Mamdani is wrong, it’s not impunity that heals but justice

During a debate recently held at Kenyatta University, Prof Mahmood Mamdani spoke on the topic, “Can Courts End Civil Wars?” The main thrust of his argument was that during or in the immediate wake of conflict, criminal prosecutions should play no role in efforts to reconstruct society. I attended the debate and disagreed with Mamdani. I later set out my reasons in this opinion piece carried in the current issue of The East African.

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During a debate recently held at Kenyatta University, Prof Mahmood Mamdani spoke on the topic, “Can Courts End Civil Wars?” The main thrust of his argument was that during or in the immediate wake of conflict, criminal prosecutions should play no role in efforts to reconstruct society.

He argued that criminal violence should not be conflated with political violence because the latter has a constituency. He further stated that prosecuting perpetrators in the wake of political atrocities would exacerbate rather than solve the problem because political violence is not just driven by perpetrators, but by issues.

In light of recent and ongoing experience in many African countries where gross human-rights violations continue to be committed in the guise of contestation for political power, Prof Mamdani’s thesis is disturbing.

It comes dangerously close to giving political elites a blank cheque to commit atrocities against their own people and avoid accountability by claiming a political motive for their criminal activities.

While we must concede that criminal trials cannot by themselves end civil war, Prof Mamdani errs by going to the opposite extreme in suggesting that politics alone should take centrestage.

“The rule of law requires a stable political order,” he asserted during the debate, adding that politics always trumps the law in post-conflict societies.

However, the role of criminal prosecutions and accountability in the immediate aftermath of conflict cannot be gainsaid.

Empirical evidence shows that where there is no accountability for atrocity crimes, they are likely to recur. At the end of the decade-long Sierra Leone civil war, for instance, the first peace agreement signed in Lome in 1999 provided for a blanket amnesty for all actors in the conflict, but it was not long before vicious fighting broke out once again.

The government of Sierra Leone then requested the United Nations to facilitate the setting up of a Special Court to prosecute those most responsible for the atrocities.

The court indicted several high-level actors including rebel leader Foday Sankoh, who subsequently died in custody while undergoing trial, and former Liberian president Charles Taylor, who is currently serving a 50-year jail sentence for his crimes during the civil war.

Criminal prosecution of perpetrators was a key variable that contributed significantly to the ending of the Sierra Leone conflict and its transition to democracy.

Criminal accountability also helps a society to restore the rule of law and affirms the human rights of victims, thereby helping to reinstate the social contract and to send a clear message to victims that the state is able and willing to protect them.

Underlying most atrocity crimes is a narrative of dehumanising and disenfranchising of “the other.” Criminal accountability sends a clear message that all citizens are equal members of the polity deserving of equal protection from the law and not mere objects to be sacrificed at the altar of the search for political dominance.

Where victims’ needs for justice are left unaddressed, victim communities themselves become vulnerable to mobilisation by warlords to seek revenge against what they consider enemy communities.

However, isolating and prosecuting individual perpetrators individualises guilt and stops the cycle of communal violence.

The struggle for political stability in most post-conflict societies beginning in Latin America in the late 1970s and sweeping through Eastern Europe, Asia and Africa especially after the end of the Cold War has given rise to a new field of human rights termed transitional justice.

It refers to the set of judicial and non-judicial measures that have been implemented by different countries in order to redress the legacies of massive human-rights violation.

These measures include prosecuting those responsible for human-rights abuses; establishing the truth about the nature of the violations; delivering reparations to victims; and implementing institutional reforms to change those institutions that aggravated or caused the conflict and creating new ones to promote human rights. 

None of these measures is sufficient in and of itself. Transitional justice mechanisms must be implemented in a comprehensive, mutually supportive and carefully sequenced manner.

But where crimes against humanity, genocide, war crimes and other gross violations of human rights have been committed, perpetrators must be held criminally accountable, no matter what the motive for their actions or the constituency that they purport to act for.

Njonjo Mue is a human-rights lawyer and a programme adviser to Kenyans for Peace, Truth and Justice

See article at this link: http://www.theeastafrican.co.ke/OpEd/comment/Mamdani-is-wrong--it-s-not-impunity-that-heals-but-justice/-/434750/2226690/-/item/1/-/129q54oz/-/index.html