ICTJ Program Report: Africa

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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