Using
the Palaver Settlement Paradigm as a means of fortifying the search for the
democratic ideal in Sub-Saharan Africa
By
Kingah Stephen*
Résumé
Dans les civilisations orales, la parole engage
l’homme, la parole EST l’homme (…) Dans la civilisation moderne, le papier
s’est substitué à la parole. C’est lui qui engage l’homme. Mais peut-on dire en
toute certitude, dans ces conditions, que la source écrite est plus digne de
confiance que la source orale, constamment contrôlée par le milieu traditionnel ?[1]
La démocratie n’est point un instant donné. C’est
un mouvement permanent qui consiste à chercher l’idéal pour une société donnée.
Les mécanismes pour y parvenir sont multiples et varient selon les besoins et les intérêts poursuivis par des
communautés. Après l’indépendance la plupart des pays africains se sont embarqué derrière des modèles
occidentaux et orientaux. Ils estimaient que ces modèles seraient leurs
feuilles de route idéologiques pour
enfin construire des bases démocratiques et appropriées par rapport à
leur accès au développement socio-économique. Il existait bel et bien un
consensus (autour de la majorité des leaders africains) sur des valeurs qui
sous-tendaient l’idéale démocratique. La liberté, l’égalité et l’état de droit
fondaient et restent les principes clefs de l’idéal démocratique. Mais les
moyens pour y accéder varient. Dans les années 1980 et 1990, de nombreux
problèmes furent constatés dans la
plupart des régimes africains. Ces scléroses démocratiques étaient marquées par
les coups d’états ainsi que des guerres civiles dans la majorité de ces pays.
Les assassinats politiques, l’arrestation d’opposants politiques ainsi que les
disparitions subites ont caractérisé les règnes des militaires ghanéens,
nigérians, sierra léonais, libérien ainsi que les gouvernements successifs
d’Afrique du Sud qui soutenaient l’apartheid. Force est de constater qu’avec
ces dérives qui se multipliaient, de nombreux systèmes se détachèrent de
l’idéal démocratique. Avec le recul, nous notons que les leaders des pays
africains (sauf, dans une certaine mesure, le Botswana) ont maintenu, mutatis
mutandis, les modèles coloniaux dans un esprit de ‘mimétisme’, en négligeant les réalités des contextes africains.
Dans cette optique, ils ont minimisé le rôle des institutions et valeurs
africaines telle que l’arbre à palabres dont on constate une réincarnation
moderne dans des institutions éphémères telle que la Commission de Vérité (et
de Réconciliation), les
Conférences (Souveraines) Nationales et les juridictions dites gacaca du Rwanda. Notre
opinion est que ces institutions,
rappellent la palabre africaine, peuvent être utilisées comme des moyens de
fortifier et/ou catalyser la
recherche d’une démocratie idéale. De ces analyses nous déduirons la
possibilité d’institutionnaliser certains principes de ces palabres modernes
dans les courants politico constitutionnels actuels.
Certes la démocratie représentative est ici pour
rester. Néanmoins, plus le citoyen se rapproche de la source des décisions,
plus la légitimité est renforcée. Plus l’homme de la rue est se voit accorder
la parole, plus il sera assuré de la bonne gestion de ses impôts. Et tant que
la parole est négligée, la démocratie s’auto détruit. Beaucoup reste à puiser
dans les richesses culturelles africaines. En matière de démocratie et de
droit, ces richesses restent considérablement sous-exploitées. Lesdites
richesses se conjuguent en une diversité phénoménale qui ne demande qu’à être
apprivoisée. Si ces richesses étaient bien explorées et exploitées, nous serions alors en
mesure de répondre à la question soulevée par Hampâté Bâ.
Introduction
The political dispensation of most Sub-Saharan African
(SSA) countries beams with painful and gracious variety. Like the arm of a
pendulum it oscillates from share ‘warlordism’ in Somalia to acceptable
participatory democracy in Botswana. In the middle of these extremes lies a
cocktail of democratic hybrids that could respond to what Bidima describes as les
démocratures[2]. Such is the diversity of a continent with
a demography that resonates with variety and a geography unique in nature. Yet
Africans, as conscionable as they can be, bask their divergences in an ultimate
pursuit of ideals – not least of which is the democratic Holy Grail – a truly
productive democracy. As the said democratic ideal appears hard to tame so does
consensus as to the means of harnessing the desirable common will.
A fundamental concern in every productive democracy is
that of building consensus with regard to the acceptable goals of the society.
Closely associated to this challenge is necessarily that of identifying the
apposite forum or sphere of discourse. Post-independence political evolution in
most African nations has been jerky, if not turbulent. Identifying a common
language of political discourse together with the appropriate platform for the
same has been substantially mired in altercations on the clash of
public/private interests. While agreement as to the nature and end of democracy
in most of these states remains remote, accord as to the various means of
attaining any contemplated common vision of democracy is ever more distant. The
common approach has been that of looking up to the democratic systems of some
Western nations. Unfortunately this is usually done with little regard to the
historical, geographical, demographic and economic circumstances under which
the Western models were formulated. By so-acting, African realities have been
considerably neglected. The cultural potential of Africa in providing adapted
solutions to the problem of institutional deficits has been underexploited.
It is to this last contention that we address
ourselves. The paper rests its case on two premises. First, we argue that the
Palaver Settlement (PS) system immanent in most pre-colonial and traditional
societies provided a public sphere where people expressed their opinions on
every aspect of life that actuated social harmony. Individuals could directly
determine the course and direction of the community. Participation was the
rule. Not the exception. It was of course. Such was the conception of a culture
of African democracy. A conception widely neglected by most of the
post-colonial governments.
Secondly, we intimate that an institutionalisation of the PS paradigm is
not only possible but imperative if African legal and social systems have to
pierce the conceptual veil that separates traditional Africa from modern
Africa. This dichotomy represents a simplistic attempt to solve certain complex
social problems that require more comprehensive and sophisticated approaches.
From this premise, the treatise reviews some of the recent experiences whereby
the PS paradigm has been used, successfully or otherwise to direct, redirect
and reorient state business in some societies. In this light therefore, an analysis
is made of the Truth and Reconciliation Commission (TRC) model and The
Sovereign National Conference (SNC) paradigm. It is our opinion that these
bodies have been invariably used to fortify the democratic ideal, as the case
may be.
The method adopted by the paper is that of juxtaposing
the concept of a democratic ideal and the PS paradigm. This is done in part by
a presentation of the precepts that underpin the democratic ideal (1). In the
second part of the work a review is made of the democratic deficits as
perceived from the experience of certain African nations such as Ghana,
Nigeria, Sierra Leone and South Africa (2). Other countries are equally given
appropriate attention when necessity so mandates. In the third part of the
paper an analysis is made of the PS paradigm which serves to provide some of
the raw materials that make good the deficits exposed in the preceding section
(3). Part (4) considers an empirical study of the pros and contras of the
various attempts made by some African nations to fortify their democracies by
making recourse to the TRCs or SNCs- bodies, whose ideals, we argue, fall on
all fours with the spirit of an African Palaver. The final section exposes some
of the options and alternatives to the extant democratic models of African
political systems; models which we believe, reflect the cultural wealth as well
as the economic limitations of most of the countries across the continent.
However important these suggestions might seem, what is fundamentally impending
is the task of defining and circumscribing what the paper considers to be the
democratic ideal. Also, delimiting and describing the confines of Palaver
Settlement could not be more urgent.
1-The Democratic Ideal
Democracy is not a moment. It is not a given. It is a
process. It is a movement[3] and above all, a complex equation that
is balanced (if ever) by a deliberate and conscientious interposition of both
known (societies) and unknown (contingences) variables. It is widely accepted to be that form
of government in which the sovereign power rests and is exercised by the common
people (the silent majority). The people constitute the final source of power.
“It is the man-in-the-street, in the last analysis, whose will is decisive”[4]
not the will of a selected coterie of oligarchs who represent the vested
interests of private lobby concerns. It entails rule by the whole body of free
citizens either directly or otherwise via a system of representation, as
distinguished from monarchy, aristocracy or oligarchy[5].
The term emanates from two Greek words, to wit, demos meaning people and Krateîn that equates ‘to command’. A twinning of
the two terms refers to that form of government in which sovereign power rests
with the people. As a movement or process, it relates to the manner in which
public policies- the most important of which is law, it being the will of the
sovereign- are reflected upon and adopted by the people. While acknowledging
its polysemic nature, Burdeau notes that it is a cherished value and the
inalienable vocation of men to take their destiny in their hands both jointly
and severally[6].
There are certain principles or values that are
immanent in any democratic system worthy of the calling. These include liberty
(isonomia), equality,
participation (ecclesia),
communication, justice and the
rule of law.
Liberty
The direction of a state can only necessarily be
assumed by men who have the capacity to act at an hour of their choosing; to
exercise their best of talents undeterred and to voice their concerns on
socio-economic issues in an unbroken flow. To be able to act as such and do as
much in a democratic society, people have to be free. Freedom therefore, is an
unavoidable prerequisite of a democratic society. It is the power to do as one
pleases. It entails freedom from physical restraint. It equally embraces the
enjoyment of various rights and privileges and includes the power of choice.
Liberty precedes any other democratic value. It is in Fonlon’s words the right
by which each man creates for himself his own course. A man’s freedom
“constitutes the path through which his powers and talents must pass to reach
their fullest development”[7].
Harold Laski on his part describes liberty as the “eager maintenance of that
atmosphere in which men have the opportunity to be their best selves”.[8]
However, the full exercise of liberty in decision-making as it existed during
the Greek agora cannot be feasible given the number of people inhabiting modern
nation-states. This inflation in population has necessitated the development of
indirect representation .In this regard, Kamto writes that
En dépit de l’attrait que la démocratie de
l’agora peut exercer sur l’homme du XXe siècle, l’on sait bien que
L’Etat-Nation n’est pas la Cité grecque et que la démocratie représentative
correspond mieux à sa structure[9]…
The importance of representative democracy which is
equally examined by Fonlon does not preclude the possibility of direct
participation wherever and whenever it is necessary. While the African palaver
may be anachronistic to the Westphalia Nation-State model, it can be actuated
and ameliorated upon by certain principles upon which the African palaver is
founded as we reveal later. Fonlon evokes the importance as well as the dangers
of indirect representation or representative democracy in these words;
There can be no democracy where people vote
in fear, where elections are rigged or gerrymandered, where votes are bought
and sold; because then, the so-called representatives would not be the choice
of the people, for the common good would not have been the determining factor
in their being voted into office[10].
Civil libertarians usually categorise liberty into two
sub-types, namely, private liberty (freedom of religion) and public or
political liberty that includes the power to take part in public affairs. The
latter is predicated on two variables, to wit, the provision of sound and
adapted education on the one hand and the guarantee of honest and true
information on the other. Burdeau equally classifies liberty into two types-
liberty of autonomy and liberty of participation which both respond,
respectively, to the preceding categorisation[11].
It is the duty of the state to guarantee the liberty of its citizens in their
activities. This, it endeavours to do in an equitable manner that responds to
the equality in nature of all and sundry subscribing to the laws of the said
state.
Equality
Equality is perceived by many to be the state of being
equal. Man needs to be convinced that as a citizen, he is amenable in equal
dimension (as any other citizen) to the obligations or rights that devolve from
the state to private individuals. He needs assurance that he will not be
treated as a citizen-by-half. It is trite stating that men are not absolutely
equal in every respect. Differences abound, yet their uniqueness fades and
wanes into the horizons of citizenship. This is the quality that accords one
vote to one person thereby consecrating equiponderant leverage to each and
every person in the shaping of the Polis. The gap that exists between this conceptual
exposition and the realities that usually unfold in most societies is
overwhelming. Inequality may have preposterous, pernicious and deleterious
consequences. The experience of racial minorities in The United States of
America during the 19th century adequately drives home this point.
During this regrettable epoch it was a licit presupposition that the Negro was
a fraction of a human hence could be sold and disposed of as a chattel. Here
was the exhibition of inequality at its worst. For liberty to be fully
exercised, the equality of men must be ascertained. Special privileges for
people under similar circumstances ought to be banished and adequate
opportunities for proper development ought to be laid bare to all.[12]
Equality is the faculty that allows individuals the latitude to exercise their
rights in the ultimate fulfilment of the common good. This relates to their
hallowed right of participation that includes communication as well as free
speech.
Participation (Communication)
As noted above, there is perceptible consensus
(amongst constitutionalists) as to the fact that participation within the
framework of the Nation-State can only be indirect through representatives.
Even in Switzerland where citizens vote via referenda on issues that range from
the construction of roads to joining the UN; where much political action takes
place in the 2800 local communities, a bicameral representative legislature is
not foreclosed.[13]However, the
closer the citizen is to the sacrosanct procedure of decision-making, the
better the validity of the democratic process, ipso jure, the legitimacy. Not
only is he assured direct say in the management of his taxes but he equally has
the feel of being in charge- of being personally engaged in the project.
Therefore, the cherished values of participation and communication need not be
over burdened with emphasis. With regard to communication, it behoves us to
note that dialogue and frank debate that averts the monotony of sterile
monologues (a staple of some state-owned media institutions) is vital for the
burgeoning of any sane and sound democracy. The policies and decisions of the
Government ought to be amenable before the focal lens of public scrutiny. One
cannot gainsay the fact that Government reaps stupendous benefits from frank
discourse with the people. Such dialogue can and need to go beyond the confines
of legislative walls.
The speed of the globalisation process that is
paradoxically accompanied by a heightened degree of cultural consciousness of
people around the world has ushered in novel actors in the international arena.[14]The
growth of Multinational Companies and the crescendo of awareness within ethnic
and nationalist groups indicate that the types of pressures to which law makers
are subject have substantially metamorphosed. The increase in number of these
new actors necessitates a rethinking of the entire legislative endeavour. As
demonstrated below, the modern representative process has considerably been
susceptible to the caprices of vested interests unconnected to the needs of the
majority of the people via whom legislators are thought to speak. David Risser
has poignantly explained some of the deficiencies of representative
participation in modern democracies. While acknowledging the importance of the
legislative process he notes that the first weakness in the extant paradigm
relates to the manner in which issues find their way into the agenda of
legislative and other policy-making bodies. Interest groups with undeclared and
unclean intent easily manipulate representatives thereby influencing the
legislative agenda. This not only casts a shadow on the probity of the actors
within the entire political spectrum, but equally erodes the prospects of an
even-playing field in the democratic process. The second democratic fallacy is
that which is predicated on majority rule. Democracy is usually acclaimed to be
the rule by the majority within a political circumscription. None the less, in
developed democracies such as the USA the leverage exerted by powerful minorities
(lobbies and pressure groups) on the direction of legislation on certain
sensitive issues as subsidies, cannot be minimized. The result of the
procedural strain is that the silent majority or politically active segment of
the society has no strong or particularly articulated preferences. Instead the
‘activated minorities’ actuate legislative outcome and “each policy area
attracts its own unique constellation of interest groups”. In certain systems,
consultative bodies are erected to make good this participation gap. However,
these too are not immune from powerful interest groups. The existence of
parliamentary majorities on the other hand, only works at distancing the silent
majority given the ease with which select committee members can be manipulated by
lobbies with vested interests. Robert Dahl has described this evolution has as
“polyarchal democracy”. The third problem is what Peter Bachrach characterises
as “democratic elitism” which relates to the political system in which
representatives, constitutional institutions and practices conceal the
underlying ‘oligarchical’ concatenations of power.[15]
Hence representative democracy is not perfect in all given circumstances. Yet
the charm of perfection remains irresistible. Little wonder, options and other
alternatives are always under review. Such is the vocation of the present
endeavour; an endeavour reminiscent of (not identical to) Habermas’ “procedural
paradigm of law” that intricately explores various ways of activating an
informal public sphere within the framework of extant institutional networks.
Albeit his resort to deliberative democracy reflective of or articulated by
representative bodies such as Parliament and Congress, his bent on augmenting
citizens’ participation in the democratic process is firm. As noted above,
participation is predicated on free speech. This has to be sincere,
constructive, informed, and animated by the spirit of tolerance. We now shift
our gaze towards justice and the rule of law.[16]
Justice and the rule of law
Justice relates to conformity to truth, fact or
reason. It embraces the quality of being just, impartial and fair. Democracy as
noted earlier, targets the concerns of free, equal and active citizens. They
need to be constantly reassured that the principle of ‘one man one vote’ is
hallowed and will not be flouted by a select few who detain unbridle financial,
intellectual or political capital. Justice is the meta-value that checks
excesses in this regard .The importance of justice within a political system is
taken up by Jacques Derrida for whom the demands of justice are infinite
compared to the finite realm of the law. For him, while a system of justice is
not deconstructible, that of law is. However, like justice, the law serves as a
vital valve in checking the excesses of democratic systems. This is done
through efficient judicial bodies before which everyone, presidents inclusive,
is equally amenable. Nevertheless, empirical studies have it that most leaders
in post-colonial Africa are either ‘the law’ or ‘above’ the same. This aspect
of democracy escorts our mind to yet another fundamental principle of a
workable democracy—Separation of Powers. The limited remit of this paper
constrains a comprehensive overview of the said principle. But it is important
to note that mechanisms of checks and balances are necessary to temper excesses
from either of the arms of Government. Citizens as well as the state ought to
respect rules. The rule of law guarantees legal certainty and this in turn
facilitates and encourages investors whose confidence in the system is
bolstered by their trust in a workable judiciary rather than by the whim of a
dictator. Law is thus always at the sentinels of man’s risky predisposition of
sliding into the precipices of excesses. All the same, the paper takes issue
not with the necessity for laws but with the manner and process by which laws
are made and applied.
We have hitherto explained the nature, values and
merits of the democratic ideal. One cannot convincingly assert that most
African nations have attained the threshold of the acceptable. In the second
part of the work, we present a synopsis of the democratic experiences of
certain African states in their pursuit of the democratic ideal. Non-exclusive
focus is accorded to Ghana, Nigeria, Sierra Leone, South Africa and Rwanda.
Efforts have been made in these countries to reach out to workable democratic
systems yet the end of the road appears ever more distant. There is hope but
that indeed is just a small part of the jigsaw of a panacea.
2-Synopsis of the Democratic Deficit in Africa
during the post-Cold War Era
Democracy is not edible. So most common people will
say in Africa. However macro-economic studies reveal that democracy is a major
non-exclusive herald of propitious economic growth and development. While some
of the success stories of the Asian Tigers might reveal that economic
development is not necessarily predicated on democracy, it is difficult to
identify workable democracies with substantially hopeless economic balance
sheets. This implies that in most cases, true democracy is accompanied by
incidents that range from economic stimulants to social benefits. In this
regard an economic nirvana remains a distant contemplation for most African
nations. A survey of the continent by Robert Guest of The Economist magazine revealed that from 1960 – 2003
there were 107 incidents whereby African leaders were toppled either through
coups, civil wars, or invasions. During the same period only 19 of these
leaders threw the gauntlet through democratic elections.[17]
A comparison of the economic performance of countries such as Liberia, Sierra
Leone, Angola and Somalia with that of Botswana[18]
during the same period is telling. While per capita income of the GDP of the
four countries averaged 400 dollars per annum that of Botswana was 3,000
dollars. This implies that democracy considerably facilitates economic growth.
Such a democratic system is that which (variably) encapsulates all the values
evoked above. As we reveal in the paragraphs that follow most of the systems
have been redolent with democratic gaps.
Many African nations inundated their post-colonial
constitutions with several provisions that celebrated the democratic values of
liberty, equality, justice and participation in the democratic process
(whatever that meant).[19]
The translation of these provisions into action proved much more challenging.
Grievances regarding the political landscape were usually transformed into
coups and civil wars. While countries like Sierra Leone, Ghana, Nigeria, The Central
African Republic, Togo, Mauritania, Mali, Liberia, Chad and Burundi had a fair
share of the experiences of the hard hand of military dictatorships, most South
Africans lived under the pangs of apartheid laws. In Rwanda, political
discontent assumed an ethnic dimension that finally led to the massive killings
of Tutsis and moderate Hutus prior to and after the genocide of 1994. All these
experiences variably revealed ‘legitimacy crises’. We hereby address two
benchmarks or thematic areas that account for the democratic deficit in many
African states; these include Governments’ treatment of Opposition parties and
general dissent and institutional mode of distributing resources.
Freedom of expression or association is unequivocally the
badge of liberal democracies. Most constitutions of Africa reflected this. Yet
during the dawn of independence Nkrumah transformed the youth wing of his
Convention People’s Party into a repressive machine. His rather austere
economic and fiscal policies were received with dissent that was expressed
through the various attempts on his life in 1962. In 1966 he was toppled by a
military junta. The next civilian leader, Dr Kofi Busia, acceded to the seat of
power in 1969. But this period of a civilian lull was broken by the military
regime of Ignatius Acheampong in 1972. His decentralisation policies were
paralleled by blatant ruthlessness towards political opponents. In 1981 Jerry
Rawlings ousted the third civilian Government of Hila Liman in a coup d’état.
Disappearances and alleged political killings became a cause for concern in
internal as well as international quarters. These included the execution of
former statesmen and judges. The National Revolutionary Council tolerated
minimal dissent. The scenario was not very different in neighbouring Nigeria
where military Governments almost became a given.[20]
Political freedoms always posed a problem for the regimes. Under the rule of
Gen. Ibrahim Babangida the renowned journalist, Dile Giwa, was killed in 1986.
During the reign of Gen. Sani Abasha (1993-1998) prominent activists such as
Ken Saro Wiwa and Kudirat Abiola were killed. In Sierra Leone the civil war
that pitted Government forces (Civil Defence Forces) against rebels of the
Revolutionary United Front-RUF (of Foday Sankoh ) and those of the Armed Forces
Revolutionary Council-AFRC, claimed thousands of lives in the wake of the
military rules of Johnny Paul Koroma and Valentine Stressa. These regimes
gained notoriety in their heartless treatment of opponents. In South Africa the
majority black and coloured communities experienced the wrath of apartheid
rules that raised racial segregation to a legal pedestal. Acts of civil
disobedience and riots were summarily silenced by a repressive military
machinery. The massacres in Sharpville and Soweto in 1960 and 1976
respectively, together with the murder of Steve Biko of the South African
Consciousness Movement provoked international denunciation of the policies of
the apartheid system.
Equitable distribution of resources and a mechanism
of power sharing have been
the major causes of coups and civil wars in Africa. In Rwanda such differences
in political as well as economic capital assumed the dimension of an ethnic
friction between the Hutus and the Tutsis. Before independence, power was
largely in the hands of the Tutsi pastoralists. Tutsi superiority over Hutus
was tolerated by the colonial masters.[21]Hutus
were greatly resentful of the Tutsi minority. In an orgy of ethnic killings
that commenced on July 25 1959, about 100,000 Tutsis were slain to death. The
United Nations then organised a referendum that brought a Hutu party
(Parmehutu) to power in 1961. The following year, the country attained its
independence and thereafter there were intermittent attacks launched by the
Tutsis one of which led to the massacre of 20,000 Hutus in 1963[22].
Power remained in the hands of the Hutus. Events came to a head on April 6 1994
when the plane that was carrying Presidents Juvenal Habyarimana (a Hutu and
President of Rwanda) and Cyprien Ntaryamira, was shot down as it made its way
from Dar-es-Salam. In the violence that ensued, about 800,000 Tutsis and
moderate Hutus were killed within a hundred days. As Ayittey postulates, the
main cause of this carnage was simply and lack of the will to share power[23].
The disastrous effects of inequitable distribution of resources and political
power were equally demonstrated by the experiences of Liberia. She was ruled
solely by Americo-Liberians (to the exclusion of the local ethnic groups) from
its independence until 1980 when Samuel Doe seized power from William Tolbert.
The hopes of the local populations were dashed when Doe began to fill major
posts with people from his native Krahn tribe. Disgruntled rebels led by
Charles Taylor (an Americo-Liberian) and his Lieutenant Prince Johnson captured
and killed Doe in September 1990. In ex-Zaire Mobutu accorded many privileges
to his Gbande tribesmen. In other African countries such as Kenya, Burundi,
Sudan, Nigeria, Ghana and Cameroon a majority of the ruling elite has been
identified with specific ethnic groups. This does not necessarily imply that
ethnic diversity serves as a risk factor for civil strife. Rather, it is
evidence of the fact that when power is very much concentrated in a particular
hub, the ensuing tension that builds, may lead to a potential severing of the
spokes. This centre-periphery paradigm is not so much a problem as is the
monopolisation of the centre by a limited number of people.
We have hitherto considered the values of the
democratic ideal. Reference has equally been made to the democratic weaknesses
that characterised certain African nations in the wake of the Cold War, which
in itself symbolised the depletion of Africa’s strategic worth on the global
geopolitical chess board. In the next section we opine that the problem with
African ‘democratic’ systems has not been with democracy per se but with the systems themselves. To our mind the major faux
pas of many leaders was to
radically mimic liberal and/or Marxist models without sufficiently contextualising
the said ideological loans to African realities. Whenever attempts were made at
contextualising foreign models to African particularities, resources to
complete the schemes always proved inadequate. Such was the fate of Nyerere’s Ujamaa
vilijini scheme of 1967 in
Tanzania. One of the institutions -a mirror of the said African realities- that
guaranteed social cohesion and consensus (with regard to decision-making) in
Traditional African Societies (TAS) was the African Palaver or the PS paradigm.
It has been castigated by jurists (notably positivists) as a subject of
Anthropology. The African Palaver has thus not solicited much attraction from
forensic circles. Yet its underlying conceptual and empirical worth has been
used (advertently or otherwise) in some of the countries treated above. We
argue (infra) that such
bodies or fora as Sovereign National Conferences and The Truth and
Reconciliation Commissions of South Africa and Sierra Leone are modern
re-incarnations of the African Palaver and that they have been used variably
over the years to fortify the search for a democratic ideal in the said
countries. But in order to appreciate this analogy, it is apposite first to
consider the types of palaver through the screen of justice as perceived in African
traditional settings (3.1). Thereafter we review the nature, end, the
principles, the actors, the venue and the effects of the African Palaver (3.2).
3 - The African Palaver
The dictionary definition of ‘palaver’ warrants its
immediate dismissal from the contemplation of any mature discourse.[24]
All these definitions come down to ‘protracted time-wasting talk’- and we might
add ‘as perceived by the observer’. These definitions obscure the realities
that occasioned such discussions. An apt definition of the African Palaver (AP)
might be hard to seek because in most of the TASs it represented a complex
network of institutions that had specific tasks. That notwithstanding, Bidima,
while alluding to Atangana, makes reference to a specific genre of palaver (the
agonistic palaver) which he defines as the resolution of a conflict through
verbal exchange in a discourse that humanely neutralises violence[25].
He goes on to describe it as a forum of social drama; a procedure and a
concatenation of human interaction. Von Saenger refers to the AP as the
expression of religious beliefs that envelops every social, political and
judicial institution.[26]
That notwithstanding, the AP has itself evolved as a function of social
mutations which in themselves reflect the diversity as to the types of such
institutions.
Bidima classifies the AP institutions into two broad
types, to wit, the irenic palaver and the agonistic palaver. The former is a
peace-seeking and consensus-building mechanism that is deployed, a priori, in
providing a sound framework of social harmony. Unlike the irenic palaver, the
agonistic palaver aims at settling and resolving disputes between members of a
society. Hence with regard to conflict management, it is convened a posteriori.
Another form that can be added to the two broad categories and which in itself
cuts through these two is what we can describe as the ‘virtual palaver’. It
relates to the recrudescence in the utilisation of the internet by most
Africans in the diaspora[27].
Like the typical African palaver it revolves around invisible actors and serves
as a true source of knowledge. Yet its full merit remains to be harnessed in
Africa itself given the limited availability of modern technology still
perceived as the preserve of the parvenus or nouveaux riches. All the same, its
benefits to Africa, however tainted, have been considerable. It has served in
the reconstitution of filial bonds, diminished social ruptures, and guaranteed
an instance of ‘communication for development’[28].
Tersely put, it has been a true post-modern space for the expression of public
opinion. What is more, the internet has equally provided a platform (a
‘necronet’) for the ululation of Africans for their fallen heroes. The focus of
this paper is on the first and second types of palavers whose nature as social
valves can only be grasped with an adequate understanding of the conception of
justice in a typical traditional African setting.
3.1-The conception of justice in the traditional African setting
The ‘Traditional African Setting’ is a nomenclature
that invites great obscurity. At times it is considered to be the pre-colonial
dispensation of most African societies. It is equally used by modern political
discourse and constitutional literature to refer to that realm of the colonial
as well as post-colonial societies that existed in parallel sway with the
modern, formal, Western or imported models of societal organisation and
regulation. In an authoritative endeavour, Fortes and Pritchard classify
African political groupings under two heads, namely, Group A and Group B
societies. The former relate to societies that operate perceivable centralised
administrative structures as well as judicial mechanisms that all deduced their
authority from a central pyramidal source of power manned usually by a King. An
example of such a society, so they opine, was the Ngwatos, the Bayankole and
the Zulu Kingdom under Shaka and his successors. Group B societies are smaller
societies with decentralised administrative structures that are usually depleted
of a discernible sole source of authority. Such societies included the Tellensi
and Tswana .[29] While the
indigenous political system of the Tale was basically disparate and founded on
a rotatory from of Government[30],
that of the Zulus revolved around the King. Regardless of the acute
centralisation of power in the Zulu kingdom, wise kings tolerated and accepted
majority decisions after protracted discussions. Such deliberations were
attended by the various chiefs of the kingdom. Direct participation was not
tolerated but the king consulted the perplexities and convivialities of the
people through their chiefs and if the common or popular will was disregarded
by the king, he was dethroned or simply put, killed. Such was the fate that
Shaka suffered from the hands of Dingane. While the people respected their
chiefs, there was no question that reciprocation was of course. Any one could
take part in the Chiefs’ Councils and assist in judging cases. Every one could
speak in the African palaver.[31]
In the King’s Council, indunas or councillors were given the opportunity to air their views and the
king spoke last. This allowed the other
councillors to freely voice their opinions without any fears of
contradicting the king’s word. Referring to the value of strictures in the Zulu
King’s Council, Gluckman intimates, inter alia,
The king was supposed to follow the advice
of his council. If he did not, it is said that the council could take one of
his cattle. The Zulu believed that the welfare of the country depended on the
king’s having wise and strong councillors ready to criticise the king.[32]
In other societies such as the Akim Kotoku of the Akan
,and the Barotse, participation in ordering the political sphere was neither
direct nor indirect in literary terms. Instead, the concerns of the people were
canalised and communicated to the king through a ‘Great Commoner’ or krontihene
(Akim Kotoku). The Ngambela
played such a role with
the Barotse.[33] In the
relatively acephalous societies direct participation in law-making and application
was keener. Allott, describing the Sotho law-making process, has noted that the
tribal assembly consisted of all adult males of the tribe meeting at the tribal
capital. Thus in both the Group A and Group B societies, individual
participation was either indirect in the large political units (as through and
engaged Great Commoner) or direct as in the smaller societies. Yet in both the
spirit of the African palaver was always used to articulate a sense of justice.
Modernism has infiltrated most of these systems and in a great many of the
cases only caricatures of the pristine structures remain. The erudite Hampaté
Bâ attributes this to the lack of a relay mechanism that would ensure the
continuity of the traditions from the sages to the youth who are ever-more
enticed by the marvels of modernism[34]at
the detriment of traditions and customs. Today, the current equation as between
traditionalism and modernism leaves many countries in a confusing systemic
troika: modern received institutions, contemporary customary law (written)
organs fashioned by received institutions in a bid to tame customs and finally,
the pristine and least-adulterated traditional paradigms in greed of depleting
self-sustainability. And to this last segment we now focus our attention.
Popular literature has it that justice in traditional
Africa was based on a common world view and that the major aim of dispute
settlement institutions was reconciliation and the re-establishment of social
harmony. Conciliation, mediation and negotiation through perpetual dialogue and
unbroken verbal intercourse were considered to be the engine for a common world
vision that tended to celebrate humanity[35]
and social perpetuity in gracious felicity. In their work entitled The Realm
of a Rain Queen (1943) Krige
and his wife have explored the political and jural systems of the Lovedus. They
write that “The genius of the Lovedu political system is its network of
reciprocities; the genius of the legal system is the procedure of
reconciliation and compromises; and both the political and legal systems
reflect the main emphases and purposes of the culture”. This aspect of
reconciliation in articulating a sense of justice is added yet another
dimension of conciliation (consent) by Bohanann who studied the Tiv of Nigeria
and concluded in his Justice and Judgment Among the Tiv (1957) that “the mbatarev (elders) suggest a settlement, and the
litigants must concur if the case is to be considered thoroughly successful.”[36]
However, writers such as Martin Chanock take issue with such conceptions of
justice in traditional African societies as represented by the workable
conciliatory dogmas which he describes as ‘Garden of Eden’ perception of what
obtained. He warns against generalisations regarding the popular appeal to the
non-violent notions of law in pre-colonial or traditional African societies.
This is because there were many people who resorted to violence in settling
scores in their acknowledgment of the lex talionis[37].
Be that as it may, there is solid consensus as to the
conciliation-friendly approach to justice as was articulated by the African
palaver which we now consider in greater profundity.
3.2 -The nature of the African palaver
In this sub-section, we consider the principles, the
end, the practical side and the effects of the African palaver. As we noted
above, three types of palavers can be distinguished, the irenic, the agonistic
and the virtual; the last of these being a modern tool to articulate the
others. In the lines that follow we address these issues seriatim while
underpinning some of the underlying values analogous to the democratic ideal as
delimited in part 1.
The principles that guided the African palaver settlement
institutions included tolerance, participation, social solidarity and equality.
Tolerance imposed a neutral ethic of plural triumph. Winners or losers,
victors or vanquished were not a cherished vocabulary in the communal lexicon.
In his book on the African palaver entitled La Palabre. Une juridition de la
parole (1997),
Jean-Godefroy Bidima explores the contours of tolerance as a fundamental
principle that is widely respected and applied in an African palaver. He
distinguishes between passive and active tolerance[38].
The former relates to the infallibility of the ego that can be translated into
the communicational difficulties between different perspectives and levels of
discourse (tribal, national (as between religious or economic entities) and
international as between the Western and African cultures). Meaningful palaver
without the recognition or imperfections is bland, empty and potentially
destructive. Active tolerance on the other hand adopts a more responsible
outlook of the ‘self’ and is actuated by empathising for the ‘other’. In this
light therefore, he notes that in the immediate aftermath of a palaver
settlement, while the ‘unsuccessful’ participant was required to solicit
forgiveness from the ‘successful’ participant through an act of contrition, it
was equally common for the successful participant to implore pardon from the community.
This was done in a bid to save the honour of the ‘unsuccessful’ participant.[39]
Participation was an important feature of the palaver. Irenic palavers
addressed issues such as birth (id est a determination of paternity) and the adoption of
positive decisions regarding social organisation. At times these necessitated
what Bidima describes as mini-palavers that allowed family members to speak
their mind. Participation in these and other major palavers was the very
essence of palaver, that is, participative participation. Participation was
between the subjects, the object and engaged or active onlookers[40]
whose intermittent applause strengthened the spirit of social solidarity.
In most traditional societies as that of the Sotho (supra) limited societal sizes facilitated
effective palavers. Then, the social bond was perceptible. Larger political
units as the Yoruba or the Ashanti also maintained a firm social nexus. Today,
most African countries are mainly plagued by the lack of a common social bond.
Sovereignty of self has superseded the collective spirit that has run amok. Yet
as Bidima notes most nations have not identified the importance of a palaver
that will reconstitute the social bond[41]or
‘le vivre ensemble’. He attributes this to a psychological disorganisation that
pulls Africa apart between the nostalgia of a past she will never recapture and
a present that shines for everyone but her. The African ‘conventional state’
cannot provide the mechanism to reach this ideal link because it is manned by
an alienated elite that is detached from the hard lives of the local masses.
Turning to tribes will be more chaotic as they are simply a force for gross
divisions. Building the social link, ipso facto, the democratic ideal may be
realised by the construction of a communicative space that is wide enough to
represent the diverse voices of the given space. One might wander as to what
Bidima proposes regarding the practical parameters that will constitute the
building blocks for the communicative space. The internet could be a possible
option in this regard. Yet the possibility is blurred by the fact that the
majority of Africans need bread and protein for survival rather than some
distant computer connections which have very minimal meaning to them. Wherefore
the importance of education and political will takes mandatory precedence. One
avenue to pursue in this regard could be the acceleration of the
decentralisation process. Governments could focus on establishing autonomous
local communities wherein citizens would be able to directly contribute in
articulating a form of democratic participation best suited to their needs.
Another principle of the African palaver was that of equality. Social
continuity was predicated on communal harmony itself. This means that efforts
were always made to usher the participants through the threshold of consensus.
The assumption that undercut the preceding was that the disputants were equally
amenable before the traditions and customs of the land.
The end of a palaver varied as a function of the subject of
the debate. The search for social harmony and peace constituted the goal of
every palaver be it irenic or agonistic. As already noted above (in the work of
Chanock), such a ‘Garden of Eden’ view of palaver was a rather simplistic myth
that blurred realities. All the same, and in a majority of the reported cases,
social harmony constituted the driving force behind the African palaver.
Eberhard and Sidi Ndongo opine that the import of the palaver was not so much
to say who was wrong as is was that of re-establishing harmony between the
participants. The purport therefore was not that of paying damages (as these
were only the means to an end) or levying sanctions, as the case might be.
Instead, the goal was that of renewing social bonds. Tersely put, the truth was
mobilised towards the realisation of peace.[42]
Forgiveness was vital in this respect and in this regard the Betis of Cameroon
literarily offered a hand of help to uplift the ‘fallen’ from the ignominy of
abysmal humiliation. In cases where the ‘unsuccessful’ participant had to
indemnify the ‘successful’ deponent with an animal the latter was expected to
slaughter the same and to share it with the former. This was done with goodwill
however protracted the practical side of the process.[43]
The practical side of the palaver or the debate itself was replete with much
symbolism and reminiscent of meticulous preparation. Most palavers in West
Africa were held under a large tree tree and this venue was carefully chosen.
It usually reflected the longevity hence potential continuity of the society.
As Saenger notes that such a tree served as a cosmic condenser. It was
sacrosanct and animated by mysterious forces. It reminded the officiating sages
of the wisdom of those who manned their seats before them. This instilled in
them the resolve of maintaining that tradition. The choice of this venue was
usually held sub rosa. More often than not it was attributed to a solar or
lunar eclipse. In a typical agonistic palaver, children, women and the initiated
youth were the first persons to assemble under the tree. Thereafter, the
petitioner, the accused, the elders and the sages (judges) made their way into
the assembly. The eldest of the sages then invoked the invisible spirits
through the process of libation. Libation entailed an offering of wine and cola
nut to the ancestors.[44]
This was followed closely by a recitation of the history of the land and past
events that provided similar facts to the dispute to be resolved. The
recantation was performed by a griot whose task it was to remind the assembly
that the dispute is surmountable today as it was yesterday. Saenger has
described this as a form of traditional precedents tracing the direction that
would guide present as well as future sages[45].
The role of the elders was to assist and guide the participants who will be the
ones to argue and negotiate a solution to their problem. Bidima notes that the
sages usually used two rhetoric techniques in their endeavour to guide the
participants. These included cataplexies and epiplexis. The latter was an
interrogative device of leading questions aimed at exposing some of the faults
of the speaker. The former was a technique used to pressurize the accused so as
to provoke in him an awareness of the seriousness and the stakes of the issue.
On the part of the petitioner and the accused they were expected to use
communicative as well as illustrative techniques to make a case. Proverbs and
gesticulations were thus assets in this regard. But as with the Betis of
Cameroon, speed in speech was not tolerated. The palaver ended with a decision
reached by the sages (usually after extensive consultation with public
opinion). In irenic palavers the decision could be a string of unwritten rules
to organize a specific activity. In agonistic palavers the elders usually
settled for a payment in kind or cash (as with the Winye[46]
of Burkina Faso) to the victim and to the sages in recognition of their efforts
in reconciling the disputants or deponents. In the Winye community of Burkina
Faso, the accused was given the chance to plead mitigating circumstances in a
bid to reduce the sentence. Moreover, the sages in this community had the
allowance to either grant or reject an appeal to a higher council of the
community.[47]After the
decision was reached the sages washed their hands in a purification ceremony
that marked the height of the reconciliation. Then tribute was paid to the
ancestors for the peace. Thereafter attention was diverted to the enforcers.
The decision of the palaver was expected to take effect as a matter of course. The possibility
that disputants could disregard the decision was not ruled out. Hence there
were enforcement institutions in most traditional state societies whose mandate
it was to effect the decisions of the palaver. In his study of the use of
legitimate force in traditional political institutions, Aletum has explored the
alacrity and expedience with which decisions of palaver and other political
decisions were enforced. In his referent societies in the Grassland areas of
Cameroon (Bafut, Bali, Nso and Kom) he identifies the organs that were charged
with the enforcement of the decisions in the event of default or utter
disregard of the same. The Kwifor (Bafut), Mundgum or Ngumba (Bali), Ngwerong
(Nso) and Kwifoyn (Kom) were the enforcement and implementation arms of the
societies.[48] Other
societies established enforcement mechanisms as a function of the amplitude of
the disputes forwarded to the Chief-in-Council.
In part three we have demonstrated that most of the
features of the African palaver coincided with the traits of the democratic
ideal. We also noted that these palaver institutions have been considerably
disregarded or minimally utilized by contemporary African states. In the next
part we review some of the attempts made in certain countries in recent years
to institute a national palaver. A couple of these have been successful (South
Africa and Benin). The other attempts have been but a timid mimicry of
unrealistic national aspirations. The Truth and (Reconciliation) Commissions of
South Africa, Nigeria, Ghana and Sierra Leone have all been variably used in
the said societies as a means of fortifying the search for the democratic
ideal. The paper addresses some of the strengths and weaknesses of these ad
hoc bodies (4.1). In most
of the Francophone African countries, the fall of the Berlin Wall and the
advent of multi-party politics heralded a wave of popular reclamation of
Sovereign National Conferences. With the benefit of hindsight, we argue that
with the isolated exception of Benin, most of these conferences failed in their
ambitious bid of harnessing a national palaver (4.2).
4 – Truth Commissions and Sovereign National
Conferences: Democratic stimulants?
Africa is replete with stories of inter-ethnic bitterness,
economic implosions, political segregation and divisive elitism, power sharing
failures, bubonic plagues, chaotic pandemics (AIDS) and other ills that stifle
economic development. As much as Africans could be their own problem they
nevertheless constitute the solution thereof. Yet awareness in this regard
appears to be minimal. But when push comes to shove, Africans themselves will
be the ones to call the shots. As we discussed above, there exists a wealth of
democratic principles and institutions of traditional Africa that remain
untapped. Most political regimes have voted for the least resistance option of
mimicking former colonial powers. The result as part two revealed has been
abysmal mediocrity for the most part. In countries such as South Africa,
Nigeria, Ghana and Sierra Leone, awareness as to the palaver approach to
democracy has been revealing. Conscious of the inadequacies in the efficacy of
received models at fortifying a waning social contract in African polities, the
said systems elected models akin to the African palaver. The similarities of
both are highlighted by the underlying democratic values of liberty, equality,
participation and justice which are all the driving forces of a productive
democracy, of the palaver paradigm and (as we hereby demonstrate) of the TRCs
and SNCs.
4.1- The modern palaver of the T(R)C as stimulant
of the democratic ideal
Truth (and Reconciliation) Commissions constitute one
of the major tools of transitional justice deployed in nations that have been
subjected to protracted socio-political malaise. In most societies burdened
with gross violations of human rights, political crises and societal stagnation
such bodies have enjoyed special appeal and increasing attractiveness. Given
that the experiences and demands of societies vary, so too have these bodies
reflected their diverse mandates. Yet their various tasks have revolved around
a common compass of consensus as to their vocation for a societal rebirth.
However, and for our present purposes, we use the term TC as a generic
denominator that embraces Truth and Reconciliation Commissions (South Africa
and Sierra Leone), National Reconciliation Commissions (Ghana) and National
Commissions of Inquiry for the Investigation of Human Right Violations as the
ones of Nigeria (Oputa Panel), Uganda, Zimbabwe and Chad. Henry Steiner defines
TC as a governmental organ intended to construct the record of society’s tragic
history.[49] Such a
terse definition of this concept (which is still in its embryonic phase of
articulation) conceals some of the fundamental attributes of these bodies
amongst which are the suggestion of recommendations for prospective reform and
in most cases, the task of reconciling past adversaries. Focusing on the moral
side of these bodies, José Zalaquett notes that TCs provide the moral
underpinnings that serve as the cornerstone of societies recovering from
political crises. He goes on to intimate that a TC as a conceptual initiative,
ought to serve as an invaluable platform for people to come together and ask
basic questions as to their esse and bene esse . Such questions include ‘Why are we together? What
values do we believe in? What is the best arrangement for justice?’ In this
manner nations collectively reflect on the ‘refounding’ of their common shared
values. Fateh Azzam on his part opines that they offer an opportunity for
political groupings to reclaim ‘the moral high ground’ by telling what actually
took place after a protracted period of societal cataclysm.[50]
In this manner therefore, focus is on the ‘telling’ highlighted by Archbishop
Tutu when he asserts that ‘As we have discovered, the telling has been an
important part of the healing’.[51]
Generally speaking, Truth Commissions aim at a clarification and
acknowledgement of the truth, contribute to a sense of justice and
accountability, outline institutional responsibility, recommend reforms and
above all they promote reconciliation.[52]
Such objectives have served to guide some of the operations of ‘truth search’
around the world thereby aiding these bodies to focus and streamline their task
rather than engage in a frolic of a ‘wild goose chase’ or what Geoffrey
Hawthorn aptly describes as ‘a random fishing expedition’.[53]
They are usually preceded by a discontinuity of political regimes and are normally
articulated in three stages described by Bryan Hehir as –catharsis, moral
reconstruction and the political processes of utilizing the truth. Despite the
strictures that have been levelled against such organs, their merit goes
farther afield and their functioning is commendable when compared with the
possible alternatives, for example, criminal prosecutions or (as we later
illustrate) Sovereign National Conferences. As we explore in detail (infra), some of these merits include cost
efficiency, individual amnesty-for-full disclosure, reconciliation and societal
harmony. The values that have underpinned the TCs in Africa - especially those
of South Africa and Sierra Leone - have included amongst others, participation,
equality, tolerance, restorative justice and social peace. All these values are
coincident with the values and principles of the productive or ideal democracy
and of the African palaver paradigm. We do not hereby suggest that South Africa
and Sierra Leone have attained the democratic ideal. Rather, we appeal to the
means used by these societies to break with a difficult past. In this process
both societies together with the Nigerian and Ghanaian operations embraced and
incorporated values that are worth considering if the democratic ideal is to be
realized.
The TRC of South Africa
In 1995 the South African Parliament passed the
Promotion of National Unity and Reconciliation Act[54]
creating the TRC after an intense process of negotiations on amnesty
provisions. While the National Party and the security forces bargained for a
general or blanket amnesty, others preferred a much more constricted option.
Compromise was struck for individual amnesty in exchange for full disclosure.
President Mandela endorsed its creation in the Government Gazette of 15th
December 1995 and its first meeting was held the next day at Bishopscourt, the
official residence of the Archbishop of Cape Town. Espousing its aims in a
speech in Parliament on May 17 1995 the Minister for Justice at the time,
Dullah Omar noted inter alia,
Its substance is the very essence of the
constitutional commitment to reconciliation and the reconstruction of society.
Its purpose is to provide that secure foundation which the Constitution
enjoins:’…for the people of South Africa to transcend the divisions and strife
of the past, which generated gross human rights violations…and a legacy of
hatred, fear, guilt and revenge.’[55]
The work of the Commission was divided into three
inter-related committees, namely the Human Rights Violations Committee charged
with the investigation of gross violations of human rights and atrocities; The
Amnesty Committee, and The Reparations and Rehabilitation Committee. Led by
Archbishop Desmond Tutu, the organ was made up of people who were selected
after a protracted process of inquiries and interviews as to their probity,
motivation, cares and concerns. The final list of members reflected the
geography as well as the texture of the South African civil and professional
society.[56]
Participation was a fundamental aspect in the hearings of the Human Rights
Violations Committee of the TRC. The Government together with security
services, the media, civil society, religious bodies and over 20,000 people
(who gave statements to the Commission either in public or in camera before the
Human Rights Violation Committee), participated fully in the proceedings of the
Commission. Equality was also perceptible. The political calling of an
individual was irrelevant. Perpetrators, be they members of the National Party
or the African National Congress, were equally amenable before the Commission
that had wide powers of search and subpoena. Focus was on restorative justice.
Tolerance and human empathy were milestones in the process. The latter is
evidenced by the centrality that the Commission accorded to the truth both from
the victims as well as the perpetrators. In his foreword to the Final Report
Archbishop Tutu recounts the agony of a victim and the crass nature of a
perpetrator in these revelations chronicled by the Commission;
They undressed me and opened a drawer and
shoved my breast into the drawer which they then slammed on my nipple! (or) I
drugged his coffee, then I shot him in the head. Then I burned his body. Whilst
we were doing this, watching his body burn, we were enjoying a braai on the
other side.[57]
The erudite prelate equally presents the difficult
hearings of Ms Winnie Mandikizela Mandela whose Mandela United Football Club
(M.U.F.C.) had provoked much ire from several quarters. Alleged actions of the
M.U.F.C. included the controversial murder of the 14 year old Stompei Seipei.
The main person accused for the murder of Stompei was Jerry Richardson the
former ‘coach’ of M.U.F.C. In his statements made before the Human Rights
Committee he said, inter alia,
…I slaughtered him. I slaughtered him like a
goat. We made him lay on his back and I put garden shears through his neck and
the garden shears penetrated to the back of his neck and I made some cutting
motion…I killed Stompei under the instructions of Mummy (Ms Mandela). Mummy never
killed any one, but she used us to kill a lot of people…She used us![58]
At times, such revelations provided more heat than
light. All the same Ms Mandela appeared before the Committee and apologized for
all that had transpired. These hearings revealed that every South African had
to bow before the altar of equality so as to rebuild a society founded on true
humanity or the spirit of umbuntu- or social harmony, amity or community spirit which is
the summum bonum for a
true African. Umbuntu
commands tolerance and forgiveness. As Archbishop Tutu intimates, ‘to forgive
is not just be altruistic. It is the best form of self interest. What
dehumanises you inexorably dehumanises me. Forgiveness gives people resilience,
enabling them to survive and emerge still human despite all efforts to
dehumanise them.’[59]
The Commission wound up and submitted its findings and recommendations amongst
which were the payment of reparations to victims and the constant endeavour by
the Government and the entire society to narrow the gap between the majority
black poor people of the townships and the minority rich white population. It
was indeed an illustration that the African palaver works not least because it
is relatively cost effective and is a propitious stimulant of truth revelation.
The criminal prosecution of Col. Eugene De Kock cost the Government a
stupendous sum of 1 million dollars, as at 1999. The cost of Gen.Malan’s
prosecution stood at an astronomical 2 million dollars.[60]
The TRC had a yearly budget of 18.5 million dollars- part of which came from
foreign donors. Res ipsa liquitur. Another merit of the Commission was its focus on the
victim rather that the accused or the perpetrator. Yet it was not immune from
criticisms. In a recent interview over the BBC the former president, F.W. De
Klerk noted that while the TRC facilitated the process of truth telling it fell
short of its reconciliation vocation[61].
Nobel laureate Wole Soyinka, on his part, castigated the TRC amnesty regime. In
his work entitled, The Burden of Memory, The Muse of Forgiveness, he notes that where there is pre-determined
exclusion of restitution, ‘…there remains a sense that the adopted formula for the harmonization of
that society erodes in some way one of the pillars on which a durable society
must be founded- responsibility’. Perceived as a call to move back to aimless
legalism the Commission’s Chairperson retorted
…it has become fashionable in some circles
to decry the provisions for amnesty…To repudiate amnesty now would be to tear
up the Interim Constitution. We forget too easily where we come from. Apart
from which if the criminal justice system cannot cope with the current crime,
how on earth do we expect it to process 33 years of the political crime during
the apartheid era?[62]
In a characteristic style, the prelate goes on to
caution
At the end of their conflicts, the warring
groups in Northern Ireland, the Balkans, the Middle East, Sri Lanka, Burma,
Afghanistan, Angola, the Sudan, the two Congos and elsewhere are going to have
to sit down together to determine just how they will be able to live together
amicably, how they might have a shared future devoid of strife, given the
bloody past that they have recently lived through. They see more than just a
glimmer of hope in what we have attempted in South Africa.[63]
This call was heeded to by many other African
countries including Sierra Leone, Nigeria and Ghana.
The TRC of Sierra Leone, the Oputa Panel of Nigeria
and the NRC of Ghana[64]
The people of Sierra Leone experienced a pernicious
imbroglio that lasted for about ten years. The war pitted Government forces
(Civil Defense Forces) led by President Tijan Kabbah against Foday Sankoh’s
Revolutionary United Front. It left the country bereft of some basic
institutions as well as a traumatized people. The signing of the Lomé Accord in
July 1999 guaranteed a lull in the feud that persisted intermittently right
into 2002. The Lomé Accord contemplated a TRC and in February 2000 the TRC Act
was passed by the legislature and signed by the president. The debates and consultations
that led to this piece of legislation were mainly led by the civil society. The
TRC was chaired by Bishop Joseph Humper and its membership reflected the
diversity of the society. The TRC Act mandated the Commission with the ability
to operate within a specific province of competence. It was charged (Article
6(1)) amongst others with the task of undertaking research, receiving
statements from victims and witnesses, and to holding public sessions toward
the aim of establishing an impartial historical chronicle of the violations of
human rights and international humanitarian law related to the armed conflict
in Sierra Leone from the commencement of the conflict in 1991 to the signing of
the Lomé Peace Agreement. The role of traditional leaders was important and
NGOs such as the National Forum for Human Rights and Manifesto 99 were charged
in this regard to fashion the kind of role that traditional leaders will play.
In most of the hearings that the TRC held out of Freetown traditional leaders
were invited and at the end of each week, a protracted solemn ceremony of
reconciliation was held. These were laden with traditional customs and
procedures that included the cleansing of perpetrators and the washing of hands
as a sign of atonement and contrition for the sinister acts. It was indeed in
the spirit of the African palaver treated in part three above. As Hayner
appositely puts it, ‘These were powerful events, although unfortunately limited
in number’.[65]Although
many people were initially reluctant to participate, the conduct of later
proceedings provoked the avidity (for participation) of many, including the
ex-combatants. It marked the acme of horizontal democracy and served as a
beacon of hope for a burgeoning and convalescing demos. It is hoped that the people will rise to
this unique occasion and articulate their opinions on the direction of the
country.
The Nigerian Commission of Inquiry for the
Investigation of Human Rights Violations was established in June 1996 by
President Olusegun Obasanjo. Led by Retired Justice Chukwudifu Oputa, it was
mandated with the task of investigating the human rights violations that
transpired from 1984 to 1999. This temporal dimension of the mandate was later
extended to retrospectively span the period 1966 – 1984. The hearings of the
Commission attracted much interest because of the personalities who appeared
before it as well as those who did not. The first group of persons included
President Obasanjo himself, Gen. Oladipo Diya and Maj.Hamza Al-Mustapha (the
Chief Security Officer of Gen. Sani Abasha). Those who were conspicuously
absent included former Presidents Ibrahim Babangida, Muhammadu Buhari and Abdul
Salam Abubakar. Participation and free speech was characteristic of the Oputa
Panel and in its Final Report it did make certain thoughtful suggestions.
However, has been criticized for the limited powers it had to subpoena the
former leaders whose testimonies were necessary if the truth was to be
ascertained on many issues that remain arcane. In this connection some
observers have derided it for being vulnerable to Nigerian political elitism.
Thus it will not be an understatement to qualify its score as modest. Yet the
values defended by Justice Oputa and his panellists need to be highlighted and
upheld. It made vital suggestions for the nation’s definite detachment from its
military past. It is hoped that this would provide a democracy-friendly
society.
The National Reconciliation Commission of Ghana was
inaugurated on 14 January 2003 at the Old Parliament Buildings where Nkrumah
moved for the adoption of the motion for independence from the British on March
6th 1957. Led by Justice K.E. Amua-Sekyi it was mandated to
establish an accurate and comprehensive account of human rights violations
perpetrated by state agents during the period of the country’s unconstitutional
regimes. The Commission has also been mandated via its committees to specifically examine the role played
by such bodies as the press, the legal profession, student movements, labour
unions as well as traditional rulers. It was attributed wide powers such as
that of subpoena and search. Yet it was not empowered to hand down sentences.
Critics of the body have it that the NRC was created by President John Kufour
as a mechanism to specifically target and deride the National Democratic
Alliance of former President Jerry Rawlings. They also point to the fact that
such bodies are usually preceded by periods of great national stress as was the
case of South Africa under apartheid or Sierra Leone that was wrapped in the
conflagration of a chaotic civil war. Ghana they believe, did not experience
such political malaise. However, the body has been hailed for the revelations
made in some of its hearings not least of which was the testimony tendered by
former President Rawlings when he appeared before the Commission on 12 February
2004. Other hearings like those of Emmanuel Adjayi have been laden with
emotions and it is believed that these will facilitate the reconciliation
process and shade more light on the killings in 1979 of three former heads of
state and the assassinations of three judges during the 1980s.
Truth Commissions are in their embryonic stage of
elaboration. Further empirical studies of such bodies as well as accompanying
conceptual benchmarks are highly recommended. The TRCs of South Africa and
Sierra Leone provided an apt public space for a battered demos to sufficiently participate in nation
building. In most of the French-speaking countries of Africa, the Cold War
ushered in a wave of inflated aspirations as to the political direction of the
various countries. Citizens of most nations in Francophone Africa were caught
in a frenzy of reclaiming Sovereign National Conferences. They believed that
such bodies would provide the necessary fora for constitutional revolutions
hence, apt democratic mutations. With the benefit of hindsight it is fair to
state that such aspirations were overstretched. While TRCs targeted specific
institutional or thematic concerns Sovereign National Conferences aimed at overhauling
the entire architecture of the state. Today, while Truth Commissions remain
attractive as an avenue towards the fortification of the ideal democracy in
many states, Sovereign National Conferences have virtually been confined and
relegated to the pages of history books. In the lines that follow we examine
some of these Conferences and the reasons for their debacle as democratic
catalysts.
4.1- Sovereign National Conferences (SNCs) and the
democratic ideal
The SNC constituted a platform for constitutional
discourse in many countries. Its peculiarity was the diversity in the texture
of its attendance lists as well as the amplitude of its themes most of which
aimed at establishing a novel direction for the country. A SNC was convened for
the first time in the post-Cold War era in Benin (February 1990). Its success
provoked a snowball effect as regards the creation of similar bodies around the
sub-continent. Between 1990 and 1993 SNCs were held in Congo, Niger, Mali,
Togo, Zaire and Chad. Gabon equally organized a National Conference with the
sole but fundamental difference that it was not sovereign.
From the foregoing, such bodies responded to two
categories, namely, those that were that were sovereign and those that were
not.[66]
One of the effects of this distinction is that while SNCs had the
extra-constitutional authority to revoke the constitution as was the case in
Togo, Niger or Benin, National Conferences lacked the Sovereignty to exercise
such powers. The case of Gabon is instructive in this regard. In the same
light, SNCs equally played a key role in formulating new constitutions as in
Benin, Congo, Mali, Zaire and Niger. In Cameroon, the adventure was rejected
outright by President Paul Biya. He exposed his desire to institute a ‘Large Débat
National’ rather than a SNC.[67]
Qualified by some critics as a ‘constitutional coup
d’état’ and as a ‘constitutional revolution’, the SNC was used as a tool in
strengthening the fight to secure multi-party politics in the said African
nations. It was perceived by many to be the forum for a true African palaver –
an instance that will attract the participation of the masses and give them a
say in the articulation process for a viable future. Considered to be the true
constitutional mass that will provide the unction to salvage a politically
destitute people, it was equally acclaimed for being the agency that will be
deployed by the governed to appropriate a hitherto detached public sphere.
Nevertheless, most of the initiatives were not immune from controversy. Raynal
has taken issue with the operation of SNCs on several counts. While deriding
their neglect of traditional institutions he examines the adverse effects that
these bodies had on the existing legal framework. He opines that these bodies
did not succeed in diverting their various legal systems from the convention of
simply imitating the colonial paradigms. As such, the problem of legal security
has been accentuated due to acute and persistent inadaptability.[68]
The author equally castigates the manner in which SNCs addressed the issue of
democracy. Not only did they disregard the question as to the apposite kind of
democracy needed, but much emphasis was placed on a misguided representative
democracy whose application is not uncontroversial in plural societies
characteristic of Africa. The effects of such as a cocktail of deficiencies was
that some of the leaders regarded as dictators simply disregarded the bodies
and fortified their grip on power. This was the case of Togo and Zaire where
the SNCs culminated in futile altercations. In those countries where they had
provoked regime change (Benin and Madagascar), the effects were much more
limited given that the former leaders were brought back at the helm of their
states (id est, Mathieu
Kérékou and Didier Ratsiraka, respectively).[69]
Moreover, the combat to secure multi-party politics that constituted a focal
vocation for most of these bodies soon turned into a farce. In Gabon for
example the ratio of party to inhabitants was 1:18000. Such a non-isolated political
dispensation provoked further divisions in many societies. Bidima[70]
on his part pours scorn on the SNC initiatives for a variety of reasons, to
wit, the non-secularity[71]
of the catholic oriented SNCs leadership, the hyper-exigent demands of some
actors, the neglect of the masses, the narrow dimension of the debates (for
example, exaggerated attention was accorded the trite and short term issue of
power succession), the exaggerated focus on the political community (the state)
to the detriment of the wider society and the deficiency in accessing the
passions, feelings and intimate choices of the people[72].
These and other reasons have been advanced for the failure of SNCs. It is not
the ambition of this treatise to be as comprehensive. However, it is trite noting
that the idea of a national forum such as the SNC was in itself a victory.
Although its foibles neutralized its minimal gains, it was nonetheless a
watershed in the political evolution of a country such as Benin.
Conclusion: The Way Forward –The gacaca model?
Political systems are not vacuums. They are not value
neutral. Private and public interests positions will always overlap. The merit
of a democratic political system is to draw an appropriate line between the
two. Such a line will preclude individuals from monopolizing the public sphere
for egocentric private interests in the name of representative democracy. We
have argued that given the complexity of the modern demos, representative democracy is here to stay.
Yet an ever-narrowing gap between the interests of the representatives and the
represented is an indispensable building block for the democratic ideal; an
ideal which we endeavoured to delimit in part one. In the second part we
referred to some of the consequences that are entrenched in political systems
that disregard the importance of reducing the representatives/represented gap.
We cited the examples of apartheid South Africa, the civil strife in Sierra
Leone and the successive military juntas in Nigeria and Ghana. Thereafter, the
treatise examined the African palaver system prided with its merit of
participative participation of the masses. It was noted that most of the
post-independent African countries did not sufficiently integrate the palaver
paradigm in the search for the democratic ideal (part three). Part four
reviewed some of the rare and modern occasions in which the palaver paradigm
was successfully and unsuccessfully used in catalyzing the search for an
apposite democratic model. Our major theses has been that there are specific
realizable values attached to the democratic ideal and that the African palaver
provides a paradigm prior to or coincident with the democratic ideal.
The way forward cannot be a dogmatic prescription. It
necessarily entails constant debate and dialogue, ipso facto, a guaranteed carte
blanche of constructive
participation for all the citizens of the given polis both in rule construction
and implementation. The current gacaca hearings in Rwanda can serve as an example for modern
African states to delve into their untapped cultural wealth. The legitimacy and
efficiency of gacaca[73] in terms of cost-minimization[74]
and expediency has been applauded. In these traditional courts morality,
justice and beliefs in the ancestors have all been used to canalise justice
from the grassroots; an apt bottom-up approach to law. It is a constant and
hallowed search to avert a perversion of the truth. Deponents are well aware of
the importance of the truth and of the authority of the invisible[75]
world of the ancestors. In the case of Rwanda, reconciliation has proven to be
difficult yet possible with the horizontal system of law as epitomised by the gacaca courts.
By classifying the offenders into categories[76]
and organising the hearings into different administrative levels, to wit, cell,
sector, commune and prefecture which are all coordinated and supervised by the
Department of Gacaca
jurisdictions of the Supreme Court, the Government has inadvertently
institutionalised a traditional mode of adjudication. However, such efforts
geared at incorporating the traditional paradigm into the modern legal currents
have been criticised by some theorists. Digneffe and Fierens have expressed
their concerns in this regard by noting that there are risks of perverting the
traditional gacaca and
the non-respect for due process.[77]
Another demerit of the entire venture is that while its discourses revolve
around the establishment of social solidarity it has ironically alienated and
estranged most of the alleged perpetrators who prefer to move to other
countries so as to avert sanctions. Thus they perceive institutionalised gacaca as a ruse by the Government of President
Kagame to legitimise its authority and vision qualified in certain circles as
totalitarian. Through the gacaca jurisdiction and its policy of creating compulsory
‘solidarity camps’, the Government has aimed at reconciling its people.
Nevertheless, and as Smis and Hoyweghen have intimated, reconciliation does not
necessarily flow from justice, worst still, from a justice perceived to be an
imposition.[78] In other
words ill-tuned justice that is enshrouded in political strategising may be
antithetical to reconciliation. They expose their preference for an open system
which can vouchsafe extensive participation for all. All the same, the stakes
could not be higher for the country. Ensuring social solidarity without
tolerating impunity is a daunting endeavour. If gacaca could adequately balance between the needs
of social solidarity and the fight against impunity, then it would have done great
service both to Rwandese and their Great Lakes neighbours of Burundi and The
Democratic Republic of Congo.
Another example that is worth considering is the
constitutional system of Botswana which provides for a House of Chiefs for her
traditional rulers. This assures indigenous people an active representation of
their cultural values cares and concerns at the national level. While the
chiefs transmit constructive modern ideas to their folk at the peripheries they
equally actuate the national conscience with sieved cultural inputs. The result
of this is that formal laws, for the most part, reflect the aspirations of the
town dweller as the villager. None the less, it is important to add the caveat
that the mode of choosing such traditional leaders ought to be inclusive. The
criteria should be transparent.
TRCs have also proven their worth. However they are
usually ad hoc bodies that do not aspire for infinite institutionalisation.
Such is the nature of their remit. All the same, the values upon which they
operate are instructive and should be capitalized upon by the society as a
whole. In other words the said values and principles ought to be integrated
into the larger framework of government institutions.
One of the major avenues through which the palaver
paradigm could inform the modern democratic process is education. Focus on
civic education and synchronised traditional practices in the curricular of
schools ought to reflect a parallel determination on the part of law-makers to
constantly search for a cordial marriage between modernism and African
traditional beliefs. The onus is equally on researchers to facilitate the task
of law-makers. It is regrettable that the absence of documents that chronicled
palaver proceedings in most African societies has been a fundamental weakness
in ensuring a relay of these practices hitherto preserved by griots. Yet it is never too late to start.
There is no silver bullet for the democratic ideal. It is an ongoing process.
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* The author is a Ph.D. student at the Vrije Universiteit Brussel in Belgium. He is equally a researcher at the Institute for European Studies, Brussels, and at the UN University – CRIS in Bruges .This work is an extension of the chapter on customary law in the final paper presented for an LLM in Legal Theory at the European Academy of Legal Theory, Brussels, - The Historical Foundations of African Law: Towards a Theory of Law For or Of Africa; What Ius Commune?, 2003, EALT. He is grateful to Pr Stefaan Smis for the comments made to the initial draft.
[1] Bâ Hampâté, A., Aspects de la civilisation
africaine, 1972,
Condé-sur-Noireau, Présence Africaine, p25.
[2] Bidima, J-G, La Palabre – Une juridiction de la
parole , 1997, Editions
Machalon, p75, where he opines that most African political systems are neither
dictatorships in the strict sense of the word nor are they true democracies. They can be situated between
these two extremes. Such systems are neither fully autonomous themselves nor
can they guarantee autonomy to their citizens.
[3] Such is the position
adopted by George Burdeau, La Démocratie, in Encyclopaedia Universalis, 1978, Vol 5, dirigé par Claude Grégoire, pp408/409.
[4] Fonlon, B.N., The Task of Today, Cameroon Publishing Co.Ltd., Victoria, p.8.
[5] See generally Black’s
Law Dictionary, 1979, 5th
edition, St. Paul Minn., West Publishing Co.
[6] Burdeau,,
op cit, p.409.
[7] Op cit, p.12.
[8] Laski, H., A Grammar
Of Politics , p.142 cited by
Fonlon (supra).
[9] Kamto, M., Pouvoir Et Droit En Afrique
Noire ( Essai sur les fondements du Constitutionalisme dans les Etats d’Afrique
Noire francophone), 1987,
Librairie Générale de Droit Et de Jurisprudence, Paris, p.498.
‘’ Regardless of the admiration for agora by men of 20th century, it is clear that the
Nation-State is not the Greek City-State and it is also clear that
representative democracy aptly corresponds to the same structure…”
[10] Op cit,
p.12.
[11] Burdeau, op cit,
p.409. The author makes an interesting comment on the nature of liberty- it is
not a pre-existing constant that necessitates or occasions protection. Rather,
it is a faculty to be conquered, pp. 409/410.
[12] See generally Fonlon,
B.N., op cit, p.24.
[13] Beck, B., in ‘A
Survey of Switzerland- A Special Case’, The Economist,
February 14 2004, pp.5-10.
[14] See generally Smis,
S., A Western Approach to the International Law of Self-determination:
Theory and Practice, 2001,
VUB, Revue de Droit Africain
N°21/2002.
[15] Risser, D., Democratic
Process in The Philosophy
of Law-An Encyclopaedia ,
1999, Christopher Berry (ed.), Garlang Publishing Inc. pp. 193-194.
[16] See generally
Habermas, J., Between Facts and Norms: Contributions to a Discourse Theory
of Law and Democracy.
Translated by William Rehg, Cambridge, M.I.T. Press, 1996.
[17] Robert Guest, The
Economist, A Survey of Sub-Saharan Africa, January 17 2004, p.5, citing Arthur Goldsmith, Risk, Rule and
reason in Africa, Harvard
University.
[18] Botswana is the only
African country that has experienced unbroken democracy since independence. As
we argue later one of the main reasons for the success of democracy in Botswana
is the deliberate endeavor by the people to marry modern institutions and
values of democracy to their traditional values and institutions. The country
has been witness to unrivalled ‘democratic enculturation’, a concept deplete in
most of the other systems.
[19] There appeared to be a
broad consensus as to the attainment of democracy yet the means put in place
towards that end was grossly dissimilar as a function of whether or not the
country was to tailgate Marxist-Leninism or Western capitalism. Socialism won
many adherents amongst who were Sékou Touré of Guinea Al-Nasser of Egypt,
Francis Kwame Nkrumah of Ghana, Julius Nyerere of Tanzania and Tom Mboya of
Kenya. The latter noted that
‘Socialism is the permanent tradition of our people’. See generally
Ki-Zerbo, J., Mazrui, A., and Wondji, Ch., Construction
de la Nation et Evolution des Valeurs Politiques in Histoire Générale de L’Afrique, Vol VIII, L’Afrique Depuis 1935, Mazrui (ed.), Edition UNESCO, p.524.
[20] Since independence,
Nigeria has been ruled by four civilian Presidents, namely, Nnamdi Azikiwe
(with Tafawa Balewa as Premier), Shehu Shagari, Ernest Shonekon and Olusegun
Obasanjo (himself a former military ruler).
[21] First, by the Germans (1890-1916) and then by the Belgians
(1916-1962).
[22] See generally,
Ayittey, Africa in Chaos, 1998, RR Donnelley & Sons, p.55
[23] Ibid, p.57
[24] a)Encarta World
English Dictionary, 1999, St.
Martin’s Press New York, p.1299—“A conference between different parties
(humorous); an idle flattering or time-wasting talk; a conference
between explorers or colonialists and local African officials, usually
requiring the use of a pidgin language”. b) The Oxford English Dictionary, 1933, The Clarendon Press, vol , p. 390. --“
Palaver appears to have been used by Portuguese traders on the coast of Africa
for a talk or colloquy with the natives (1735); to have been picked up by
English sailors (1771) and passed from nautical slang to colloquial use; it is
a talk, parley, conference, discussion. Chiefly applied to conferences with much
talk, between African or other uncivilized natives and traders or travelers.
c) Webster’s Third New International Dictionary of English Language Unabridged, 1976, Babcock, Ph., (ed.), G &C Merriam
Co. Publishers, p1629—“It means an often prolonged parley, usually
between persons of different levels of culture and sophistication ( as between
a 19th century European trader and natives of the West African
coast)”.
[25] Bidima, op cit, “...la réduction d’un
conflit par le langage, la violence prise humainement dans la discussion”
pp.10-11 .
[26] Von Saenger, A., Sagesse Bantou, 1988,
http://www.avs-philo.org/bantou.php
[27] See Kiyindou, A., L’internet ou le
nouvel arbre à palabre: Contribution à la réflexion sur la reconstruction
virtuelle du lien social,
2003, CERIME, Université Robert Schuman Strasbourg.
[28] It has been used by
Africans back home as a means of
informing those abroad of the development needs in their countries. As such The
Diaspora of Uganda and Ghana contributed an income inflow of 400 million
dollars and 450 million dollars respectively for both countries in 2000,
Kiyindou, op cit, p.9.
[29] Fortes, M., and Evans-Pritchard,
E.E., African Political Systems, 1958, Oxford University Press.
[30] Fortes, M., The
Political System of the Tellensi of the Northern Territories of the Gold Coast in Fortes and Evans-Pritchard, 1958, op cit,
p257.
[31] Gluckman, M., The
Kingdom of the Zulu of South Africa, in Fortes and Pritchard, op cit pp.42-44.
[32] Op cit,
p33.
[33] See the work of Allott, A., The People As Law-Makers: Custom,
Practice, and Public Opinion As Sources of Law in Africa and England, in Journal of African Law , Allott,
A., and Morris, H.F. and Roberts, S.A., (eds), 1977, Vol. 21, N°1, School of
Oriental and African Studies, University of London.
[34] Bâ Amadou Hampaté, Aspects de la
civilisation africaine,
1972, Coné-sur-Noireau, Présence Africaine, pp.27-27, cited by Eberhard, Ch.,
and Aboubakri Sidi Ndongo, Relire Amadou Hampâté Bâ pour une approche
africaine du Droit. Images réfléchies de la ‘pyramide’ et du ‘réseau’ , 2001, R.I.E.J.
[35] See generally,
Eberhard and Ndongo, op cit, p8; Kiyindou , op cit and Bidima, op cit, p20.
[36] Cited in Gluckman,M., Politics,
Law and Ritual in Tribal Society, 1977, Basil Blackwell Oxford and note the criticisms he levels against
both authors as to the benchmarks and analogies of discourse made in their
research.
[37] Chanock, M., Neo-Traditionalism
and the Customary Law in Malawi,
1978, N°16, African Law Association in America, Inc., and the African Studies
Centre, UCLA.
[38] Bidima, op
cit, pp40-42.
[39] Ibid, p.31.
[40] Ibid,
pp21-23.
[41] Ibid, pp.43-44. As
will be noted below the SNC of Benin and the TRC of South Africa are both
bodies that endeavoured to shape the social bond of the respective countries.
With the benefit of hindsight, these experiences have proved to be isolated
islands in a turbulent sea of political complacence.
[42] Bidima, op cit, p19. ‘La palabre se sert
du vrai pour aboutir à la paix’.
[43] Ibid, p.21.
[44] Our experiences with
the Nsos in the North West Province of Cameroon exposed us to one of such
palavers whereby a cock was necessary. The eldest sage in the community took
the cock, muttered a string of esoteric words wherefore the bird shuddered in a
spasm and muted on command without being pressured by violence. Its silence
indicated the self-abdication of its blood to the ancestors. These in turn, it
was believed, were to restore social peace once their ire had been mellowed by
the blood of the bird together with palm wine and cola nuts.
[45] Saenger, 1988, http://www.avs-philo.org/bantou.php,
op cit.
[46] Jean-Pierre Jacob, Trancher la Justice
chez les Winye, Gurunsi du Burkina Faso, in Droit et Cultures, N°19, 1990, Erasme.
[47] Ibid,
p.238.
[48] See generally, Aletum, T.M., The use of legitimate force in
traditional political institutions in Revue Juridique Africaine N°2, 1990, Maurice Kamto and Paul-Gérard Pougoue (eds.).
[49]See generally, Truth
Commissions: A Comparative
Assessment. (An Interdisciplinary Discussion Held at Harvard Law School , May
1996, organised by the Human Rights Programme, Harvard Law School (HRP-HLS) and
the World Peace Foundation (WPF). This instructive debate can be accessed through the
website;
http://www.law.harvard.edu/programs/hrp/Publications/truth1.html
[50]See generally HLS-WPF Discussions, op cit.
[51] http://:www.niza.nl/trc/1chap1.htm, foreword to the Final Report of the South African TRC, p.8
[52] Hayner, B.P., Unspeakable
Truths. Facing the Challenge
of Truth Commissions, 2002, Routledge New York, pp.24-30.
[53] HLS-WPF Dicussions, op cit.
[54] It is significant to note that like the TRC of
Sierra Leone, that of South Africa was created by the Assembly and as such
enjoyed better legitimacy than the Commissions of Chad, Uganda, Zimbabwe or
even Nigeria that were created by an act of the Heads of state of the said
countries. It is equally very important to refer to the enormous inputs of
certain international actors in promoting the TRC of South Africa and Sierra
Leone (notably the assistance of the UN Human Rights Commission) as well as the
one of Uganda.
[55] http://www.niza.nl/trc/1chap4.htm
[56] Members included
Archbishop Desmond Tutu (Chair), Dr Alex Boraine (Deputy Chair; jurist and
influential religious authority- once served as the youngest president of the
Methodist Conference), Mary Burton (Human Rights activist), Chris Jager (Senior
Counsel and Judge), Rt. Rev Bongani Finca, Ms Sisi Khampepe (Labour Rights
lawyer), Richard Lyster (Human Rights lawyer), Mr Wynand Malan (lawyer), Dr
Khozo Mgojo (President of South African Council of Churches), Ms Hlengiwe
Mkhizen (Psychologist), Mr Dumisa Ntsebeza (Human Rights lawyer), Dr Wendy Orr
(Medical Doctor), Denzil Potgieter (Senior Counsel-lawyer), Dr Mapule Ramashala
(Clinical Psychologist), Dr Fazel Randera (Medical Doctor), Ms Yasmin Sooka
(lawyer and President of the World Conference on Religion and Peace who later
served on the TRC of Sierra Leone), Ms Glenda Wildschut (Psychiatric Nurse and
President of the Centre for Victims of Violence in Cape Town),Tutu, D., No
Future without Forgiveness,
1999, Rider London, p.66.
[57] See http://www.niza.nl/trc/1chp4.htm
[58] Tutu, D., No Future
without forgiveness, op cit,
p102
[59] Op cit,
p35.
[60] Ibid, p27.
[61]BBC World Service, radio program- The
Interview, April 10 2004.
[62] See
website, op cit.
[63] Tutu, D.,
1999, p.229
[64] The
National Reconciliation Commission.
[65] Hayner, P., The Sierra Leone Truth and Reconciliation
Commission: Reviewing the First Year, 2004, Case
Study Series, International Centre for Transitional Justice ICTJ, p5.
[66] See generally, Bidima, op cit, Kamto M., Les
conferences nationals africaines ou la création révolutionnaire des
constitutions, in, La
création du droit en Afrique, Darbon D., et Gaudusson J., (eds), 1997, Editions Karthala, Paris. See
also, Raynal J.J., Conférence nationale, Etat de droit et démocratie.
Quelques réflexions à propos d’une occasion manqué in Darbon et Gaudusson, op cit.
[67] Sindjoun L., et Owona Nguini E.M., Politisation
du droit et juridicisation de la politique : l’esprit sociopolitique du droit
de la transition démocratique au Cameroun, in Darbon et Gaudusson, op cit, p.225.
[68] Raynal J.J., op cit, pp.163-164.
[69] See Bidima,op cit, p.73.
[70] Ibid,
pp.65-77.
[71] In Benin, Gabon, Congo, ex-Zaire and Togo they were all headed by Roman Catholic Bishops.
[72] The author describes
this as ‘affectivity’ that has been considerably eroded by much emphasis on
‘effectiveness’, op cit, p.72.
[73] See generally Kritz
N.J., Where We Are and How We Got Here: An Overview of Developments in the
Search for Justice and Reconciliation, in, The Legacy of Abuse. Confronting the Past, Facing the Future,
2002, The Aspen Institute,
Alice Henkin (ed) p.38
[74] As at April 2004 the
International Tribunal for Rwanda had held 18 trials with the average cost of
each trial pegged at 50 million dollars. Most Rwandese have derided the
tribunal seeing it as a white elephant project that is diverting stupendous
sums of funds (18 million dollars per annum as budget) that could otherwise be used in the
fight against AIDS and in the provision of social services.(See World Today; vol 60 N°4 April 2004, Genocide Goes On, Colin Waugh, p.19-20)
[76] Smis, S., and Hoyweghen, S.V., The Re-establishment of the
Traditional Gacaca Jurisdiction in Rwanda: A step forward to reconciliation? Paper presented to the African Studies Association of the UK
Biennial Conference (ASAUK), 11-13 September 2000, Trinity College, Cambridge,
UK, p.3. Category I includes planners and leaders who can be sentenced to
death; category II includes authors and accomplices who can be subjected to the
penalty of life imprisonment; category III relates to those suspected of bodily
harm or injury and category IV deals with those who committed crimes against
property.
[77] Digneffe, F., et Fierens, J. (eds),
Justice et gacaca. L’expérience rwandaise et le génocide, 2003, Presses
Universitaires de Namur, p.134
[78] Smis and Hoyweghen, op cit, p.9