political responsibilities on the basis and disseminate his religion or belief in teach- of citizenship.’ ing, practice or observance. No one shall be coerced to profess a faith in which he does not Concerning the sources of legislation within the believe or perform rituals or worship that he country, Chapter Three, Article 2 (A) 6 of the same does not voluntarily accept. This right shall be agreement, states that: exercised in a manner that does not harm pub- ‘(a) Sharia and Custom shall be the sources of lic order or feelings of others, and in accor- legislation (b) On the issues of Sharia, the par- dance with [the] law.’ ties agreed on a formula under which Laws of general nature, that are based on general prin- If we compare the above with another article in the ciples common to the States, shall apply at the constitution, it is clear that the state religious pol- national level, provided that the States have icy is presented to the Sudanese public as a duty the right to enact any complementary legisla- required to be fulfilled by all Muslims. Article 9 of tion to Federal legislation on matters that are the Constitution, entitled ‘Religion’ states that: peculiar to them. This power shall be exer- ‘Those working for the state and those in pub- cised in addition to the powers that States lic life should worship God in their daily lives, exercise on matters designated as falling for Muslims this is through observing the Holy within their jurisdiction, including the devel- Quran and the ways of the Prophet, and all opment of customary law.’ people shall preserve the principles of religion and reflect this in their planning, laws, poli- This article is clearer on the question of legislation cies and official work or duties in the fields of than Article 65. It is also very close to the Asmara politics, economics, and social and cultural Declaration’s interpretation of the sources of legis- activities; with the end of striving towards the lation during the interim arrangements. societal aim of justice and righteousness, and On the question of a secular versus religious towards achieving the salvation of the kingdom state, the 1994 IGAD Declaration of Principles of God.’ (DoP) provides a way out for the warring parties. Article 3.4 of the declaration deals with interim Sections in the 1988 constitution that deal with arrangements which would be applicable if a secu- the relationship between state and religion, tend to lar system were installed in the country. The main give Islam more weight as the state philosophy and assumption in this article is as follows: should all

32 SUDAN the Sudanese parties agree to a secular system, the (ii) of the Khartoum (Sudan) Peace Agreement clauses that guarantee self-administration for the clearly explains that after the expiration of the four- Nuba Mountains and the Blue Nile Province, as year interim period, a referendum must be con- well as self-determination for the people of south- ducted in southern Sudan (its borders as they stood Libyan leader Muamar ern Sudan, would naturally fall in line with the on 1 January 1956). Chapter Five of the same Kadhafi (L), is escorted spirit of the DoP, which gives priority to the unity of agreement deals, in some detail, with how the South by his Sudanese coun- terpart Omar al-Beshir the country during the interim period. should be governed during the interim period. upon arriving in It should be emphasised that almost all the On the other hand, Article 2 of the DoP clearly Khartoum 10 May agreements signed by the southern Sudanese politi- states that should the interim arrangements reveal 2001. Kadhafi is on a cal forces and their northern counterparts between that the relationship between the central govern- two-day visit for talks on 1992 and 2000, have endorsed self-determination ment and the southern region is not conducive to a bilateral relations and for the people of southern Sudan as a viable option, peaceful coexistence, then the right to self-deter- on an Egyptian-Libyan which must be considered during the interim period mination should be granted to the people of south- bid for finding arrangements. For example, Chapter Four, Article 6 ern Sudan. peace in Sudan. SALAH OMAR/AFP SALAH

33 SUDAN

Kenyan President Daniel Without specifically naming them, Article 3.2 from ‘marginalised areas’, with the same rights to arap Moi (R) talks to for- of IGAD’s DoP refers to the status of the people self-determination as the people of southern Sudan. mer US President Jimmy from the Blue Nile and Nuba Mountains, who are This view is in direct opposition to the SPLA’s posi- Carter (2D L) as Sudanese allied to the SPLA: tion, which insists that if the government of Sudan President Omar el-Beshir ‘...Extensive rights of self-administration on refuses to accept the secular state formula, then the (L) and his Ugandan the basis of federation, autonomy, etc., to the marginalised people (who are its allies) would have President Yoweri Museveni sign an agreement in various people of Sudan must be affirmed.’ the same right to self-determination as the people of Nairobi 08 December the South. The northern Sudanese political parties 1999. Uganda and Sudan The implication in this article is that the people aligned to the NDA, and the Sudan government, took a cheerful step to from the Nuba Mountains and Angassana Hills of will only go as far as granting these marginalised ending half a decade of the Blue Nile - who are fighting along side the people the right to self-administration. chilly relations today, SPLA - will have their problem resolved within a It should be mentioned that in all the negotia- when the two states' presi- united Sudan formula, preferably a federal system tions between the SPLA and the government of dents agreed to stop that would address their grievances. The Sudan Sudan, the secular democratic state formula has backing the others' government and the northern Sudanese political always contradicted the philosophy and beliefs of rebels and signed a parties who are members of the NDA, are vehe- the National Congress ruling party. For the SPLA, 11-points agreement mently against providing these people, who are the secular state is the best option, since it SIMON MAINA/AFP

34 SUDAN includes a choice between an Islamic state or a terms. The states or regions have no right to claim secular democratic Sudan. As understood by the any resources that fall within the above definition. SPLA and other southern Sudanese forces, an Therefore, it is important for the Sudanese warring Islamic state formula would mean that the parties to work out a formula which would give the Khartoum government would be continuously at southern regions some transitional or special privi- war with those who opposed its philosophy. In leges, particularly when it comes to the distribu- other words, the separation of religion from state tion of natural resources such as oil and gold politics, as understood by the SPLA, is the precon- reserves. dition for a united Sudan. Consequently, it is the Another constitutional arrangement that would Sudan government’s insistence on selling the for- have to be thoroughly deliberated by the conflict- mula of an Islamic state that has made such con- ing parties - particularly the SPLA and other cepts as self-administration and self-determination southern forces - is the federal arrangement for- acceptable options for those who do not espouse to mula that the government of Sudan has presented the philosophy of an Islamic state in Sudan. as the best option to govern post-war Sudan. After Another option presented by the SPLA as a the settlement of the southern Sudan problem, and possible solution to the dilemma of a secular demo- assuming the country remains united, will Sudan cratic state versus an Islamic state, is the concept be ruled through a federal system as it stands today of confederation. This option suggests a confederal (in other words, 26 states) or will the South opt to arrangement between the North and South, allow- merge its 10 states into three, or perhaps even into ing the country to remain a single international one state? There is also the question of provincial legal personality. It would entail the South taking and state boundaries between the North and South. full control of its security. However, the oil revenue According to Article 109 in Sudan’s Constitution of would be shared equitably. The advocates of this July 1998: suggestion argue that the confederal arrangement ‘The boundaries of the state shall be those would confine the majority of Christians to the existing on the day the constitution comes to South - this would minimise the common territo- force; boundaries between states may be ries, providing a way out from the impasse over the amended by law passed by the National issue of state and religion. The problem with this Assembly and signed by the President of the suggestion - which the SPLA leadership has pre- Republic after hearing the views of the respec- sented several times as a viable option for the reso- tive Governor or State Assembly.’ lution of the southern Sudan problem - is the terri- torial claims that the SPLA has been forwarding, This article gives the National Assembly and pres- suggesting the southern Sudan borders should also ident the right to amend any boundary between two include the Nuba Mountains and some parts of the states, should they feel it was in the interest of the Blue Nile. Looking at it from the secularists’ point central government to do so. A similar article in of view, the confederal option is a remedy to the the 1973 constitution of Sudan gave General Jaafar Sudanese government’s unwillingness to accept the Numeiri the right to attempt to readjust the bound- separation of state and religion. aries between the Blue Nile and the Upper Nile Another contentious issue that must be dis- provinces, with the aim of annexing the agricul- cussed (and resolved) is the question of how the tural rich province of Renk - this attempt was made national wealth should be distributed. Article 9 of in 1981. In the same year, Numeiri tried to annex the July 1998 Constitution of Sudan states that: Bentiu - the oil rich province in the western Upper ‘All natural resources under ground, on its Nile - to Southern Kordufan province. surface or within the territorial waters of the Sudan are public property and shall be gov- Conditions to attain peace in Sudan erned by law. The state shall prepare plans There are three important factors that could make and prompt the appropriate conditions for the attainment of a comprehensive and inclusive procuring the financial and human resources peace agreement between the North and the South necessary to exploit these resources.’ rather remote: 1. The ongoing factional fighting and ideological This article gives the state (the central or federal differences among southern Sudanese politi- government) the sole monopoly on natural cians and rebel leaders makes it difficult for resources, and defines this right in unequivocal the South to be taken seriously by the North. A SUDAN

fragmented South would make it difficult to 2. The NDA should start serious talks with the convince the North that it was an entity ready Sudan government in order to settle their dif- to do peace business. ferences regarding issues that relate to gover- 2. The multiplicity of peace initiatives, as well as nance; human rights; constitutional reforms; the competition among mediators, is another party politics; the role of religion in the state; factor that has complicated the peace efforts in economic reforms; and so on. On the other the Sudan. Individual politicians - both from hand, the current alliance between the SPLA the North and South - have tried to bring peace and the NDA ought to be re-evaluated, because to the country for quite some time. The IGAD it seems that the NDA leadership is favouring peace initiative; Egypt and Libya; Nigeria, the Egyptian-Libyan peace initiative, which South Africa and Qatar; Eritrean and Ugandan does not address the issue of self-determina- leaders; the European IGAD Friends’ Forum; tion for the people of the South. The SPLA is former US president, Jimmy Carter; Lady apparently favouring the IGAD peace initia- Caroline Cox of Britain -all these stakeholders tive, which deals specifically with the southern have tried (and some are still trying) to per- Sudan problem, and which accommodates the suade the warring parties in Sudan to come to right of southern Sudanese people to self-deter- the table and negotiate in good faith. Sadly, all mination. The SPLA also seems to accept the their efforts have failed. idea of merging the two peace initiatives. 3. The current position of some northern 3. The question of power-sharing, and the distri- Sudanese groups and some Middle Eastern bution of oil and other natural resource rev- countries, which are against the principle of enues, ought to be discussed as part of the inclusion, of separation or the secession of interim period arrangements between the southern Sudan from the North as part of an South and the central government. overall solution to the conflict, is an obstacle that ought to be addressed. The demand of the Conclusions southern Sudanese people for the right to self- 1. The Egyptian-Libyan peace initiative is deal- determination has been nominally accepted by ing with the issue of governance; the role of both the government of Sudan and the north- religion in politics; human rights; and the rec- ern Sudanese opposition groups that are mem- onciliation of the government and the NDA. bers of the NDA. However, in practical terms, This initiative should be encouraged, because the NDA’s acceptance of self-determination is it would help bring northern Sudanese opposi- conditional, in a sense that the parties - the tion groups closer to the government. Such a SPLA and the NDA - pledged to give priority reconciliation among northerners would return to the unity of the country during the interim the Sudanese conflict to its original place: period. Most southern Sudanese people sup- north versus south. Once the North is recon- port the idea of the North’s unconditional ciled, the South would be forced to put its acceptance of the South’s right to exercise self- house in order. Its rebel movements, the determination in a free and fair internation- SPLA, the SPDF and other forces, would have ally-supervised referendum. to come to the peace process with one agenda. 2. The problem of the Nuba Mountains and the Sudanese peace process Blue Nile - whose inhabitants are part of the mechanisms: SPLA forces - should initially be addressed 1. The most important prerequisite to any peace and resolved at a SPLA level before a compre- initiative would be the unity of all the southern hensive peace agreement is signed between the rebel groups, the SPLA, the SPDF and other North and South. The SPLA’s insistence that forces. This unity must clearly state what the the southern Sudan borders should include the people of the South are fighting for. In so two aforementioned regions, which are tradi- doing, factional warfare between southern tionally part of the North, is one of the con- rebel groups would cease, and an acceptable tentious issues that the SPLA and the Sudan peace agenda for the southern liberation government delegates have been unwilling to movements could then be tabled at any peace compromise on. It should be mentioned that forum with the North. the map which the SPLA has presented to IGAD mediators since May 1993, is the same

36 SUDAN

map that was based on the 1920 ordinance, carrying out among the southern Sudanese which outlined the British policy of close dis- tribes since 1999. The Kisumu Declaration of tricts. At that time, a map was issued which June 2001 - a document that was issued as a consisted of the three southern provinces, some result of a meeting hosted by the NSCC in parts of the Blue Nile province and the Nuba Kenya, which brought together most of south- Mountains. However, the British government ern Sudan’s exiled military and political lead- reversed that policy in 1930, when it decided ers (with the exception of the SPLA) - urged that the country was to be administered as one the main military organisations in the South, entity. Until the reasons that underlie the the SPLA and the SPDF, to speed up unity SPLA’s territorial claims are addressed and set- negotiations. The Nigerian initiative is com- tled, they will continue to complicate the plementary to the Kisumu Declaration. Sudanese peace process. Perhaps the best way Finally, once southern Sudanese political out would be for the mediators to ask SPLA forces unanimously agree on common objec- leaders, both from the Nuba Mountains and the tives, any peace initiative - whether under Blue Nile, to spell out what their position is on IGAD, or any other regional or international the issue. As for the question of Abei, there forum - could bring a united South to the nego- seems to be a general consensus that it could tiation table with a united North. be discussed and resolved through direct 5. The indigenous peace process among the south- North-South negotiation. In any event, all the ern tribes should be encouraged in order to documents and agreements mentioned above avoid post-war southern Sudan instability. The have directly addressed the Abei issue, and the agreement between Dinka and Nuer was con- disputants could refer to them should disagree- cluded in March 1999 at Wunlit village in Bhar ments arise. el Ghazal, and it has already successfully 3. The factional politics within the South have brought about relative peace to the border areas created animosity between the region’s two of the western Upper Nile and Bhar el Ghazal. major tribes: the Dinka and the Nuer. 6. There is no doubt that southern Sudanese peo- Moreover, some smaller tribes - especially ple in Diaspora could become a source of con- those in Equatoria and the Upper Nile - feel flict, should they decide to take sides. On the the SPLA, as a movement, has discriminated other hand, they could facilitate reconciliation against and mistreated them. Consequently, among southerners, if they were included in fierce inter-factional fighting ensued within the peace process. They ought to be more the SPLA between 1995 and 1999. involved in the peace process, particularly Reconciling the SPLA factions is, therefore, a because most of southern Sudan’s educated vital prerequisite to any serious South-South individuals live abroad. In fact, it was the peace process. southern Sudanese people of Diaspora who 4. The Nigerian peace initiative of April 2001 - encouraged the NSCC to convene the Kisumu which aims to bring together the southern Conference in June 2001. Sudanese military and political forces, both 7. Southern Sudanese militia groups, who are cur- from within and without the country - will rently cooperating with the government of remain the workable initiative in terms of Sudan, should be encouraged to become part of, long-term positive outcomes. The unity of all and if possible, should be incorporated into any southern Sudanese political organisations peace process as part of southern Sudan’s polit- could have three long-term positive results. ical agenda - otherwise, if marginalised, they Firstly, it could pave the way for the main could cause havoc in post-war southern Sudan. southern Sudanese military organisations - the SPLA and the SPDF - to work towards a gen- EndnoteEndnote uine unity of purpose or military coordination. Secondly, although attempts have been made by the Sudan government and some northern * D.Phil candidate in international politics, Department of Political Sciences, UNISA, Pretoria. Research associate, The Sudanese opposition parties to derail it, the Royal Institute for Inter-Faith Studies in Amman, Jordan. The Nigerian initiative could consolidate the author of Janub al-Sudan: Afaq wa Tahdiyat (Southern Sudan: South-South peace initiatives that the New Prospects and Challenges). Amman: Al-Ahalia Press, 2000. (Arabic) Sudan Council of Churches (NSCC) has been

37 JEAN-PHILIPPE KSIAZEK/AFP

There is much that needs to be done in most parts of Africa to promote the idea of a constitution, constitutional- ism and human security

INTERVENTION BY CLIVE J NAPIER the case ofthe of

and private security

he notion of a constitution and constitution- tarian or autocratic government; antagonistic or alism goes back to the time of Aristotle conflicting groups within society; economic (384-322 BC). The different dimensions of decline; scarce resources; cross-border threats; security are increasingly being referred to in and many others. People in society strive for the Tthe contemporary literature on social, economic good life, and one of its many dimensions is that of and political issues concerning the continent of human security. Africa, as well as elsewhere. One hears references How is the objective of a good life and human to military security; private security; food security; security achieved? There are many mechanisms - water security; economic security; financial secu- both formal and informal - which can be employed rity; job security; land security; property security; in order to achieve this goal. Degrees of increased and so on. Security, in terms of the individual, human security and a fairly good life may be refers to a condition where the individual is achieved. However, as far as I am concerned, utopia untroubled by danger and fear, or feels protected has not been realised any where on this earth. against attack. Threats to the individual can (and Achievement of the good life is most likely to be do) come from a variety of sources and they can attained through formal structures, such the state take many forms - they can originate from a totali- and its institutions, which mediate between con-

38 INTERVENTION flicting interests, and which also protect such inter- purpose. For example, the preamble to the ests. Perhaps the most pre-eminent formal institu- South African Constitution seeks to heal the tion to mediate between conflicting interests within divisions of the past and establish a society respective societies - sometimes successfully and based on democratic values, social justice and sometimes not so successfully - is that of the consti- fundamental human rights. tution and its associated institutions, such as the 3. Constitutions provide government stability. courts of law, and security and military forces. Constitutions act as organisational charts or institutional blueprints. They regulate the Constitutions and constitutionalism relationship between political bodies, and Before discussing human security and its link to con- attempt to establish a measure of order and stitutions and constitutionalism within the African predictability between the institutions of gov- context and elsewhere, it is necessary to get back to ernment. They establish the rules for the gov- basics and remind ourselves of what a constitution is, erning game. as well as the nature of constitutionalism. 4. Constitutions protect freedom. Constitutions Broadly speaking, a constitution is a set of rules may have, as their central purpose, the con- - written and unwritten - that seek to establish the straining of government powers, and the mark- duties, powers and functions of the various institu- ing out of a government’s power and an indi- tions of government. It regulates the relationship vidual’s power. They may provide for personal between them, and defines the relationship freedoms through a bill of rights which then, between the state and the individual. Constitutions because they become embedded in law, are are usually written and the main provisions of con- termed civil liberties. These rights may be stitutional law are contained in a single document, termed as negative or positive - negative rights although there are often additional statutory provi- constrain the actions of government and posi- sions and conventions which develop over a period tive rights make additional demands upon of time. Consequently, constitutionalism can be government, such as the demand for housing, referred to in a narrow and a broad sense. In the education and human security (protection or narrow sense, constitutionalism refers to the prac- security services). tice of limited government, where government insti- 5. Finally, constitutions may legitimise regimes. tutions and processes are effectively constrained by The possession of a constitution is often a pre- constitutional rules. In a broad sense, constitution- requisite for becoming a member of the inter- alism refers to a set of political values and aspira- national community, and constitutions are also tions that reflect the desire to protect liberty used to promote respect and compliance through the establishment of internal and external within a state. checks on government power. Constitutionalism, in 6. Constitutions provide governments with a this sense, is a kind of political liberalism that sup- cloak of legality and give countries a purpose ports constitutional principles, including a bill of and identity. rights; the separation of powers; bicameralism; fed- To attempt to answer the second question - do con- eration; and decentralisation. stitutions really contribute to human security? The question which then arises is what is the Let us look at recent events in the United purpose of a constitution? Also, do constitutions States of America and the issue of human security really contribute to human security? To attempt to - the freedom from violence as defined above. The answer the first question, one should perhaps look United States has had a written constitution since at a few text book purposes (See Heywood 1789. It is the oldest, modern-day, written consti- 1997:chapter 14), although these are not necessar- tution in existence and has stood the test of time in ily congruent with what happens in the real world: terms of achieving all the goals as described above. 1. Constitutions empower states. They lay the However, it is not the complete ticket to utopia or framework for governments and empower them the good life, and it has not ensured complete to exercise authority over a particular territory. human security in that country. On 11 September Whether they are able to do so effectively is 2001, four aircraft were hijacked and subsequently another matter, which is discussed below. crashed into three buildings and an open area, 2. Constitutions establish values and goals. The leading to a great loss of life or, in other words, drafters of constitutions seek to imbue them human insecurity, where many lost their lives with a set of unifying values and an ideological through violence. In this instance, the constitution INTERVENTION SALAH OMAR/AFP

Eritrean men and women did not ensure human security to the many thou- or single documents passed by the decision-mak- line up separately at the sands of people resident in America. What then is ing bodies located in independent states. Qulsa refugee camp near the use of the American Constitution? In this In his book, States and Power in Africa, Herbst the eastern Sudanese instance, where there was a great loss of life, one argues that in order to understand the nature of the town of Kassala. could see the constitution at work in determining contemporary African state - and, I would argue, the the responses of the various divisions within the constitutional shortcomings - the creation of that American government, as provided for by the con- state needs to be understood. In pre-colonial Africa, stitution. In terms of the constitution, the American leaders were constrained in their ability to broadcast president was constrained in how he could respond power. Likewise, during the colonial period, leaders to the attack. Congress, for example, had to were constrained in their ability to broadcast power approve the president’s plan to pursue those beyond the cities and valuable economic assets due responsible. Moreover, it had to approve the fund- to the prohibitive costs involved. ing for any military operations organised in pursuit Similarly, at the time of independence, African of the perpetrators. In other words, the constitution leaders accepted colonial boundaries and often imposed various constraints on the president, as colonially designed constitutions, which were sim- well as the executive arm of government, in the way ply ineffective in ensuring human security. they could respond to the attacks. In this way, the Another factor which needs to be considered at constitution assisted in ensuring that no unwar- the time of independence was the nature of the ranted reprisals took place, which could have state. What occurred at that time was that ‘empiri- unnecessarily jeopardised human security. cal statehood’ was eclipsed and a ‘new form of juridical statehood based on a rights-model of Constitutions, constitutionalism and international relations’ became the dominant form human security in the African con- of statehood in Africa. African leaders have been text constrained in expanding their authority due to the high costs involved, as well as the relative poverty In the African context, constitutions have many of many African states. Herbst concludes that origins - it is suggested that all communities, African leaders were able to arrange a system that stretching as far back as pre-colonial society, had reinforced their own biases, which enabled them to constitutions. The constitutions in pre-colonial retain state systems that the colonial powers had society consisted of a set of accepted norms and demarcated. As a corollary to this lack of authority values, which were seldom written down, but which throughout the geographic region of the state, and enabled those societies to organise themselves and despite having constitutional orders, the provisions provide human security for their members. In of those constitutions were not enforceable African colonial and post-colonial society, consti- throughout the state. The abrogation of human tutions took on more of a formal format. They were security was often a casualty of this state of affairs. contained in several written documents which took Moreover, many African states have become ‘soft’ the form of orders in council, single legislative acts and, in some instances, have collapsed.

40 INTERVENTION

Since the late 1980s, the process by which con- process and the role of local and regional organisa- stitutions have been drafted has increasingly come tions in constitution drafting, it is perhaps oppor- under the attention of scholars (for example, tune to look afresh at the constitutional models Ihonvbere) and practitioners in the field. The gen- currently at the disposal of constitution drafters. eral thrust of their argument is that constitutions There are two main constitutional forms avail- must be drafted through a bottom-up process. In able - a unitary model or a federal model. Virtually other words, civil society must be involved in the all the states in Africa have adopted the unitary process. Constitutions should evolve through the model, with the notable exception being Nigeria, participation of civil society in order to ensure that which is federal. Others, like South Africa and the final product enjoys legitimacy in the eyes of Namibia, do have federal characteristics written the residents of that country - as Mbaku argues, it into their constitutions. In order to address the should become a self-enforcing document which, problem of an authority’s reach and influence, although seldom spelled out, should provide for decentralised unitary constitutional forms and fed- human security. It is argued that the mere existence eral constitutional forms should be re-examined. of a constitution within a state will do little to create The delegation of power to lower tiers of govern- a stable environment for democracy and develop- ment could bring power closer to people who may ment. People need to know and understand its pro- exercise it in the interests of human security. In visions, have faith in their respective governments addition, the nature of the electoral system that they will not overrule it, and believe that their designed could have a profound effect on the work- rights, as promulgated within it, will be upheld. ings of the political system, as well as the nature of Since the 1990s, the process of constitution conflict within a society. Proportional representa- drafting has been the focus of international organi- tion systems can assist in promoting human secu- sations and the British Commonwealth. In 1995, rity by giving minorities a voice in legislatures, as the heads of government adopted a Commonwealth opposed to the winner takes all, first-past-the-post Plan of Action in Millbrook, New Zealand. The electoral system. plan will promote fundamental commonwealth Perhaps within the African context, the time political values and sustainable development. It has come to consider supra-national federal consti- will also facilitate consensus-building. In addition, tutional arrangements to cover regions of the conti- the Commonwealth heads of government promised nent and address international issues. to assist in constitutional and legal matters, includ- Constitutions and constitutionalism are important ing the selection of models and the initiation of devices in promoting human security. However, as programmes aimed at democratisation. The Centre seen elsewhere in the world, they are not sufficient for Democracy and Development is attempting to to ensure human security. Be that as it may, they further this process through its vigorous publishing are vitally important in attempting to assure human process and conference organisation, in order to security for all. promote the idea of constitutionalism in Africa. It EndnoteEndnote is also addressing the role of regional organisations in drafting constitutions. * Dr Clive J Napier: Department of Political Sciences, University However, within the African context, constitu- of South Africa (UNISA) tions seldom function optimally. There are a num- References ber of reasons for their shortcomings. Some of them Fayemi, J.K. Paper undated. Promoting a Culture of were inherited or simply exported from Europe - Constitutionalism and Democracy in the Commonwealth. they did not enjoy legitimacy in the eyes of the cit- London: Centre for Democracy and Development. izens of their respective countries. Herbst, J. (2000). States and Power in Africa. Princeton: New Jersey. There are many tasks, processes and constitu- Heywood, A. (1997). Politics. London: Macmillan. tional designs which need to be considered in Ihonvbere, J.O. (1999). Constitutionalism and democratisation reconstituting and reconfiguring the African state in Africa. Paper presented at the consultation on Participatory in order to achieve human security. Constitution-Making, organised by the Commonwealth Human Rights Initiative, Pretoria. 16-17 August. Conclusion Mbaku, J.M. (1998). Constitutional Engineering and the Transition to Democracy in Post-cold War Africa. The There is much that needs to be done in most parts Independent Review. Vol 11. No. 4. of Africa to promote the idea of a constitution, con- The Constitution of the Republic of South Africa, 1996. stitutionalism and human security. Besides the

41 PEDRO UGARTE/AFP

To ensure success, a series of reforms within the administration, judiciary and military spheres of government will need to be undertaken

BURUNDI BY SAGREN NAIDOO

challenges for

transitional government

he Burundian transitional government cabinet comprising 26 portfolios, 14 of which will which was sworn in on 1 November 2001, be allocated to Hutu political parties and the marks a turning point in the country’s troubled remaining 12 to Tutsis. In addition, communal and Thistory, and serves as the best opportunity to council-level elections are expected to be held by end the conflict between the Hutu majority and the end of the first half of the transition, with sena- Tutsi minority. The new administration is essen- torial elections envisaged to take place during the tially a three-year, power-sharing mechanism that second half. Immediately thereafter, the national is designed to bring peace to Burundi, following an assembly and senate are expected to convene to eight-year civil war that has claimed more than elect the first president for the post-transitional 200,000 lives. phase of the government. The transitional government was set up in terms of the Arusha Accord, which was signed in Challenges ahead August 2000. It makes provision for cabinet posts However, for the transitional government to to be split between Hutus and Tutsis; for the estab- achieve the full confidence and support of all lishment of an ethnically-balanced defence force; Burundians, a series of reforms within the adminis- and for a general election to be held after the three- tration, judiciary and military spheres of govern- year transition period. Accordingly, the transitional ment will need to be undertaken. Moreover, mech- administration - which will be led by President anisms to root out and solve the problems that led Pierre Buyoya for the first 18 months - will have a to the conflict, would also have to be put in place.

42 BURUNDI

For this to happen, the transitional government exposed long-running divisions within the rebels intends to seek the United Nations Security and has split the movement into two camps: those Council’s (UNSC) assistance in creating an inter- that favour the retention of Ndayikengurukiye, and national judicial commission of inquiry into geno- those that are opposed to his leadership. The latter cide, war crimes and crimes against humanity, as group, led by Pierre Nkurunziza, claim that well as a national truth and reconciliation commis- Ndayikengurukiye’s sacking will speed up the sion. For its part, the former military government of peace process. Ndayikengurukiye has rejected Buyoya will have to ensure that allegations of ceasefire negotiations with the Burundi govern- human rights violations by its own armed forces, ment. Meanwhile, Nkurunziza’s faction supports are investigated impartially and independently. such talks, under the auspices of Gabon’s president, Prior to this action being taken, the transitional Omar Bongo, and the South African deputy-presi- government and state institutions need to rehabili- dent, Jacob Zuma. However, Nkurunziza’s faction tate the victims of war; they need to reintegrate wants an immediate end to abuses and gross human returning refugees and internally displaced per- rights violations by the Burundian army; an end to sons into society; and they need to rebuild the the activity of army death squads; an assurance of country’s infrastructure which was destroyed dur- the freedom of speech; and the empowerment of the ing the eight-year civil war. poorest of the population by, for example, paying However, even with the establishment of a peasant coffee farmers market prices for their power-sharing transitional government, several crops. These demands have been largely supported obstacles still stand in the way of achieving peace. by the Burundi League of Human Rights (ITEKA). These include the continued armed activities of the In the meantime, the transitional government has Hutu rebels, who refuse to support the deal; the no clear FDD leader or representative with whom it opposition of some radical Tutsi groups to the could negotiate a ceasefire. power-sharing arrangement; and the resistance of The FDD and FNL were essentially military some parts of the Tutsi dominated army to undergo wings of the National Council for the Defence of an integration process. Democracy (CNDD) and the Party for the At the top of the list of priorities for Burundi’s Liberation of Hutu People (PALIPEHUTU), transitional government is the need to protect its respectively. However, relations became strained citizens and secure a permanent ceasefire. Just four amongst them. Given that the CNDD and days after the inauguration of the new administra- PALIPEHUTU are political parties which are sig- tion, an ambush - reportedly by Hutu rebels - natories to the Arusha Accord, as well as members claimed the lives of four soldiers from the of the transitional cabinet, it is interesting to note Burundian armed forces. The two main Hutu rebel that they have been unable to influence the rebels groups - the Forces for the Defence of Democracy to implement a ceasefire. There are two reasons for (FDD) and the National Liberation Forces (FNL) - this. Firstly, the political organs - the CNDD and are not party to the Arusha Accord. Hence, they are PALIPEHUTU - viewed the military wings as not bound by the transitional arrangements. Simply rivals, and insisted on their exclusion from the put, there is no ceasefire to help build and keep the negotiations. The initial mediator, former badly needed peace. Indeed, it is unprecedented Tanzanian president, Julius Nyerere, excluded that the installation of a transitional government has these groups from the talks. However, with taken place while the war continues. Given the mil- increased insurgencies, the current mediator, for- itarisation of the ethnic extremism that Burundi mer president Nelson Mandela, insisted on their experiences, perhaps the implementation of the inclusion. Hence, the political wings do not have transitional government would serve as a confi- the required influence to persuade the FDD and dence-building measure in order for the rebels to FNL to put down their guns. participate in political negotiations. Secondly, even if the CNDD and PALIPEHUTU could influence the rebels, they are Confronting factionalism and ethnic unlikely to do so. Burundi’s first democratically extremism elected Hutu president, Melchior Ndadaye, was Moreover, the speedy achievement of a ceasefire is from the Front for the Democracy of Burundi also being frustrated by factionalism within the (FRODEBU) party. Many Hutu politicians see the FDD. The recent replacement of Jean-Bosco assassination of Ndadaye as the result of Ndayikengurukiye as leader of the FDD has FRODEBU not having a military wing of its own.

43 BURUNDI PEDRO UGARTE/AFP

Consequently, it was unable to control the safety convince G5 and radical Tutsis in the army that the Malawi's president Bakili Muluzi talks to the press and security of the then government of Burundi. present dispensation is not a threat to them. Therefore, current Hutu parties in Bujumbura feel under heavy security as A ‘delicate’ mission he arrives to Bujumbura, it is better to have some kind of military support if Burundi 31 October 2001 things also had to go wrong this time. In the meantime, South African troops have been to participate in the inau- The other problem that the transitional govern- deployed to Bujumbura in line with a UNSC reso- guration of the transi- ment faces is to convince the radical Tutsis groups lution that was formulated to protect Hutu politi- tional goverment. which are rejecting the transitional government, to cians who were returning from exile to participate rethink their position in the interests of peace and in the transitional government. The challenges fac- development for all Burundians. Uprona’s recent ing sustainable peace in Burundi warrant atten- protest against the protection of returning Hutu tion. The South African National Defence Force exiles, signals their rejection of any dialogue and (SANDF) deployment in the Democratic Republic negotiation for a peaceful political settlement dur- of Congo (DRC) - as part of the UN Observer ing the country’s transition, as well as the eventual Mission (MONUC) - returned to South Africa with- sharing of power. Recently the group of five (G5) out any major incident. In the past three years, the Tutsi-dominated political parties threatened to DRC - Africa’s third largest country, which consists boycott the transitional government, unless of predominantly impenetrable terrain - has been President Buyoya altered the allocation of ministe- the battlefield for a war of unprecedented propor- rial posts to the opposition umbrella of pro-Hutu tions and complexity. It is, however, the deploy- parties known as the G7. At the same time, the ment of the protection force in Burundi that faces extremist Tutsi group, Parena, has been excluded the greatest challenge. from any cabinet positions. The consequences of Burundi, which is arguably 50 times smaller them being outside the process are clearly stark. than the DRC (and with easily accessible terrain), Given that the minority Tutsis have dominated has been engulfed by a conflict that has raged Burundi’s politics, military and economy for most mainly between two groups: the Tutsi minority and of the country’s 39 years of independence from the Hutu majority ñ unlike the multitude of bel- Belgium colonialism, the transitional government - ligerents involved in the DRC conflict. This does and ultimately President Buyoya - would have to not suggest that the two conflicts should be looked

44 BURUNDI at in isolation. Burundi is very much part of the where linkages are based on strategic alliances, con- DRC conflict, as well as the crisis affecting the flict resolution options need to be systematically Great Lakes region. So why would keeping peace pursued. Burundi might not find peace, if other in Burundi be a greater effort - if not a battle - for countries in the Great Lakes region which are the South African troops, as compared with the engulfed with conflict, do not find peace themselves. DRC conflict? Key decisions affecting Burundi are likely to Firstly, the situation on the ground is still very be made in the DRC, Zimbabwe and, to some precarious. As South African troops landed in this extent, Angola, due to the alliance between these tiny central African country, clashes between Hutu countries and the main Burundi Hutu rebels. rebel movements and troops of the Tutsi govern- However, Rwanda also has a major role to play in ment continued. Secondly, extremist groups on Burundi’s transition. Rwanda will not accept a both sides of the conflict have publicly rejected the peace process in Burundi which could ultimately deployment of South African troops. The call by threatens its own security. The peace processes in the extremist Tutsi group, Uprona, to fight South Burundi and the DRC, while having specific objec- African troops, was indeed very worrisome, partic- tives, are also processes that provide suitable pre- ularly given that Uprona is Buyoya’s party. At the scriptions for other neighbouring states which are same time there is a perception that the majority of pursuing a resolution to conflict. Rwanda, despite the FDD and FNL do not see South Africa as being its tribunal for the genocidaire, is lagging behind in neutral. fostering a peace process that is built on dialogue Thirdly, in spite of assurances from the facilita- and negotiations, and which is aimed at the politi- tor of the peace process, former president Nelson cal resolution of conflict. Just as there is the Mandela, that the Burundian army is committed to Lusaka Agreement for the DRC, and the Arusha the transitional process, the army remains a con- Accord for Burundi, Rwanda also needs to put in cern for peace and security. An army constituted place similar transparent mechanisms that would with a proportionate number of Tutsi and Hutu sol- help create a more inclusive and durable political diers is expected to answer to a civilian leadership. system. Perhaps a reviving of the Arusha However, given that there have been two coup Agreement, which was signed before the 1994 attempts during this year alone, one is compelled to genocide, needs to be seriously considered. question the standing of the army. Regardless of the In the meantime, South Africa should seek - intentions under a new order, if a coup-induced bat- together with the international community - to cre- tle was to unfold, the consequences could be disas- ate incentives and sanctions in order to encourage trous not only for all Burundians, but also for the all warring parties within the Great Lakes region to South African troops. Given that an exit strategy for participate in dialogue aimed at the political settle- the SANDF is based on the full implementation of a ment of disputes. This could lead to a new and sus- transitional government during the next three years, tainable regional security compact. Given the lim- the South African deployment would be forced to ited resources, as well as the need to prioritise, the remain in Burundi until peace was secured. temptation may arise for South Africa to focus on Nevertheless, the deployment of South African just one crisis, while ignoring the rest. This strat- troops to Burundi signalled Pretoria’s determina- egy could prove counter-productive, given that the tion to pursue a vigorous leadership role in conflict conflicts are intertwined. Pretoria must use the resolution on the continent. It is also a recognition Rwanda-South Africa Joint Cooperation that war and conflict are detrimental to the success Commission to be more assertive with regard to the of the New Africa Partnership for Development need for dialogue in Rwanda. If conflict explodes (Nepad), previously known as The New Africa in Rwanda, South Africa may find great difficulty Initiative (NAI). in reacting, thereby paying a significant price to assert its regional leadership. Regional dynamics However, a resolution of the Burundi conflict also EndnoteEndnote needs to take place within the context of a peace process for the entire Great Lakes region. Africa’s * Sagaren Naidoo ia a researcher at the Institute for Global Great Lakes constitute a conflict zone that is central Dialogue. to an ‘arc of crisis’, which stretches from Angola to the Sudan. In a vortex of inter-linked conflicts,

45 46 PEDRO UGARTE/AFP PEDRO

The SANDF contingent has been man- dated to protect about 150 Burundian political leaders, who have returned from exile to participate in the country’s power- sharing transitional government

BY THEO NEETHLING BURUNDI

deployment of

to Burundi

n 26 October 2001, the South were drawn from a number of SANDF units, and African and Burundian govern- included paratroopers from the 44th Parachute ments signed a Memorandum of Brigade; medical orderlies from the SA Military OUnderstanding in Pretoria, which paved Health Service; VIP protection units from the SA the way for the Department of Defence to deploy Air Force; and signalers from Wonderboom SA National Defence Force (SANDF) troops to Military Base. Headquarters personnel was made Burundi. On the morning of Sunday, 28 October up of troops from the 43rd SA Brigade. 2001, the first group of about 234 troops left the The SANDF contingent has been mandated to Waterkloof Air Force Base under the command of protect about 150 Burundian political leaders, who Brigadier-General Steven Kobe, general com- have returned from exile to participate in the coun- manding officer of the 43rd South African Brigade. try’s power-sharing transitional government, which Later the same day they arrived in Burundi’s lake- was instated on 1 November 2001. How long the SA side capital, Bujumbura. contingent will provide its services to Burundi is A second group of 236 troops left from the said to be subject to negotiation and discussion with same base on 30 October 2001, and a third group the transitional government. However, it is expected of about 231 troops left four days later. The troops to remain there for a period of six months, with a (all armed and dressed in South African uniform) rotation of troops thereafter, if required. The possi- PEDRO UGARTE/AFP South African soldiers disembark 30 October 2001 at Bujumbura airport to protect exiled politicians returning to 47 take part in a transitional government BURUNDI

ble involvement of other troops (specifically troops rules of engagement or parameters for peacekeep- from Nigeria, Ghana and Senegal) could also affect ing, as it usually does in such cases. this time frame. Earlier, the chief of the SANDF, To this end, it could be argued that the SANDF General Siphiwe Nyanda, stated that troops would presence in Burundi should not be perceived as, or remain in Burundi until the transitional government mistaken for, an international peacekeeping force felt secure and the training of ‘ethnically balanced operating under the auspices of the UN in accor- Burundian troops’ (in other words, a new Burundian dance with the White Paper on South African multi-ethnic army) was completed. Participation in International Peace Missions. Unlike typical UN peacekeeping practice - where UN endorsement and international soldiers from various contributory nations wear the involvement distinctive blue berets of the UN - the SANDF con- Earlier, opposition spokepersons in South Africa tingent does not appear to be part of a ‘blue helmet’ were quick to state that they supported the deploy- operation. In this context, the SANDF contingent - ment to Burundi, but were concerned by the clad in their green and brown uniforms with a ‘uncertain legal basis of the SANDF mission’. South African flag shoulder patch - is the only Concern was also expressed about the fact that the force deployed in Bujumbura which is supported deployment was instructed prior to securing parlia- by its own armoured vehicles and unarmed Oryx ment’s approval. Many commentators specifically helicopters. questioned the international mandate of the mis- Thus, it must be made clear that this is (at the sion. In view of this, it should be noted that the time of writing) a South African ‘protection force’, president of the United Nations Security Council which has a specific responsibility pertaining to the (UNSC) issued the following statement on 26 start of a three-year peace plan aimed at ending September 2001: Burundi’s lengthly civil war. Moreover, funding has ‘The Security Council calls on the Burundian not been provided by the UN. Apparently, it is sup- parties to reach agreement swiftly on the posed to be provided by the European Union (EU) establishment of a special protection unit and Belgium. This should be taken into considera- entrusted solely with the police function of tion when criticism is raised in connection with providing personal security for politicians international sanction for the mission. However, as returning from exile. ...[The UN] urges the far as domestic (parliamentary) approval is con- international community to provide, on an cerned, it may be argued that parliament’s involve- urgent basis, support for the training and ment in and sanction of operations of this kind is deployment of this special protection unit.’ always desirable and expedient. South Africa’s decision to enter Burundi on a On Monday, 29 October 2001, the UNSC unani- unilateral basis could be regarded as somewhat mously adopted a resolution to back the creation of risky, and even precarious. It should be made clear a temporary international security force for that coalition operations are now the usual form of Burundi. It also endorsed the efforts of South military activity throughout the world: almost every Africa, and other countries, to implement the major conflict and peacekeeping operation during Arusha peace agreement, which was signed by the last decade has involved combined forces. By Burundi’s warring factions in August 2000. The the same token, in today’s world the unilateral use UNSC reaffirmed its strong support for the estab- of force by any state generally verges on the lishment of a transitional government, and urged unthinkable. In this regard, the security of the international donors to honour the pledges they emergent multilateral international state systems is made at a Paris conference in December 2000. reliant on general concepts of legitimacy, which Against this background, it is clear that the UN are increasingly preserved and applied by coali- did endorse the deployment of a ‘protection force’ to tion operations. Operations, such as the one in Burundi in order to protect the leaders of belliger- Burundi, are fraught with risks, where peacekeep- ent groups, who were returning from exile to estab- ing troops come under violent attack or face armed lish a transitional government facilitated by Nelson resistance. Severe problems may arise where third- Mandela. At the same time, it should be remem- party intervention is not underpinned by multina- bered that the UN did not mandate the deployment tional or UN involvement. of a typical international force under the command Be that as it may, at the time of writing, it of a UN-appointed officer. Nor did the UN issue any appeared that the South African government made

48 BURUNDI the right decision, and that it was under some the SANDF’s deployment to Burundi as ‘the coun- degree of pressure to respond positively to Nelson try’s first post-apartheid peacekeeping military Mandela’s request to deploy a protection force to operation outside its borders’. However, it should be war-torn Burundi. Considering the difficulties nor- made clear that the SANDF is currently contribut- mally associated with rapid deployment during ing to peacekeeping efforts in no less than three peacekeeping operations of this nature, the SANDF African conflicts. Consequently, the SANDF is now should be commended for its swift response. actually building on the foundation of its experience in two African conflicts during the last year. Building a foundation of peace- Towards the end of the year 2000, an announce- keeping experience ment was made that South African officers would Until recently, some observers have argued that be deployed as military liaison officers in order to South Africa’s contribution to the African debate on facilitate the peace process between Ethiopia and peacekeeping has been fairly limited, due to the Eritrea. Consequently, a number of SANDF officers Burundian soldiers fact that the country was still relatively inexperi- have since been deployed to the UN Mission in escort the motorcade of enced in the field of peacekeeping. In addition, Ethiopia and Eritrea (UNMEE), as well as the Malawi's president there was a perceived reluctance to deploy troops in Organisation of African Unity Liaison Mission in Bakili Mulizi in conflict situations. Also, the country’s involvement Ethiopia/Eritrea (OLMEE). Bujumbura, Burundi 31 in peacekeeping since the end of 2000, has been so In a more significant announcement on 23 October 2001 unobtrusive that some foreign observers described March 2001, the South African Minister of PEDRO UGARTE/AFP

49 BURUNDI

Defence, Mr Mosiuoa Lekota, stated that in com- war that ignited a humanitarian crisis largely pliance with international obligations to the UN, ignored by the international community. One can South Africa would contribute elements of spe- even say that the relaxed start to the SANDF cialised units to the UN Organisation Mission in deployment masked some of the risks to the sol- the Democratic Republic of Congo (MONUC). This diers involved - nestling in a ring of green hills by announcement represents a historical develop- the gleaming waters of Lake Tanganyika, sleepy ment, in the sense that it paved the way for the Bujumbura did not show any signs of a capital SANDF’s first substantial contribution ñ of a crippled by a bitter conflict between the majority specifically human resources nature ñ to an inter- ethnic Hutus and the minority Tutsis. national peace mission. Shortly after the Nonetheless, the installation of a broad-based, announcement of South Africa’s involvement in legitimate government in Burundi should be seen MONUC, 96 members of the SANDF were as imperative in order for peace to prevail in the deployed to the DRC as staff officers in various Great Lakes region. In addition, the SANDF’s specialised roles, such as air cargo handling; air involvement may well prove to be an important cat- disaster rescue; medical evacuation; and command alyst in finding the way to a negotiated settlement. and support tasks. The ideal scenario would be for the SANDF It should be said that South Africa’s contribu- involvement to lead to the deployment of a strong tions to the above-mentioned missions could, by no and competent multinational peacekeeping force means, be considered as substantial. Furthermore, after a ceasefire is negotiated. In fact, if there was it has been decided that South Africa will only con- any realistic possibility that the SANDF’s operation tribute a number of (unarmed) military observers to could pave the way for broader African involvement UNMEE, as well as a few military liaison officers to - as well as the deployment of a peacekeeping force OLMEE. Also, at the time of writing, no officers under the auspices of the UN - this would certainly had been deployed in combat or peace enforce- be worth the risk. Many people (mostly civilians) ment roles as far as MONUC was concerned. have died during the civil war. If this operation Therefore, it is fairly significant that the South could help police the transition to a new dispensa- African force in Burundi has been armed, and that tion, it would certainly be to the credit of the South Africa has now entered a phase where its SANDF and South Africa’s political-military ability. armed forces are playing more than just a support- It would also be a testament to South Africa’s will- ive role in the efforts to broker a peace in one of ingness to join in the cause for peace, democracy Africa’s most intractable conflicts. and a better future for all in Africa.

Conclusion Endnote To embark on third-party intervention generally involves risks and uncertainty. Moreover, many * Dr. Theo Neethling is with the Centre for Military Studies ( current conflicts involve civilian and identity dis- Gauteng Branch) of the University of Stellenbosch putes, which are characterised by several features References and challenges that make negotiated settlements Aggestam, K. (2001). Mediating asymmetric conflict: The case extremely difficult to achieve. In a recent study on of Israeli-Palestinian Negotiations. Paper presented at the conflict management, it was contended that only Fourth Pan-European International Relations Conference, Canterbury, United Kingdom, 8-10 September 2001. 15% of civil and identity conflicts ended in negoti- Eismond, M. (2001). S.African Peacekeepers arrive in war- ated settlements - only one-third of them last for torn Burundi. Reuters, 28 October. Internet site. http://dai- more than five years. This points to the immense lynews.yahoo.com/h/nm/20011028/wl/safrica_burundi_dc_ difficulties of consolidating peace and ensuring 4.html. compliance in such cases. IRIN news. Burundi. UN Security Council endorses security force. Internet site. Burundi’s post-independence history is UN Security Council. (2001). Statement by the president of scarred by a series of horrific massacres. Its bitter the UNSC, 26 September. ethnic divide mirrors that of neighbouring Wa ka Ngobeni, E. & Mthembu-Salter, G. (2001). Under pres- Rwanda, where UN peacekeepers found them- sure to protect. Mail & Guardian, 2-8 November. selves caught in the 1994 genocide, after a peace Munusamy, R. (2001). SA Troops head for war-torn Burundi. deal dismally collapsed. Also, the South Africans Sunday Times, 28 October. in Burundi have seen little of the war that has killed an estimated 200,000 people since 1993 ñ a

50 FABRICE COFFRINI/AFP FABRICE

The practical reasons which have created a need to re-establish the Gacaca jurisdictions in Rwanda

BY PAUL E. NANTULYA RWANDA the

in Rwanda

he 1994 genocide in Rwanda was the culmi- killings of Tutsi individuals, as well as anyone nation of earlier genocides and massacres, else who resisted this call; which occurred in 1959, 1963, 1964, 1973, • Community disintegration and suspicion 1990, 1992 and 1993. The organised killings between the Hutu, Tutsi and Twa communities, Twhich took place in Rwanda during the abovemen- due to divisive policies and a state ideology tioned periods, were the result of numerous factors, which sought to categorise these communities including the following: as ethnically and racially distinct, despite the • Harsh colonial policies which sought to divide fact that they all share one ethnicity, one lan- Rwandans along ethnic and racial lines; guage and a common heritage as Banyarwanda. • Discriminatory and sectarian policies pursued These factors (among others) have created an by immediate post-independence govern- atmosphere of disunity, revenge and mistrust. ments, which reinforced the divisions created Following a series of reflective meetings held during the colonial period; between 1998 and 1999, Rwandans now feel a • A culture of impunity and violence, which had need to eradicate these negative feelings in order to been created by successive governments that prevent this destructive cycle from ever repeating had actively and publicly promoted the itself1. The complexity of the situation has also had

51 RWANDA PASCAL GUYOT/AFP

A 15 year-old Rwandan (R), stands with other a direct impact on the administration of classical tion, both of which have been systematically prisoners at the Kigali justice in Rwanda. Some of the practical problems cultivated for several years; prison. the boy, like in this regard are identified as follows: • The legal complexities surrounding classical most of the 80 000 pris- • A weak judicial sector, resulting from wide- justice, which makes it difficult for ordinary oners held at the jail of spread destruction, both before and during the people to participate, and for community heal- the capital, is accused of genocide; ing to occur; taking part in the 1994 • The administrative strain created by the pres- • The non-reconciliatory nature of the classical genocide which left at least 500 000 dead ence of more than 135,000 inmates who have justice system, which does not holistically or not yet been tried, and the presence of several organically address the rehabilitation of con- other suspects who have not yet been brought victs or the fundamental causes of the geno- to justice; cide. Consequently, the securing of convic- • The weaknesses of the classical justice system tions does not automatically translate into the in addressing the psychological aspects of the eradication of a culture of impunity - some- genocide, which has a lot to do with negative thing which was at the source of the 1994 mass mobilisation and ideological manipula- genocide, as well as others in Rwanda.

52 RWANDA

Reflections on the Gacaca system of justice, and its ancestors, consulted the same spirit mediums and incorporation into the draft constitution, are based were drawn into the mysteries of Ryangombe on the need to address these practical limitations. (loosely translated as God) together, without dis- The central unifying concern is that beyond the tinction. In matters of politics, the king (known as classical justice system there is a need to facilitate Sebantu or the father of all people) symbolised a a process of community reconciliation and healing, sense of unity and belonging, and symbolically held which could form the basis for long-term social all of Rwanda’s offerings on behalf of all people harmony and stability within Rwanda. (known in Kinyarwanda as Nyamugirubutangwa). Furthermore, ordinary Rwandan people must be Beneath him, existed three main tiers of govern- involved in bringing about this unity through a sys- mental organisation: the chieftaincy of war, which tem of customary laws, principles and procedures, oversaw defence affairs; the chieftaincy of pasture, which is part of their ancient heritage, and which which handled pastoral, grazing and cattle breeding continued to be practised in different ways even activities; and the chieftaincy of land, which over- after the colonial and post-independence phase. saw matters concerning farmers and their land. True to their occupational nature, the chiefs of pas- The Unity of Rwandans as a Basis ture and land were predominantly Tutsi and Hutu, for Gacaca Jurisdictions respectively. However, historical accounts show Before a discussion on the Gacaca system can be that in northern Rwanda, 80% of the chiefs were attempted, there is a need to briefly discuss the Hutu. In terms of housing, Rwandans lived together ingredients which shaped the unity of the Rwandan in all regions of the country, and intermarriages people before and after colonial penetration into the took place without discrimination. A girl, irrespec- Great Lakes region. Prior to colonisation, Rwandan tive of her clan, was known as Gahuzamiryango society was cemented together through a complex (one who brings families closer), and also partici- system of clans, language, culture, religion, kin- pated in the Gacaca system even after marriage. ship, governmental organisation and housing. There were no zones specifically reserved for any All Rwandans, Hutu, Tutsi and Twa shared 18 community. In fact, in Kinyarwanda, there is a say- clans: the Abasinga; Abasindi; Abazigaba; ing that ‘neighbours give birth to children who look Abagesera; Ababanda; Abanyiginya; Abega; like each other’. As in other African societies, the Abacyaba; Abungura; Abashambo; Abatsobe; Rwandans practised blood vows, which also cut Abakono (meaning hands); Abaha; Abashingo; across their occupational status. A blood vow was Abanyakarama; Abasita; Abongera; and the taken when two people drank each other’s blood to Abenengwe. These 18 clans brought all Rwandans demonstrate their commitment as friends. This act together, and were not based on any distinctions. committed them to a lifetime bond as family mem- The fact that Hutu, Tutsi and Twa belonged to the bers, irrespective of whether or not they were same clans created a sense of national identity, related. The acts of friendship and solidarity which, irrespective of one’s occupational status. expressed themselves through rites, are known in It ought to be stressed that being a Hutu, Tutsi Kinyarwanda as Ubuse. and Twa did not involve an ethnic connotation; The emergence of Gacaca jurisdictions in rather, it reflected an occupational identity. While Rwanda was facilitated by a sense of unity, which a Tutsi made a living from pastoralism, a Hutu had prevailed among Rwandans during this period. lived on agriculture. The Twa survived through pot- It constituted the basic customary code which was tery, and hunting and gathering. Historical applied throughout the territory via a system of accounts suggest that a Tutsi who lost his cattle due chiefs and chieftaincies. It was composed of courts to disease (or any other reason) was counted among which settled conflicts arising between families or the Hutu, while a Hutu who gained cattle for any communities, and which may have been based on reason was counted as a Tutsi. Consequently, there domestic concerns such as violence, theft, destruc- was a system of social mobility between these tion of property and separation between a man and occupational strata. Historical accounts also sug- his wife, as well as other smaller matters. gest that Rwandans identified more with their The community participated in the courts and clans than with their occupational status. punishments were collectively imposed on persons In addition to sharing clans, all Rwandans found guilty of any offence. In addition to collec- shared common rites, crafts, dances, taboos, divina- tive punishments, the community also performed tions and medicines. They worshipped the same welcoming rites for persons who had completed

53 RWANDA

their punishments. This was done to create a sense rights commission; the unity and reconciliation of belonging within the community. Serious commission; and the constitutional commission - offences were brought before the chief of the vil- will be outlined once the system starts to operate. lage, and the most serious ones were brought However, it goes without saying that a natural rela- before the king. During the colonial period, Gacaca tionship already exists between these institutions. constituted the basic code for customary law in For one, they have all participated in discussions Rwanda. Classical justice was later established by on the Gacaca system, and secondly, it is likely the colonisers. However, in several cases, modern that the Gacaca jurisdictions would draw from the courts reverted to the Gacaca system when investi- capacity of these institutions from time to time. gating certain offences. Thirdly, human rights training is also likely to be conducted for the various jurisdictions. The legal and constitutional basis for Gacaca in the current frame- Functioning of the Gacaca work Jurisdictions The organic law identifies the following categories As we have already briefly discussed, the practical of offenders: need to introduce Gacaca jurisdictions is based on Category 1: the following factors: Offenders in this category are tried according to • The need for community involvement in the the organic law. Any confessions within this cat- justice process; egory do not reduce their penalty. This category • The need to capitalise on the unity of mainly deals with organisers of the genocide. Rwandans; Category 2: • The need to respond to the psychological This category mainly deals with those who may aspects of the genocide, which the classical not have been involved in the planning of the justice system is not structured to address; genocide, but who participated in it. • The need to create a basis for future reconcili- Confessions in this category reduce the sen- ation; tence from life imprisonment to between 12 • The need to ease administrative strains on the and 15 years, eight of which are spent in classical judicial system. prison. The remaining years are then spent The reintroduction of Gacaca in Rwanda has been among the general population, where involve- supported by modifications to the following legal ment in community service is a requirement. instruments: Category 3: • Organic Law No8 of 30/08/1996, which pro- Under this category, offenders serve a sentence vides for prosecutions for the crime of geno- provided for under the organic law. However, cide, as well as other crimes against humanity; they complete one half of the sentence in • The Fundamental Law of the Republic: the prison, and the other half among the general Arusha Peace Agreement of 1993; population, performing community service. • Law Decree No09/90 of 07/07/1980, which Category 4: refers to the organisation and jurisdictional Category four mainly deals with crimes such as competence of the courts; banditry, theft, looting and pillaging which • Law Decree No21/77 of 18/08/1977, which were committed during the genocide, but relates to the establishment of the penal code. which do not fall within the definition of A new organic law governing Gacaca jurisdictions, crimes against humanity, as spelt out in the as well as the law that established the supreme organic law. Offenders are fined and integrated court, also supports it. In brief, Gacaca does not back into the community. seek to replace the existing judicial system. The Gacaca system will operate from the cell Rather, it aims to support it in order to compensate to prefecture levels, and will be functional for its weaknesses. For the moment, the legal throughout the country. At each tier, the instruments which provide for the functioning of Gacaca jurisdictions will be composed of a Gacaca jurisdictions limit themselves to instituting general assembly, which will be made up of 50 the system at different administrative levels within inhabitants; a Gacaca jurisdiction, which will the country. Their relationship to other organs be made up of 20 people elected by the gen- which support democracy - such as the human eral assembly; and the coordinating commit-

54 RWANDA

tee, which will be made up of five people unity of Rwandans was based prior to colonial pen- elected by the members of the Gacaca juris- etration, and has also attempted to demonstrate dictions. The coordinating committee will, in that it was on the basis of this unity, that the tradi- turn, elect a chairman and a secretary for a tional Gacaca system was developed. It has looked one-year renewable mandate. at the different categories of offences, as defined The general assembly will supervise the activi- under the organic law on genocide, and has shown ties of the Gacaca jurisdictions, which will be how the different levels of Gacaca jurisdictions will convened at least twice a week. The three core handle them. institutions - the general assembly, the Gacaca As is the case with institutions of this nature, jurisdiction and the coordinating committee - the Gacaca system is still evolving according to the will replicate themselves at the four levels of practical needs and limitations facing the country. administration throughout Rwanda - namely the It is bound to have its difficulties. Resource con- cell, sector, commune and prefecture levels. straints, coupled with the enormous challenge of The duties of the responsible Gacaca jurisdic- training a national cadre capable of manning these tion are briefly outlined as follows: jurisdictions at a national level, are, at best, Cell Jurisdictions: unprecedented in Africa’s constitutional and judi- • Drawing up lists of victims and perpetrators of cial history. This momentous national task exists violations at the cell level; against the background of a judicial strain, in • Receiving accusations and testimonies; which more than 135,000 people have still not • Carrying out investigations; been tried. In addition, hundreds - if not thousands • The carrying out of trials and sentencing for per- - of others have not yet been brought to justice. sons accused of offences in the fourth category; To add to these challenges, Rwanda also has to • Forwarding case files to the sector jurisdiction respond to other demands, including those of edu- for those accused of offences in the first, sec- cation, poverty eradication and HIV/Aids, as well ond and third categories. as the social disruptions which have been caused Sector Jurisdictions: by years of negative policies. • Receiving case files from the cell level; From the outset, we have argued that the • Placing the accused persons into categories; Gacaca system is one of the instruments which • Forwarding case files to the cell level for per- Rwanda has chosen to use in order to respond to sons accused in the fourth category; immediate capacity needs, as well as the more long- • The carrying out of trials and sentencing for per- term psychosocial need for reconciliation and unity. sons accused of offences in the third category. It would reinforce the classical justice system; it Commune Jurisdictions: would not replace it. Gacaca is a system rooted in • The carrying out of trials and sentencing for per- Rwanda’s traditions. It takes advantage of Rwandan sons accused of offences in the second category; culture and it capitalises on the unity of Rwandans. • Forwarding case files to the Office of the It also gives the Rwandan people the opportunity to Public Prosecutor for persons accused of take part in shaping their country. Indeed, the offences in the first category; Gacaca system is restorative, in the sense that it • Forwarding cases of appeal to the prefecture seeks to facilitate a process of community reintegra- level. tion - something which is seen as key to addressing Prefecture Jurisdictions: the fundamental causes of the genocide. While • Receiving appeals from the commune level; remaining aware of the merits and demerits, and • The controlling and coordinating of commune pros and cons, this unique judicial experiment cer- jurisdiction activities. tainly deserves to be mentioned as an important contribution to the African Renaissance. Conclusions This short essay has attempted to identify the prac- Endnote tical reasons which have created a need to re- establish the Gacaca jurisdictions in Rwanda. It * Paul E. Nantulya is currently head of the Constitutionalism also briefly mentioned some of the legal instru- Programme at ACCORD 1 Report on Reflection Meetings organised by the Government ments and modifications which have given it a of Rwanda, from May 1998 to March. legal, as well as a constitutional, character. It has given a summary of the factors around which the

55 BOOK REVIEW BY MOTSE RAMATHE For the sake of Peace: Seven Paths to Global Harmony, a Buddhist Perspective By Daisaku Ikeda, Published by - Middleway, 2001. Santa Monica

As a Buddhist leader, educator and philosopher, be achieved. Key to this is the promotion of a cul- Daisaku Ikeda has written extensively on the sub- ture of peace, which would focus on balancing and ject of world peace. In his latest book, For the sake redressing the arrogant imperialist assumption that of Peace, Daisaku Ikeda confirms the individual’s has insinuated itself into the Western cultural out- responsibility in bringing peace to the world. He look. It denies any attempt to judge one culture by argues that world peace can be achieved through the values of another, or rank them according to self-control, dialogue and the creation of a culture some hierarchical scheme. Chapter six stresses the of peace. fact that there is little the UN could do in terms of The author claims that the twentieth century building peace within the world. Establishing brought shame to the human race. Millions died world peace depends on how eager and willing we due to unnecessary wars, the global environment are as individuals, as members of civil society and has been grievously damaged, and the gap between as members of religious organisations (and so on) the rich and the poor seems to be ever widening. In to engage and listen to those who are different from the first chapter, the author cites the following as us. In chapter seven, the author proposes the con- the main reasons for conflict in the world: isola- cept of a new cosmology to help solve some of the tionism; greed; poverty; environmental irresponsi- world’s challenges (poverty, population growth and bility; nuclear negativity; and the illusion of effi- environmental destruction). Such a cosmology ciency. In chapter two, the author highlights the would destroy our false inorganic connections - responsibility that we, as humans, have in normal- especially those related to money - and re-estab- ising the situation in order to bring about world lish our organic connection with the cosmos and peace. This, he believes, can be done by being the sun, as well as earth’s connection with renewed internally. Such a renewal means being mankind, nations and basic family units. able to transcend the differences between good In the last chapter, the author looks at how and evil, love and hate, and so on. However, the much our basic right to life has been threatened by big question is what will bring about such a change the existence of nuclear weapons (and other arma- in character? ments), and most importantly, by the unwillingness In chapter three, the author maintains that the of nations to stop the production of such weapons. seed for peace does not lie in ideas, but in human He goes on to argue that the exchange of ideas understanding and empathy between ordinary peo- between top leaders is the best way to eliminate ple - this can only be achieved through constructive the deep-rooted distrust that exists among nations. dialogue. It is only in an open space created by dia- In the long-term, removing this distrust could indi- logue - whether conducted with our neighbours or rectly lead to disarmament, thereby serving as a between states - that attitudes are changed. Hate key to achieving global peace. changes to love; ugliness changes to beauty; and Dialogue between conflicting parties is starting stereotypes and prejudice change to tolerance and to bear more positive results, particularly when acceptance. Chapter four highlights the impact that one studies the conflicts where this technique has certain people (particularly those who are devoted been used. We are more optimistic than ever to dialogue and self-mastery) have on the values before about the outcome of both the DRC and underlying current systems of politics, economics, Burundi conflicts. This is because people have education, religion and culture. This automatically chosen to sit down and educate each other about changes the way people view competition. The the effects that such conflicts have on different whole notion of ëdoing to others as you would have nations. Any person who has wondered whether he them do unto you’ is established. or she could make a difference, should read this Chapter five provides some useful insights on book - it is inspiring how transformation in the new millennium could

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