On 28 January 2009, before a packed courtroom in The Hague, the Prosecution of the International Criminal Court (ICC) called its first ever witness, a young man from Ituri district in north-eastern Democratic Republic of Congo (DRC). For the ICC and its supporters this represented the moment the seven-year-old Court truly arrived – when the dream of building a permanent global institution to prosecute genocide, war crimes and crimes against humanity became a reality.

The young man, testifying under the pseudonym ‘Mr Witness’, stated that he had been recruited as a child soldier when the forces of rebel leader Thomas Lubanga abducted him on his way home from school. Shortly afterwards he attended a military training camp run by Lubanga, who now sat in a crisp three-piece suit, listening intently on the other side of the courtroom. Leading up to the trial, critics questioned why the Prosecution had only charged Lubanga with the crimes of enlisting and conscripting child soldiers, and using them to participate actively in hostilities, when communities in Ituri accused him of orchestrating much graver atrocities, including mass murder and rape. The Prosecution responded that the charges reflected the strongest evidence it had gathered against Lubanga and a vital opportunity to spotlight the global scourge of using child soldiers.

When Mr Witness returned after the lunch break, he stunned the courtroom by announcing that he wished to retract his entire testimony. A Congolese non-governmental organisation the Prosecution had tasked with finding witnesses for the Lubanga case had, he stated, told him what to say on the stand. Everything he had claimed in the morning was false.

Outraged, Lubanga’s defence team asked the judges for a permanent stay of proceedings – in effect, a collapse of the trial – on the grounds that if the Prosecution’s star witness had been coached, all of its evidence was likely to be tainted. Perhaps realising the institutional perils of ending the ICC’s first ever trial when it had barely begun, and mindful it had already been stayed the previous year, the judges ordered the case should continue, but not before issuing a stark warning to the Prosecution about the quality of its investigations.

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Ten years later and with ICC cases currently open in eight African states, most of the problems apparent in the Lubanga case – including the Prosecution’s outsourcing of investigations to local intermediaries and the weakness of much of its evidence – continue to bedevil the Court. Only five of the ICC’s 28 cases have been completed; five have collapsed either before or during trial for lack of evidence. The remaining 18 cases have not progressed because of insufficient evidence, the failure of states and international peacekeeping missions to capture and transfer suspects to The Hague, or the death of suspects on the battlefield.

No serving head of state or government official has ever been prosecuted by the ICC. By 2016, the Prosecution had dropped charges against all suspects in cases relating to the 2007-8 post-election violence in Kenya, including those against President Uhuru Kenyatta and Deputy President William Ruto; and all cases concerning Sudan, including that of President Omar al-Bashir, have been ‘hibernated’. After 17 years of the ICC’s work, one of the most telling realisations is that – without a police or military force of its own and reliant on states for the security of its personnel and enforcement of arrest warrants – the Court is structurally incapable of prosecuting sitting members of government. It is, in effect, only able to tackle crimes by non-state actors such as rebel leaders or recently deposed government elites.

Even strong supporters of the ICC such as the United Kingdom have started to question whether the US$1.7 billion the Court has received from member states since its inauguration has been money well spent.¹ Its track record and the causes of its failure call into question whether the ICC, headquartered in The Netherlands, is fit for purpose in investigating and prosecuting complex atrocity cases in far-flung parts of the world.

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In my book Distant Justice: The Impact of the International Criminal Court on African Politics,² I argue that the principal reason the ICC has struggled to conduct effective investigations is that its modus operandi – attempting to dispense justice from The Hague, with mainly non-African staff who have limited experience in Africa and spend minimal time on the ground – is consistently found wanting when applied to African conflict zones. The ICC pursues distant justice because it believes this maintains the security and neutrality of its personnel, allowing the Court to hover above the political fray, investigating and prosecuting individuals regardless of the domestic consequences or local context. This smacks of political naiveté or hubris or both.

To date, neither the ICC Prosecution – nor the Defence – have hired a single investigator from any of the eight African states where investigations have taken place. Foreign nationals are perceived as more impartial. This practice has denied the ICC the domestic expertise essential to investigating atrocities in difficult environments where conflict is often ongoing. Without deep knowledge of local causes and agents of violence, political networks, languages and cultures, ICC investigators have struggled to gather evidence that can withstand scrutiny in the courtroom.

Compounding the lack of contextual familiarity at the ICC, the Prosecution has typically limited its investigators to only ten days in the field at a time and often divided their time between multiple cases across a number of states. Several investigators – seasoned professionals in their native Western countries – have complained that these conditions made the systematic conduct of their work almost impossible. ‘We probably didn’t know enough about these countries when we went in – how politics worked, how to get governments to work with us, what their concerns were, what they were trying to achieve,’ recalled one. ‘How many of us had ever been to Ituri or northern Uganda before our investigations started?…There’s no question it would have helped to know more before we went in.’³

These shortcomings in the ICC’s approach contributed directly to the acquittal of the ICC’s two highest-profile suspects to reach the dock, former Congolese rebel leader and vice-president Jean-Pierre Bemba and former president of Côte d’Ivoire Laurent Gbagbo. The judges who in June 2018 acquitted Bemba on appeal ruled that the Prosecution had provided only abstract evidence – much of it gathered from secondary sources rather than first-hand investigations on the ground – to show that Bemba, according to the theory of command responsibility, had failed to prevent his troops from carrying out rape, murder and pillage in the Central African Republic (CAR).

In January 2019, seven years after issuing a warrant for Gbagbo’s arrest for crimes against humanity during the 2010-11 post-election violence in Côte d’Ivoire, which claimed 3,000 lives,⁴ the ICC judges ruled that he and his youth minister Charles Blé Goudé had no case to answer. As the only former head of state to have been prosecuted by the ICC, Gbagbo’s acquittal is the biggest blow to the Court since its inauguration.

The damage to the ICC’s standing isn’t in the acquittal of Gbagbo per se: the role of a court is to convict or acquit based on the evidence presented. What condemns the Prosecution and the ICC as a whole are the flawed investigative practices and poor-quality evidence that led to the decision there was no case to answer. As the judges highlighted,⁵ the Prosecution failed to prove several key allegations against Gbagbo, including that he had an explicit policy of targeting civilians and that his public speeches contained direct orders to carry out atrocities. This failure conformed to a long-standing tendency of the Prosecution – dropping investigators into conflict environments for short periods – to present broad-brush evidence about atrocities, without the meticulous proof necessary to link those crimes incontrovertibly to the accused.

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The impact of the ICC’s distant approach goes far beyond its difficulty in building sound criminal cases. Altogether more concerning are the negative consequences of its methods for the African societies in which the Court carries out investigations. The ICC has unwittingly established relations with African governments, local populations and national judiciaries that are damaging. It has also undermined domestic responses to mass atrocity that include amnesties for high-level perpetrators. Collectively, these relations highlight that distant justice makes the ICC unaccountable to conflict-affected communities and blind to the consequences on the ground.

First, lacking the necessary expertise in domestic political dynamics, the ICC has left itself open to interference and manipulation by African governments whose motivations and tactics the Court often doesn’t fully grasp. Seeking to distance itself from the political arena and thus remain impartial, the ICC has instead become more politicised. Relations with some African states have been antagonistic. The Sudanese and Kenyan governments, for example, systematically blocked the ICC’s investigations by denying ICC investigators access to crime sites, allegedly killing and threatening witnesses and refusing to hand over evidence. All the while, they rallied domestic and continental support by defeating what President Bashir – after the ICC called a halt to investigations into crimes in Darfur – branded the ICC’s ‘colonial’ justice designed to ‘humiliate’ African leaders.⁶

More often, the ICC has naively cultivated overly cosy working relations, especially with states that have referred situations to the Court; for example, Uganda, the DRC, CAR and Mali. Heavily dependent on state cooperation, the ICC has conducted investigations in lock-step with domestic governments, including travelling to crime scenes with members of the national army and police.

In Uganda and the DRC, close relations stemmed from the fact that the ICC chased cases in those countries, approaching the respective presidents to encourage them to refer their situations to the Court. During pre-referral negotiations, the ICC Prosecution assured the Ugandan and Congolese governments that it would focus only on rebel leaders and not state actors. This not only ensured impunity for widespread government atrocities during the same period, but emboldened these states. During all national elections in Uganda and the DRC since the launch of ICC investigations in central Africa in 2004, both states have brazenly and routinely committed crimes against civilians.

The ICC’s failure to address state criminality is a key reason the Court has scant legitimacy among conflict-affected communities across Africa. During more than a decade of field research I have conducted in northern Uganda and eastern DRC,⁷ interviewees emphasised the gravity of atrocities committed by their governments and their anger at the ICC’s neglect of these crimes. In northern Uganda, state violations have included forced displacement, murder, rape, torture and failure to protect the population from attacks by Lord’s Resistance Army (LRA) rebels. Many respondents argued that such actions violate the social contract between the state and its citizens. ‘We expect the government to protect us,’ said Michael, a 42-year-old man in the Pabbo camp for internally displaced persons in Acholiland, northern Uganda, who had lost his wife and two children to LRA violence.

Not only have they failed to protect us, they have murdered us…People start screaming when they know the LRA is coming but the UPDF [Ugandan People’s Defence Force, the Ugandan army] does nothing. It does nothing to stop the rebels and it violates us. Soldiers always come into the camp at night. They rape our women and girls and abduct the men they say collaborate with the rebels.⁸

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Local respondents criticised the ICC’s model of delivering justice from afar, lacking local presence and accountability to affected communities. The intimacy of conflict – in which many victims know their assailants personally and are likely to live side by side with them once violence subsides and they return to their communities – underscores a widespread need for victims and perpetrators to confront one another directly. This would enable them to deliver and receive apologies, and to engage in a dialogue about the crimes committed. ‘We need to bring the fighters together with the victims,’ said Patience, a 48-year-old victim of LRA attacks in the northern Ugandan district of Amuru. ‘They should apologise to the victims and ask their forgiveness. Only when that happens will we know that they won’t go back to the bush and continue the killing.’

In many interviews, the desire for direct engagement between victims and perpetrators – as opposed to their separation when the ICC holds trials in The Hague – extends equally to senior government and rebel leaders. ‘[Joseph] Kony and [Ugandan president Yoweri] Museveni should come here to Gulu,’ said Henry, an Acholi shop owner. ‘They should stand in front of all of us, apologise and ask for forgiveness.’

Meanwhile, the ICC has undermined national judiciaries in Africa by claiming jurisdiction over cases that could have been – and sometimes were already being – investigated by domestic courts. This conduct undermines the ICC’s own principle of complementarity enshrined in the Rome Statute, which stresses the primary responsibility of states to prosecute crimes committed by their nationals or on their territory. Instead, the Court has often intervened even when local courts have displayed a genuine willingness and ability to handle atrocity cases on the basis that its distance confers impartiality likely to be lacking in domestic institutions.

Judicial personnel in Ituri, in north-eastern DRC, were furious that rebel leaders Lubanga, Germain Katanga and Mathieu Ngudjolo, were whisked off to the ICC between 2006 and 2008 when their cases were still being investigated domestically. Under a US$40 million European Commission-funded judicial reform process begun in 2003, national military courts in Ituri successfully prosecuted a string of high-ranking members of the Congolese army and several rebel groups. Discussing the near-collapse of the Lubanga trial mentioned at the start of this Counterpoint, one Congolese investigator in Ituri said, ‘The ICC stole these cases from us and has done a worse job. What was the point of sending these suspects to The Hague, to face a lower standard of justice?’9 The ICC’s intervention in the DRC demoralised a domestic judiciary that has benefited from substantial internationally backed reform and will continue prosecuting atrocity cases long after the ICC has departed.

More broadly, the ICC’s distant justice has diminished the capacity of African policymakers and local communities to determine, on their own terms, how best to address mass conflict. Options available include domestic prosecutions, local reconciliation rituals or amnesty-based approaches such as peace negotiations, truth commissions, security sector reform or disarmament, demobilisation and reintegration of combatants.

During the 2006-8 peace talks between the Ugandan government and the LRA in Juba, in southern Sudan, the ICC’s issuance of arrest warrants for the top five LRA commanders was the principal stumbling block to reaching a resolution. The Juba process was consumed by debates over how to drop the warrants or pause the ICC investigations for one year renewable – permissible under the ICC’s Statute – and thereby enable the peace talks to proceed. The ICC and its international backers rejected these options, insisting that the pursuit of justice was essential to achieving sustainable peace.

One of the consequences of the ICC’s intransigence was that none of the LRA commanders would come to the negotiating table in Juba, fearing arrest and transfer to The Hague. The ICC also inhibited the substantive flexibility that is vital to any successful peace process, by thwarting the possible offer of an amnesty for the LRA leadership, to which they were entitled at the time under Ugandan law. This denied the negotiators one of the major incentives for the LRA to lay down its arms.

As one senior negotiator in Juba observed, ‘Imagine if South Africa wanted to use the Truth and Reconciliation Commission today and offered an amnesty [for high-ranking suspects from the apartheid era] the way it did after 1994. The ICC wouldn’t allow it. And without amnesty, the transition would’ve collapsed and then where would we be?’.¹⁰ Various issues contributed to the ultimate collapse of the Juba talks in 2008 before a comprehensive peace agreement between the Ugandan government and the LRA could be signed, but the shadow of the ICC was a telling factor.

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Major reform of the ICC is urgently needed if it is to become fit for purpose. A vital first move is to transform the profile of the Court’s personnel. The intricacies of the settings where the ICC intervenes require deep contextual expertise. Ivorian investigators should be hired to investigate crimes in Côte d’Ivoire, and Ivorian country experts – rather than legal generalists – to advise on how to navigate difficult political and social terrain. This approach would improve the quality of investigations, while assisting the ICC to develop more even-handed and productive state co-operation than the overly cosy relations developed with the governments of Uganda and the DRC.

The ICC must also increase its presence in the communities where it operates. This requires allowing investigators to spend more time on the ground and holding trials closer to atrocity sites, rather than in The Hague. This would make the Court’s work more visible and approachable for local communities, help build trust and encourage more local witnesses to assist the Court’s investigations – issues that have hamstrung the ICC since its inception.

More fundamentally, though, the ICC and international policymakers must afford domestic actors more latitude to address atrocities by whichever means they deem appropriate.

International prosecutions of a small number of elite suspects constitute only one response to mass violence – and, as highlighted in this Counterpoint, an often flawed and damaging one at that. There should therefore be no inherent impediment to Uganda, for example, deciding to use a conditional amnesty or community-based rituals to address the crimes of Kony and other LRA commanders – as some northern Ugandan civil society groups advocated during the Juba peace talks – if affected communities deem these the most appropriate way of ensuring accountability and pursuing reconciliation. As I argued in a 2012 Counterpoint,¹¹ while Rwanda’s decision to use the community-based gacaca system to prosecute 400,000 genocide suspects was roundly criticised by international legal and human rights commentators, the system delivered widespread and durable benefits for Rwandan society.

The ICC and its backers have paid insufficient attention to the diverse ways that mass crimes are being addressed across Africa. In various African states, a brighter future for justice is emerging at community, national and regional levels. Depending on the context, these practices need either international support or freedom from external intrusion to maximise their potential. A key reason the ICC was established was the expectation that domestic institutions would often be unwilling or unable to prosecute serious crimes, especially those involving their own state officials. African courts, however, are increasingly tackling atrocity cases – including against government suspects – and have much to teach the ICC about how to investigate atrocities on the continent.

The example of the Ituri courts shows that strategic investment in domestic judicial reform can enable national courts to prosecute complex cases in courtrooms accessible to victims and other groups directly affected by violence. Elsewhere in the DRC, in South Kivu and Maniema provinces, a system of mobile gender units between 2009 and 2012 prosecuted 382 cases of sexual violence, many involving high-ranking suspects in the Congolese army. These units were a creative collaboration between international specialists from the American Bar Association and US-based Open Society Justice Initiative, and Congolese judges, lawyers and investigators. Like gacaca, they held open-air trials in full view of local communities. The process involved ‘light touch’ international assistance that bolstered the independence of domestic actors.

Similar reforms have enabled the Rwandan national courts to handle numerous cases since 2008 concerning high-profile genocide suspects extradited from abroad. In 2014, the Constitutional Court in South Africa ruled that the South African police force was legally obliged to investigate Zimbabwean officials accused of torturing opponents of Robert Mugabe’s regime. The Southern African Litigation Centre and the Zimbabwean Exiles Forum successfully argued that South Africa has an obligation to prosecute these international crimes, having implemented the ICC Statute within domestic law.

Meanwhile, in 2016 the Extraordinary African Chambers in Senegal convicted former Chadian dictator Hissène Habré of crimes committed in Chad between 1982 and 1990.¹² All four investigating judges in the Chambers were African: the president of the court was from Burkina Faso and the three remaining judges were Senegalese. Chad and the African Union provided more than half of the tribunal’s budget, with the balance provided by international donors. The South Africa and Senegal cases highlight that, if some African states are unwilling to address serious crimes committed on their soil, other African states may intervene to do so. Under the principle of universal jurisdiction, the Habré trial was the first in the world in which one country prosecuted the former head of state of another. After the collapse of the Gbagbo case, the ICC was undoubtedly envious of the Chambers’ success.

The DRC, Rwanda, South Africa and Senegal examples show that external support for African courts can yield a more robust and accessible form of accountability than the distant justice delivered by the ICC. None of these legal processes – local or international – is perfect. However, domestic institutions have inherent advantages over international approaches, such as that taken by the distant ICC – namely, their visibility among affected communities and their longevity. The Court therefore needs to rethink its own practices, while ensuring it does no harm to competent domestic institutions. Equally, international donors and policymakers must recognise that more lasting and cost-effective results can be achieved by backing African remedies to violent conflict. While international justice has dominated external debates about addressing mass crimes in Africa over the past 20 years, the future is local.

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17 July 1998 – Rome Statute of the ICC created and signed
11 April 2002 – Deposit of 60th ratification of the Rome Statute necessary for the ICC to be established
1 July 2002 – Rome Statute comes into force
11 March 2003 – First ICC judges sworn in
16 June 2003 – Luis Moreno Ocampo sworn in as inaugural Chief Prosecutor of the ICC
29 January 2004 – ICC receives first referral of a situation from the Republic of Uganda
23 June 2004 – Opening of first ever ICC investigations in Uganda
29 June 2004 – Opening of ICC investigations in the Democratic Republic of Congo (DRC)
December 2004 – Government of Central African Republic (CAR) refers situation to the ICC
17 March 2006 – Congolese rebel leader Thomas Lubanga becomes first suspect arrested and transferred to the ICC
May 2007 – Investigations commence in CAR situation
3 July 2008 – Transfer of Jean-Pierre Bemba, former Vice-President of the DRC, to the ICC
14 July 2008 – ICC prosecutor issues arrest warrant for Omar al-Bashir, President of Sudan
26 January 2009 – Opening of first trial in the case of Thomas Lubanga
8 March 2011 – ICC issues summonses for Kenya’s President Uhuru Kenyatta and Deputy President William Ruto
14 March 2012 – Thomas Lubanga becomes first individual convicted by the ICC
15 June 2012 – Fatou Bensouda sworn in as the second Chief Prosecutor of the ICC
27 January 2016 – ICC opens first non-African situation in the conflict between Georgia and Russia
8 June 2018 – ICC appeals chamber acquits Jean-Pierre Bemba on all charges
15 January 2019 – ICC trial chamber acquits former Ivorian President Laurent Gbagbo

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Nigeria is a highly litigious society. In Lagos State alone, over 30,000 new civil cases are filed each year.¹ Many claimants have to wait a decade for a verdict, which may then be subject to an appeal. It was not always thus. The modern court system is based on an imported model, introduced by the British. Before the colonial period, the various peoples that inhabit present-day Nigeria practised customary dispute resolution, elements of which are immediately recognisable to the lawyers of today. What is now termed alternative dispute resolution (ADR) embraces three distinct strands: negotiation, mediation and arbitration.²

Negotiation is a natural recourse for two individuals seeking to settle differences through discussion. Should this fail, disputants might approach an independent third party. Historically, in what is now Nigeria, this might have been a local elder or traditional authority, such as a king, emir, oba, obi or eze. Alternatively, it may have been a group of elders with a specific and recognised function in the community, or a council of chiefs.

Mediation sees the third party encouraging disputants to compromise in pursuit of a mutually agreed outcome. The participatory nature of the mediation process enables disputants to exercise a degree of control over the settlement, rather than having a decision imposed on them. In many cases, this makes for a “win-win” arrangement, and thus a durable resolution of the conflict.

Arbitration involves the third party conducting a simplified trial, hearing evidence presented by the disputants (or a family member representing them). Traditionally, this procedure was inquisitorial, with questions posed by the “judge”, rather than accusatorial, whereby arguments are advanced by advocates of the court (as under English law).³ Considering local customs and relevant precedents, the third party would withdraw to deliberate and eventually issue a verdict.

Under both arbitration and mediation, the focus of the neutral party was to resolve the dispute over and above punishing malfeasance. T.O. Elias, who would later serve as Nigeria’s first attorney-general and as chief justice of the Supreme Court, characterised the “African judge as a peace-maker anxious to effect a reconciliation.”⁴ If compensation was awarded or agreed to, a ceremonial reconciliation of the parties would often follow its payment. Igbos, Nigeria’s third-largest ethnic group, traditionally brought palm wine and oil beans to share with the aggrieved party.⁵ According to law professor Nonso Okereafoezeke, reconciliation is the “central pivot of Nigeria’s native justice systems”.⁶

 

Land issues have been the cause of much violent conflict throughout Kenya’s colonial and post-colonial history. In 2009, a National Land Policy was approved by parliament. The following year, land policy was embedded in a new constitution widely regarded as being radical – and potentially transformative. The culmination of a decade of often fierce debate and civil society activism, these events were described as “two significant achievements [that] have inserted the interests of ordinary Kenyans into this constitutional moment in a way that elections and constitutional ratification alone would not have”.²

The 2010 Constitution of Kenya addressed longstanding grievances over land, including the centralised, corrupt and inefficient system of administration identified in a series of reports of inquiry during the 2000s. Article 40 (1) sets out the principles governing land policy. These include equitable access; security of land rights; sustainable and productive management of land resources; transparent and cost effective administration; and elimination of gender discrimination in law, customs, and practice related to land and property. The process of translating these principles into law was widely seen as an opportunity to redress Kenya’s grossly skewed structure of land management and end predatory land practices by the state. It was one of the first, and certainly one of the most important, tests of the new constitution.

Despite the backdrop of optimism and anticipation, the drafting of the land law bills was characterised by undue haste, opacity and a lack of genuine consultation and debate. Indeed the final stage of the reform process can easily be interpreted as a last ditch attempt by certain parties to stymie it, subvert the intentions of the National Land Policy and renege on the promises of the constitution. The draft land bills were flawed, weak and seemed to be almost entirely disconnected from their guiding documents.

Parliamentarians failed to grasp the enormity, gravity and urgency of the task of land reform

In the run-up to the first and second reading of the bills in the National Assembly in February 2012, legal scholar Kithure Kindiki and others drew attention to incoherent drafting in the new laws; widespread borrowing of the provisions of other African countries without due attention to their relevance or suitability for Kenya; the failure to identify misconduct that the laws needed to address; inconsistencies between the National Land Policy and the constitution; and the failure to specify in detail the functions of devolved land administration bodies. The land research group in which I participated, Kituo cha Sheria, co-ordinated by the Katiba (Constitution) Institute, criticised the inscrutability of the drafts and the absence of any useful explanation of what policies were being implemented, or how. “This,” Yash Pal Ghai warned in a foreword to Kituo cha Sheria’s submission to the Parliamentary Committee on Land and Natural Resources, “effectively prevents the participation of the people in law making required by the constitution”.³

Parliament neglected to scrutinise or amend the land bills adequately and disregarded its obligation to heed the contents of the land and environment chapter of the constitution. Like many others, parliamentarians failed to grasp the enormity, gravity and urgency of the task of land reform. In April 2012, the assent of the Land Act, the Land Registration Act and the National Land Commission Act marked continuity with the past and the basic tenets of neoliberal land policy, for example by promoting land markets, providing for the individualisation of land tenure, and enshrining in law a presumption against customary tenure. A “technicist” approach and what is perceived as international best practice was prioritised over addressing political realities and local context.

The central concern of the laws is bureaucratic power and its control. While they did offer citizens some means to challenge bad administrative practices and so perhaps retain access to land, they did not embody the prescriptions of the constitution and National Land Policy. They were neither equitable nor transformative of land relations, nor was the “deep” redistribution envisaged by the constitution and National Land Policy upheld. This failure cannot be dismissed lightly. One expert commentator observed that “upon the outcomes of these deliberations may well hinge the future stability as well as the democratic quality of the Kenyan state”.⁴

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Article 40 (1) of the Constitution of Kenya sets out the principles governing land policy and provides that “Land in Kenya shall be held, used and managed in a manner that is equitable, efficient, productive and sustainable”.Article 61 (1) states that “All land in Kenya belongs to the people of Kenya collectively as a nation, as communities and as individuals”.Article 40 protects private property rights; 40 (6) states that “The rights under this article do not extend to any property that is found to have been unlawfully acquired”.Article 68 (a) provides that Parliament shall revise, consolidate, and rationalise existing land laws. Article 68 (c) specifies areas for future legislation, including legislation to prescribe minimum and maximum private land holding; to regulate the manner in which land may be converted from one category to another; to “protect, conserve and provide access to all public land”; to protect the dependents of deceased persons with interest in any land, including spouses in occupation; and to provide “for any other matter necessary” to effect the land and environment requirements of the Constitution.

Abridged from Manji, Ambreena, “The Politics of Land Reform in Kenya 2012”, African Studies Review, Volume 57, Issue 1, April 2014, p.118

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Kenya’s recent experience exemplifies critical shortcomings of land reform processes throughout East Africa. Since the 1990s international financial institutions, donors and governments have embraced law reform as a means to address a range of land issues, with varying degrees of sincerity and commitment. In essence, land reform has been land law reform.

This approach was prompted by a rediscovery of the role that law might play in development. The emphasis on law is not new. In the 1960s, the “law and development” movement held that law reform could promote economic development in newly independent countries. Interest subsequently waned due to scepticism as to the merits of this argument. The recent revival of law in development policymaking, and in particular the focus on the centrality of the rule of law to development, has had a major impact on how land issues have been addressed. Law has played a key role in what has been labelled “new wave land reform in an era of neo-liberalism”:⁵ land reform in East Africa has taken place in an “intellectual climate which rediscovered the importance of law as a major contributory factor in the international community’s support and pressure for land law reform within countries in the region”.⁶

In essence, land reform has been land law reform

The renewed prominence of law as a proposed solution to land problems has supported the representation of land as a tradeable asset that can be used to leverage loans. Secure formal property rights and developed land markets are considered a desirable goal of international and national land policy advocated by the World Bank and other multilateral and bilateral donors. Such legal constructs are portrayed as prerequisites for economic growth, poverty reduction and establishing the rule of law in developing countries. The formalisation and monetisation of land tenure have gone hand-in-hand as part of a “market-friendly” approach to land described by pre-eminent scholar, advocate and practitioner Patrick McAuslan in an important paper published in 2001 as “the globalisation of land markets”.⁷ The formalisation of land title and access to credit are now intricately connected in development policy prescriptions.

David Kennedy, currently faculty director of the Institute for Global Law at Harvard Law School, has argued that there is an unarticulated hope among law and development practitioners and academics that working within a strictly legal framework can substitute for, and thus avoid confrontation with, “perplexing political and economic choices”. This has placed “law, legal institution building, the techniques of legal policy-making and implementation – the ‘rule of law’ broadly conceived – front and centre”. It has excluded, rather than encouraged, contestation over economic and political choices; and the hope that law might substitute for contestation “encourages people to settle on the legal choices embedded in one legal regime as if they were the only alternative”. The rule of law, according to Kennedy, “promises…a domain of expertise, a program for action, which obscures the need for distributional choices or for clarity about how distributing things one way rather than another will, in fact, lead to development”.⁸

This observation helps us to understand why and how, over the past two decades, East African nations have felt compelled to reconsider land tenure regimes, adopt new land policies, enact new land laws and introduce programmes to ensure their implementation.

 

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The consequences of a legalistic approach to land reform are starkly evident in Kenya’s new land laws. First and foremost, it foreclosed debates about redistribution, prioritising land law reform as the most effective way to address land problems and so evading more difficult questions about who controls access to land and how a more just distribution might be achieved.

A further consequence of the weight accorded to law as a means to resolve land issues is that amongst lawyers, civil society groups and scholars, it expedited a retreat into a technicist approach that ignored the wider political context and therefore missed an important opportunity for bringing about positive change. A constant rebuff deployed during public meetings of the Parliamentary Committee on Land and Natural Resources (the “Land Committee”) in Kenya was that the new land laws were highly technical and complex. Land law is complex, but this mantra, and severe time limitations, often seemed to be aimed at suppressing genuine debate and citizen participation.

Rather than challenging the retreat into technical legal responses, civil society groups largely accepted – and to some extent reinforced – this practice by assuming the role of mediator between the law and the people. This was mistaken. As Patrick McAuslan asserted, “to move from policy formulation to drafting laws is not, as some people assume, to move from a debate on policy to one on legal technicalities”. The technical is highly political. When ideas of equity and fairness come to be precisely defined, perceived winners and losers emerge. Objections and obstructions quickly arise. “These are not,” McAuslan continued, “objections on ‘policy grounds’ but on technical legal grounds; a particular clause ‘wouldn’t work’; a certain provision is ‘unnecessary’; another goes too far or is ‘impracticable’”.⁹

Acute distrust of bureaucratic power over land issues is widespread among Kenyans

Acute distrust of bureaucratic power over land issues is widespread among Kenyans. The allocation of public land in pursuit of patronage and profit has long been practised by successive presidents and their land commissioners. Civil society needed to wrest control of the debate from bureaucrats if the “intensely redistributive potential”¹⁰ of the National Land Policy and the constitution were to be realised. Instead, activists were distracted and mollified by the technical obfuscation that tends to be part and parcel of land law reform – and which typically reinforces the status quo.

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The deficiencies of undue confidence in strengthening the rule of law and technical fixes are abundantly clear in Kenya when one examines the history of “bureaucratic sabotage”¹¹ of land management and reform. The publication of the Report of the Commission of Inquiry into the Illegal/ Irregular Allocation of Land in Kenya (2004), widely known as the Ndung’u report after its chairperson, confirmed what Kenyans already knew: that land corruption was systematic and widespread. The commission found that at least 200,000 illegal titles to public land had been created between 1962 and 2002, 96% of them in the period 1986-2002, during the presidency of Daniel arap Moi. The categories of public land affected include forests, national parks and game reserves, wetlands, research farms, roads, government offices, settlement schemes, state corporation land and trust land. The Ndung’u report also showed how the constitutional requirement for public land to be administered “in the public interest” was consistently perverted by Presidents Jomo Kenyatta and Moi, public officials, members of the judiciary, well-connected politicians and businesses.To take urban land as an illustration, the commission found evidence of widespread abuse of presidential discretion with regard to unalienated urban land, that is to say public land legally available for allocation to schools, playgrounds and hospitals for the public good. Both presidents allocated land appropriated from landowners despite having no legal power to do so. Furthermore, the Ndung’u report also confirmed that a number of land commissioners had made direct grants of government land without any authority from the president. Often, land had been quickly sold by grantees at very high prices to third parties without any adherence to the conditions laid down by letters of allotment, which only have the status of letters of offer and cannot be sold. Far from being restrained by the principle of public purpose, successive land commissioners and many local authorities completely disregarded it and sold land reserved exclusively for public purposes. Forged letters and documents were commonly used. Records at the Ministry of Lands and Settlements were found to have been deliberately destroyed.The “juicy findings”¹² – the “what” – of the Ndung’u report attracted a great deal of attention. With a few notable exceptions, less was written about its exhaustive detail on the “how”: exactly how the law was routinely subverted and so much public land illegally or irregularly allocated for personal gain or political reward. Far from upholding the rule of law, the legal profession played a central role in land corruption for personal benefit, as did other professions. This is one of the most significant issues raised by the Ndung’u report, if not the most significant.

The legal profession played a central role in land corruption for personal benefit, as did other professions

The conduct of many Kenyan lawyers stands in stark contrast to the role of the legal profession envisaged and supported by donors – that of promoting good governance and the rule of law. Internationally-sponsored rule of law programmes are supposed to promote and embed a strict distinction between the professions and politics. The information about systemic professional misconduct and illegality revealed by the Ndung’u report should have rung far louder alarm bells internationally. It provided valuable lessons about the hazards implicit in translating the aspirations and promises of the National Land Policy and the constitution into law. Instead, the complicity of lawyers in the illegal and irregular allocation of land has been largely overlooked. Professional bodies have chosen to ignore the conduct of members in facilitating land corruption. To date, despite the findings and recommendations of the Ndung’u report, no investigations of professionals’ involvement or disciplinary action have been initiated.

When the legal framework governing the administration of Kenya’s land was reviewed, a key test that should have been applied was whether proposed changes in the law would have prevented the illegal and irregular allocations on the vast scale identified by the Ndung’u Commission. But the drafting, enactment and aftermath of Kenya’s new laws has facilitated “business as usual” for professionals who, screened by international and state endorsement of the technicist approach to land law reform, have sustained corruption for decades.

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National and local laws, collectively referred to as planning law, play a central role in shaping the economic, social and political life of towns and cities. They regulate land use and land development, provide a sound basis for infrastructure planning, secure the rights of investors, protect environmental resources and mitigate environmental risks. Crucially, planning law determines which buildings are legal and which are not.

Planning law has a poor record in Africa. Legislation designed to protect the public from the negative aspects of urban land development has all too often been used by the state to enhance the value of land owned by the wealthy – and to penalise and intimidate the disadvantaged. Laws to protect public spaces and facilities that enhance civic life are seldom implemented as intended. In a context of insecure and unpredictable land rights, planning law is a major fault line running through society.

Planning law is a major fault line running through society.

Planning law is meant to reflect and assert the public interest. This is not the reality in Africa. Land use is largely unregulated. Integrated infrastructure planning is rare. Private rights and interests are not mediated by a comprehensive legal framework.

Instead, dire living conditions, diabolical traffic jams, neglected infrastructure and dangerous public spaces are the norm. Urban management is notoriously erratic and fragmented, and the overwhelming majority of buildings are constructed in contravention of planning laws.

There are three principal indicators of failed planning law in urban centres:

• The predominance of illegal structures. For the majority of Africa’s urban dwellers the costs of complying with applicable planning, building and tenure laws are so out of kilter with their household incomes that legal compliance is unimaginable.
• The use of planning and building laws against vulnerable groups. Sudden crackdowns resulting in demolitions or evictions are commonplace. One of the best-known examples is Operation Murambatsvina, or “Drive Out the Rubbish”, carried out in Harare in 2005. The eviction of some 700,000 people in Zimbabwe’s capital and demolition of their homes was justified on the basis of the 1976 Town and Country Planning Act.
• Inviolate elites. Wealthy and powerful elites operate largely untroubled by planning laws. Any negative impacts on neighbours or the public interest are typically ignored. This culture of impunity has created the perception that there are two laws: one for the well-to-do and another for the rest.

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The founding fathers of the town and country movement in Europe and North America envisaged the law being used to constitute and control the resource of developable urban land – and to ensure that towns and cities developed in ways that maximised the public benefit. In Africa, however, planning law was unashamedly used by colonial regimes to assert the interests of a small minority over those of the majority. This situation has endured since independence, albeit with a different minority elite reaping the benefits.

The grip of colonial legislation on the mind-sets of policymakers and practitioners remains strong. Political elites and government officials see themselves and the legal framework as a bastion against informality, illegality – and ultimately anarchy. Planning law is deliberately wielded in an exclusive, not inclusive, manner.

Land that can be developed within the formal legal framework is a scarce commodity in most African cities. This scarcity keeps prices high, accessible only to a small pool of elite landowners and wealthy individuals. In this context, planning laws form part of a regulatory barrier that limits opportunities in formal land markets and exacerbates inequality.

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There is broad consensus that planning laws in Africa need to be changed. Laws designed to regulate urban development in Europe or North America in the early and mid 20th century are an inappropriate blueprint for contemporary Africa. Leading international urban development organisations including UN-Habitat, the World Bank and Cities Alliance are committed to legal reform.

For example, UN-Habitat reports have consistently called for the reform of planning laws as an “important precondition for more effective urban planning”. Although country after country has embarked on ambitious programmes of comprehensive legislative reform, consensus and concern have seldom been translated into successfully implemented new planning law.

A generally shared view is that reform should focus on cutting superfluous red tape and regulation. The objective of reducing the regulatory burden on weak systems with limited technical and financial resources is pragmatic. But it is too glib a solution to a complex problem. As with many calls for deregulation, so too with urban legal reform in Africa – over time more law is generated, not less. A seemingly irresistible impulse compels governments and their external advisers to use new law to respond to each of the multiple, complex challenges that cities face.

Legislation designed to protect the public from the negative aspects of urban land development has all too often been used by the state to enhance the value of land owned by the wealthy.

Wishful thinking abounds, based on the mistaken premise that planning is solely a technical exercise. This is not a good basis for law-making and it usually founders on exposure to one or more of the following:

• Misguided assumptions. Planners and legislators have over-ambitious or erroneous expectations of the officials who will be responsible for implementing the law. They fail to appraise the diverse economic and political motivations and interests of businesses, citizens and officials. In these circumstances, the interests of those drafting the legislation, or elites, invariably trump those of other intended beneficiaries – and social justice.
• Inadequate appraisal of costs and consequences. Disregard for the true costs of a reform is self-defeating. For example, only when a draft planning law in Uganda was nearing completion did it emerge that its implementation could require up to 20,000 additional public officials.¹
• Unrealistic expectations of law reform. Implementation of planning law must take account of what is possible in the specific context. Initiatives to develop land-titling regulations are notorious for their disregard of the costs of compliance for affected households.
• Reality gap. There is a gap between what planners would like to see reflected in urban planning legislation and the reality of people’s lives in modern African cities. The planning vision is aspirational but invariably impossible to achieve on the scale demanded by rapidly growing urban areas. Many of the proponents of planning law reform seek to bring informal structures inhabited by the poor in line with regulatory standards. This results in the imposition of an administrative burden on those least able to bear it, often with negligible public interest benefit. Scant attention is paid to the regulation of powerful players, such as developers, commercial farmers, traditional leaders and wealthy citizens.

Planning law reform is difficult in any context anywhere in the world. Myriad competing interests need to be identified and balanced. Flawed design and drafting invariably consolidates existing privilege and enhances political and economic inequality. To harness the redistributive potential of planning law, policymakers and practitioners must address the typical shortcomings in reform processes. If they do not, ongoing attempts to update or even transform planning laws are unlikely to succeed.

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The notion prevails that legislation employed successfully elsewhere can be adopted in Africa with minimal amendment, quickly and with similar results. This has been a further impediment to effective, progressive reform. In the late 1940s, the British Colonial Office developed a model town and country planning law for use across Africa and the Caribbean.² In Patrick McAuslan’s words, in Africa this has “been used in country after country to keep the urban masses at bay; to deny them lawful homes and livelihoods; to reinforce the powers of officials; and to weaken the institutions of civil society”.³ 

No matter how appealing the idea, there are no easy or one-size-fits-all solutions to the reform of planning law. It must be carried out in accordance with local conditions and practices. African countries have diverse law-making and planning practices, which reflect their different histories, as well as their present-day economic, social and political realities. There are disparate, complex underlying land tenure arrangements to consider. No model law can be equally appropriate and effective in Malawi, Angola and Burkina Faso, for example.

The imperative is to identify workable alternative approaches to planning law reform that enable more equitable urban development in sub-Saharan Africa. The universal failure of model solutions poses two important questions. Firstly, what constitutes an effective planning law? Secondly, why has it been so difficult to design new but appropriate planning laws in Africa?

Effective planning law must be practical. It is no good drafting a law that appears to address a wide range of concerns yet cannot be implemented. Many of the efforts to write new planning law for African countries are dead in the water because of this failure – as is often quietly, if sheepishly, acknowledged by those involved in the design and drafting.

Although the record of planning law reform is poor across the board, with very few examples of good practice to emulate, reform processes can be improved. But to achieve more efficient lawmaking – and laws – the way that new planning laws are conceived, drafted and implemented has to change. New legislative interventions need to be crafted more intelligently, and with due regard for the interests of the majority of those affected – the urban poor.

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The most important fact when seeking to identify what might bring about positive change is that citizens – in households and businesses – determine the characteristics and growth of African cities. Inevitably, they do this inefficiently and, in most places, inequitably and unsustainably. But they are creating the dynamism and innovation that characterise urban centres the world over. The primary objective for urban planning and other laws must be to influence these patterns of investment and activity in such a way as to achieve better overall development outcomes for cities and towns.

The grip of colonial legislation on the mind-sets of policymakers and practitioners remains strong.

A first step is to identify the conditions that are conducive to achieving better results, rather than simply stating the desired outcome, either expressly or by implication. For example, we should examine what could facilitate a form of land development in urban centres that is less concerned with protecting elite interests and more in line with broader needs and interests. This would be more likely to achieve long-term success than a blithe insistence that a particular method must be followed.

To determine what is possible, the competing interests and concerns of all groups must be properly understood. The urban population as a whole needs to be presented with, accept and follow the rationale behind planning legislation that affects their day-to-day lives. Conditions that enable the authorities – officials and politicians – to implement legislation with realism and sensitivity to the impact of their actions on communities and livelihoods are vital.

Popular participation and consultation in planning reform is frequently a sham. In a context of high social inequality, political and economic elites dominate the lawmaking process. Strong civil society organisations can play an important role in mitigating this imbalance. They can exert influence and assert rights to make decision-makers more cognisant of the limits of their powers and more accountable to the general public.

There is a gap between what planners would like reflected in urban planning legislation and the reality of people’s lives in modern African cities.

This can be done either through the courts or through administrative processes. Among many others, the Social and Economic Rights Centre (SERAC) in Nigeria, the Social and Economic Rights Institute of South Africa (SERI), the Zambia Land Alliance and Shack/Slum Dwellers International (SDI) have all achieved successes which provide grounds for optimism – and emulation.

The emphasis should be on what can be done rather than what should not be done. A legal framework that protects the power of a municipality to levy user charges for service provision is a more useful measure than a set of regulatory hurdles that have to be cleared before a new home can be built. Obviously, compromises and balances must be struck, but it is essential to highlight what is allowed rather than what is prohibited. South Africa’s landmark Development Facilitation Act 67 of 1995 is an example of an attempt to make this shift, albeit one stymied by subsequent constitutional challenge.⁴ 

There should be a focus on the minimum standards needed to secure a basic level of health and safety. The appearance of buildings, even the building materials used, is generally irrelevant to achieving these standards and draconian regulations give rise to costs that households and businesses cannot afford.

More inclusive, just and economically productive urban centres cannot be created by new legislation alone. There needs to be a shift in the mind-sets of the officials responsible for implementing urban legislation in African countries. Officials are influenced by a mix of international, professional and legal pressures, which must be taken into account by planning law reformers.

Many of the visions and ideals that influence planners and officials in African cities are foreign. They are predicated on notions of what constitutes a city and how a city operates that too often are wholly divorced from the realities of urban life and governance in, for example, Luanda or Addis Ababa. Yet the force of these international models sweeps all before it – an insidious and unhelpful phenomenon.

This force is apparent in at least two important areas. Firstly, in the concept of a compact, contained city clearly defined by an urban edge. Secondly, in the prominent role of large-scale infrastructure projects, especially road networks. As a result, we increasingly see planning law used to criminalise informal land development beyond the urban edge and to clear land for the development of mega-infrastructure. This further constrains the opportunities for formal and legal land development, while destroying the homes and businesses of people who are unlucky enough to reside on land allocated to a new bypass.

All the key personnel in the urban legal system in Africa feel the cumulative effect of international and domestic pressures, both in their conception of what would constitute better new law and in their approach to changing the law. In almost all cases, these pressures hamper a realistic and practical approach to problem-solving and lead to negative outcomes.

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The temptation to rewrite planning laws is seductive. However, it promises the opportunity to change a great deal more than is actually feasible. It is – at least in theory – a chance to redesign the planning system and reimagine how towns and cities could look, feel and work. But a wholesale rewriting of complex legislation is not realistic – and probably not desirable.

What is required is a more sanguine approach that leads to better understanding of the underlying conditions that make urban legal reform so difficult in African countries. Such an approach must take into account the interests of all parties, and the prospects and costs for implementation of legislation. Positive change depends on a sober assessment of what is realistic and practical. This can only be gained by asking what laws obstruct such change – and by bringing about shifts in deep-seated attitudes.

There are no easy or one-size-fits-all solutions to reforming planning law.

Fundamental changes in approach cannot be prescribed. They have to emerge and be grounded in the motives and interests of urban populations, the private sector, municipal authorities and donor organisations. This takes time. It is salutary to look at the example of the Brazilian City Statute, the product of 30 years of effort yet inevitably still imperfect.

A number of initiatives supporting a change of approach have been launched. In July 2012, at the first meeting of the Platform for Urban Law Reform in sub-Saharan Africa, a group of planning and legal experts from across the continent agreed to start work on a long-term strategy to bring about urban and planning law reform. In partnership with UN-Habitat, the conclusions of this meeting were presented to the World Urban Forum in Naples in September 2012. A model course for planning law at African planning schools has been drafted. A new African Urban Research Initiative, supported by the African Centre for Cities, the Rockefeller Foundation and Cities Alliance, was inaugurated in Addis Ababa in March 2013. An Urban Legal Guide is in preparation.⁵

It would, of course, be as hazardous to propose a model approach to planning law reform as to adhere to a model planning law. However, closer observance of certain basic rules of good regulation in drafting processes would be helpful. These include proportionality, accountability, consistency, transparency and targeting. Introducing these rules into urban legal reform will probably make the processes longer and more costly, but it will greatly improve the likelihood of establishing more workable legislation at the end.

In addition to the promotion of a more pragmatic approach to urban legal reform in Africa, the conditions that would make such an approach work need to be created and strengthened. This imperative has at least three dimensions. Firstly, it is about building capacity and awareness of what law and law reform can achieve. From the outset, due attention should be paid to the design of law reform processes that recognise the realities of implementation and compliance.

Secondly, it is about changing the urban planning discourses. Planning alone is not going to solve the problems of African cities. International agencies such as UN-Habitat and Cities Alliance, major bilateral doors, and international and regional professional associations need to assist in restraining unrealistic expectations for planning. Similarly, they should promote non-planning measures that can have significantly greater impact. These include municipal finance, especially in relation to infrastructure investment, and land tenure reforms, both in relation to securing formal land rights and recognising informal ones.

More inclusive, just and economically productive urban centres cannot be created by new legislation alone.

Finally, the conditions that allow civil society organisations to engage with urban development and planning issues constructively and coherently need to be fostered. Ideas and suggestions must be debated and absorbed – and state actors held to account. If future urban strategy and policy documents pay more attention to the creation of these conditions than to matching a list of urban horrors to a parallel to-do list of interventions, then we will start to see the outlook for effective urban legal reform improve.

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NOTES

1 McAuslan, Patrick, Land Law Reform in East Africa: Traditional or Transformative?, Routledge, 2013, p.89

2 McAuslan, Patrick, Bringing the Law Back in: Essays in Law and Development, Ashgate, 2003, p.92

3 Ibid., p.103

4 The Act provided extraordinary measures to facilitate and speed up the implementation of reconstruction and development programmes and projects in relation to land; but Chapters V and VI were invalidated in 2010 after a successful challenge brought by the City of Johannesburg regarding the division of powers between municipal and provincial authorities.

5 Authored by Patrick McAuslan and Stephen Berrisford, initiated by the African Centre for Cities at the University of Cape Town and funded by Urban LandMark, Cities Alliance and UN-Habitat.

In a Rwandan village beside a banana palm-encircled lake, a crowd chatters beneath a blue tarpaulin shielding it from the harsh midday sun. Before the crowd on a long wooden bench sit nine elders, mostly middle-aged men and women, who have been elected by the community for their high moral standing. A young man – the president of the panel – stands to address the gathering. He explains that in their midst is a prisoner, provisionally released from jail a week ago, who has confessed to committing crimes during the 1994 Rwandan genocide which, in a little over three months, claimed the lives of between 500,000 and one million Tutsi and their perceived Hutu and Twa sympathisers. The task of those present, the president continues, is to listen to anyone from the village who saw what the prisoner did, to hear from the families of victims about the pain inflicted by losing loved ones, and for the judges to decide the case of the accused.

A murmur is audible as the prisoner walks to the front and stops between the crowd and the judges. He mumbles, and the president tells him to speak up. With head bowed, the man says that he has come to confess to killing his neighbour’s wife in the first week of May 1994. He found the woman hiding in bushes as gangs of killers roamed the paths of the village searching for Tutsi. She was crying, and screamed at him to let her go. He pulled the woman out of the bushes and threw her to the ground. He slashed his machete once across her neck, then again, and left her to die.

The prisoner, still staring at the ground, says that he has come to apologise for what he did. He had many years to think about his actions in jail, and his conscience became so heavy that he confessed his crimes to the authorities. After a pause the president asks the assembly if the testimony is true and complete. For a while there is silence. Then a man at the back stands up. Yes, he says, it is true that this prisoner killed his neighbour’s wife – but he has failed to mention that the following day he also killed the woman’s son with a machete and threw the body in a pit latrine. A woman rises to her feet and says that she too saw the prisoner kill the boy. The president asks the prisoner to respond to these new accusations.

The man raises his head slightly and replies that it is not true that he killed his neighbour’s son. When he received word that the boy was dead he himself was miles away on the road to Kigali, fleeing in shame after murdering his neighbour’s wife. Amid the ensuing clamour, distinct voices can be heard. “He’s lying – I saw him in the village on the day the boy was killed!” “I saw him too – he spoke to my wife in the courtyard that afternoon!” “And he killed others – more than the woman and the boy!”

The president calls for calm, and for each person who wishes to speak to do so one at a time. People start to cry. The judges scrawl on the notepads in their laps. In one week they will have to decide what crimes the man committed during the genocide and what punishment he should receive. When this case is decided, there will be more – more stories of pain and loss, more claims and counter-claims, more details to verify, more decisions to make.

This hearing took place in 2003, in the Bugesera region of southern Rwanda. It represents a common scene from thousands of Rwandan towns and villages which participated in a highly ambitious, innovative and inevitably imperfect court system known as gacaca (pronounced “ga-CHA-cha”). Derived from the Kinyarwanda word meaning “the lawn” or “the grass” – a reference to the conduct of hearings in open spaces in full view of the community – gacaca is a traditional method of conflict resolution and reconciliation that was controversially revived, transformed and codified in law to address an extraordinary predicament which threatened to overwhelm the post-genocide Rwandan state.

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In 2001, approximately 120,000 genocide suspects were detained in festering jails in Rwanda at a cost of US$20 million a year. More than 10,000 people had died in detention since 1994. There were few judges and lawyers left in the country. The judicial infrastructure had been decimated. Few countries have had to tackle the aftermath of a conflict in which hundreds of thousands were killed or injured by hundreds of thousands of their fellow citizens with such limited legal and financial resources. As gacaca identified new suspects still at large, the number of individuals prosecuted eventually swelled to 400,000.

The process was intended to involve the people who experienced the genocide first-hand at every stage

Broadly speaking, the dual aims of gacaca were to prosecute every individual genocide suspect regardless of seniority or social standing, and to begin the reconstruction and rehabilitation of Rwandan society. The process was intended to involve the people who experienced the genocide first-hand at every stage. The duty of prosecution was conferred on respected individuals elected by the local population.

Professional judges and lawyers were excluded from any official role in the trials. In 2001, more than 250,000 lay judges were elected by their communities in about 11,000 jurisdictions. The majority were Hutu. Their training focused on general legal principles and the specific procedures of gacaca. In June 2002, gacaca was launched as “justice without lawyers”, partly by necessity and partly due to a widespread fear that lawyers would distort the process by dominating hearings and intimidating participants.

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From the outset, most international observers fiercely opposed the use of gacaca for trying genocide crimes. In February 1999, when the Rwandan government was still debating the possibility of adapting gacaca to meet its needs, the United Nations Office of the High Commissioner for Human Rights (OHCHR) argued vehemently that community-based courts were ill-equipped to handle complex genocide cases.¹ Amnesty International (AI), Human Rights Watch (HRW) and a host of legal commentators have waged a concerted campaign against gacaca on the grounds that it falls short of international standards of due process for the prosecution of serious crimes. In a report published in December 2002, AI stated:

“The legislation establishing the Gacaca Jurisdictions fails to guarantee minimum fair trial standards that are guaranteed in international treaties ratified by the Rwandese government . . . [G]acaca trials need to conform to international standards of fairness so that the government’s efforts to end impunity . . . are effective. If justice is not seen to be done, public confidence in the judiciary will not be restored and the government will have lost an opportunity to show its determination to respect human rights.”²

Although some foreign donors contributed towards the cost of the community trials, external opposition remains widespread and strident. In 2009, HRW equated “Rwanda’s highly discredited gacaca courts” with the military commissions convened by the US government in Guantanamo Bay. Both were described by HRW as “criminal justice systems … in which hearsay is admitted before a jury of non-lawyers”.³

These critiques of gacaca reflect legal rigidity in the face of unprecedented challenges confronting post-genocide Rwanda – and a limited understanding of the aims of gacaca. The perspective stems from a narrow conception of justice based on the experiences of the Nuremberg and Tokyo trials after World War II and subsequent tribunals – including the United Nations International Criminal Tribunal for Rwanda (ICTR) and the International Criminal Court (ICC). International legal orthodoxy emphasises the use of conventional court hearings – typically located far from the scene of the crime – for small numbers of elite suspects who have the right to defence counsel of their choosing before an impartial judiciary.

Critiques of gacaca reflect legal rigidity in the face of unprecedented challenges confronting post-genocide Rwanda

This orthodoxy is found wanting when contending with the aftermath of highly decentralised conflicts like the Rwandan genocide. Orchestration of modern conflicts is often diffuse and requires new thinking about appropriate legal responses. The profound impact on civilian populations also highlights the need to pursue broader social objectives. Truth recovery, psycho-social healing and reconciliation are beyond the remit of more conventional, geographically distant, legal institutions such as war crimes tribunals. A desire to separate and insulate the justice process from the affected population underpins the conventional legal approach to justice, ostensibly in order to maintain judicial neutrality.

Many critics of gacaca have failed to recognise that a different notion of justice informs Rwanda’s community courts – one necessitated by the particular nature and intensity of the genocide. A rejection of the Nuremberg model of international legal conventions is implicit in gacaca. Justice through gacaca reflects the high degree of popular participation in genocide crimes (not just the role of elites), assigns to the population a central role in prosecuting genocide cases (rather than promoting the participation of professional lawyers), and is sufficiently flexible to pursue locally defined objectives (rather than focusing exclusively on punishing perpetrators). Gacaca represents an innovative response to genocide crimes, and a challenge to conventional means of establishing post-atrocity accountability.

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Critics who fail to judge gacaca by reference to its own methods and objectives also ignore significant benefits that the hearings have delivered. These benefits will have an enduring impact on every level of Rwandan society. Gacaca has certainly been far from perfect, and the process should not be romanticised by internal or external observers. Among its main shortcomings have been numerous cases of corruption, bribery of judges and intimidation of witnesses, syndicates of liars who colluded to hide evidence, and retraumatised survivors. However, these negative aspects have not been more widespread than could reasonably be expected of a decade-long process involving as many as one million cases in 11,000 jurisdictions.

There has been a tendency on the part of Amnesty International and Human Rights Watch to identify the worst cases of corrupt or traumatising hearings and suggest that they are representative. Such selectivity may be useful from an advocacy perspective but it is analytically flawed – and undermines legitimate criticism of gacaca. While the full impact of gacaca will not be apparent for many years, it is possible to identify three main spheres in which the process has delivered benefits to ordinary Rwandans – justice, truth and democratic participation.

Justice

Gacaca has been remarkably successful at fulfilling the Rwandan government’s promise to deliver comprehensive prosecutions of génocidaires without exacerbating the dire overcrowding of jails that necessitated gacaca in the first place. Far from being “mob” or “vigilante” justice, as many legal critics predicted, about a quarter of gacaca cases have resulted in acquittal. Many sentences have been commuted to community service, thereby facilitating the reintegration of detainees into society.

A vast genocide case load – as many as one million cases – has been handled by gacaca in a decade

Gacaca has also individualised the guilt of those responsible for the genocide. Greater clarity about who, as individuals, did or did not commit genocide crimes is vital for understanding the causes of the genocide, and for community cohesion in the future. Provincial governors, military officials and peasant farmers have been treated equally and their cases heard without regard to political or socio-economic status – an explicit recognition that Rwandans from all levels of society participated in the genocide.

A vast genocide caseload – as many as one million cases – has been handled by gacaca in a decade. In fifteen years the International Criminal Tribunal for Rwanda (ICTR), based in Arusha, has completed 69 trials. Gacaca has cost about US$40 million, the ICTR more than US$1 billion. The financial and social cost of sustaining a huge number of suspects in jail – with no prospect of trial of any kind – was a crucial consideration in deliberations about the creation of gacaca. By clearing the backlog of genocide cases, gacaca has released much-needed funds and people for Rwanda’s reconstruction.

Truth

The emphasis on popular participation during gacaca hearings was conducive to truth-telling and truth-hearing. Gacaca has enabled the recovery of truth in the form of facts about the genocide. It has also allowed individuals to tell and hear narratives that help them deal emotionally and psychologically with the past. The gathering of testimony throughout the country provides a rich and diverse repository of historical material regarding genocide crimes. The recently created Gacaca Documentation Centre in Kigali constitutes one of the largest archives concerning a mass crime anywhere in the world – an invaluable resource for Rwandans and foreigners alike.

Suspects and survivors often affirm that the opportunity to speak openly at gacaca about events and emotions concerning the genocide has contributed to their healing. In interviews, many suspects claim a sense of release from feelings of shame and social dislocation through confessing to – and apologising for – their crimes in front of their victims and the wider community. Many survivors say that they overcame feelings of loneliness by publicly describing the personal impact of genocide crimes and receiving communal acknowledgement of their pain.

The openness of the community dialogue at gacaca is one of its key features. It differentiates gacaca from the conventional forms of justice advocated by human rights organisations, in which judges and lawyers control the discourse and discussions are limited to the legal facts deemed necessary to determine guilt or innocence. Gacaca pursues these same legal questions but in a manner – and forum – which enables participants to discuss the individual and collective effects of crimes, and to seek some form of acknowledgement or catharsis.

Democratic participation

Gacaca has opened new spaces for political debate and spawned new forms of democratic participation. In a country where the national political arena remains tightly controlled, this poses a major challenge to a government which did not fully anticipate the ramifications of allowing the population to shape the day-to-day running of gacaca. Most debates about democracy in Rwanda focus on the national level – particularly the process of presidential and parliamentary elections, media regulation and reform of state institutions. Developments at the sub-national level may prove to be just as – if not more – important for Rwanda’s future political trajectory.

I spent nine years observing gacaca hearings and interviewing participants. During that time, I witnessed energetic – and highly unpredictable – forms of popular participation. Many hearings lasted eight or nine hours under the blazing equatorial sun. Communities argued over the details of genocide crimes – who had killed whom, by what means, where bodies were buried, what property had been stolen, and who deserved compensation. Complex, often heated, discussions about the nature of justice were commonplace. To what extent should peasant perpetrators be held accountable when the genocide was initiated by political and military elites? Was the imprisonment of the guilty – as opposed to compensation for victims – the preferred outcome of the process?

Gacaca has opened new spaces for political debate, and spawned new forms of democratic participation

Many foreign commentators depict Rwandan society as closed and secretive. Gacaca has demonstrated an immense capacity for vigorous political exchange. This was especially visible during the prosecution of local mayors, prefects and other senior government officials after the 2008 reform to the Gacaca Law. For many participants, the transfer of certain “Category 1” genocide cases from the national courts to gacaca proved politically emboldening. The spectacle of former leaders being held accountable in the courtyards and marketplaces where previously they had exercised power was reflected in highly charged hearings.

In the midst of communal debates at gacaca, locally elected judges have gained a new moral and political standing in the community because of their ability to guide difficult discussions. Many claim that community members come to them for advice on daily matters because they have proven adept at mediating disputes and providing wise counsel. Gacaca has produced a sizeable cadre of skilled political practitioners with a deep knowledge of the divisions and concerns within their communities.

The impact of gacaca on local leadership has been especially important for women, who were often among the most active and voluble participants during genocide hearings. Women were excluded from any official role in the traditional version of gacaca which dealt with family disputes and day-to-day infractions. In the modern incarnation of gacaca almost 40% of judges were female.

Over time gacaca became a forum where communities could discuss sensitive and contentious issues beyond its official mandate to prosecute genocide cases. The discussion of crimes allegedly committed by the Rwandan Patriotic Front (RPF) – the current ruling party in Rwanda – against Hutu was controversially forbidden by the Gacaca Law. But I attended numerous hearings in remote villages where Hutu participants debated at great length the failure to address RPF crimes. Judges tolerated, rather than actively encouraged, these discussions – and did not record any of the testimony in their court notes for fear that the transcripts would attract the attention of the authorities in Kigali.

Once underway, gacaca took on a life of its own

Inconvenient truths only emerged towards the end of gacaca. Participants needed time to gauge what forms of discourse were safely permissible. Communities on the country’s periphery determined that state surveillance of their hearings was minimal and that open debate of controversial topics was possible.

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The Rwandan government took an enormous gamble in allowing the same population that had experienced the genocide to guide and shape gacaca. It was not a solution favoured by all factions within the RPF leadership and other influential elites. The scale, duration and complexity of gacaca militated against the degree of centralised control alleged by some international detractors.

Gacaca has been a far from homogeneous process. The mass involvement of the population in the trials is unique. Geographical, historical and other local factors determined the nature and outcome of hearings. Local communities moulded gacaca to their own ends – sometimes creating significant problems, and often contrary to the objectives of those who instigated the process. Once underway, gacaca took on a life of its own.

Gacaca’s capacity for fostering open community debate of contentious issues and new forms of local leadership highlights its democratic potential. The long-term impact in this regard will depend on developments in national politics, and the degree to which Kigali-based elites permit more broad-based political involvement and criticism. Regardless of how national policy evolves, Rwandan leaders will have to contend with the desire for substantial political participation which gacaca has aroused among hundreds of thousands of ordinary Rwandans.

A major challenge for gacaca has been overly lofty expectations about what it could achieve. Many outsiders have never understood the complexity of the process or its diverse objectives – many of which evolved. International criminal tribunals focus on the punishment of leading malefactors and deterrence. It is doubtful that this objective can ever be achieved by legal mechanisms alone. More importantly, much more than deterrence is necessary to produce lasting peace.

The pursuit of reconciliation was enshrined from the outset in the Gacaca Law. In 2008, in response to extensive discussion in hearings over many years, the law was revised to require suspects to request forgiveness as well as confess and express remorse. Reconciliation and forgiveness are – at best – a distant prospect in most of Rwanda. But these are not one-off acts and gacaca constitutes an important starting point. Other societies confronting the aftermath of mass conflict can learn much from the substantial political and social dividends of Rwanda’s approach to local justice – as well as its flaws and pitfalls.

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NOTES

1 United Nations Office of the High Commissioner for Human Rights, “Report on the Situation of Human Rights in Rwanda”, UN Doc. E/CN.4/1999/33, 8 February 1999, p.12.

2 Amnesty International, “Rwanda – Gacaca: A Question of Justice”, AI Index AFR 47/007/2002, December 2002, p. 2.

3 Human Rights Watch, “US: Revival of Guantanamo Military Commissions a Blow to Justice”, New York, 15 May 2009.