The election of Uhuru Kenyatta as Kenya’s president means that – barring any successful court challenge by Prime Minister Raila Odinga – Africa will now have two serving heads of state indicted by the International Criminal Court (ICC).
The other is Sudan President Omar al-Bashir.
Many see the outcome of the Kenyan elections last week as reflecting, in part, a protest by the majority of Kenyan voters against interference by external forces in the nation’s political affairs.
Whatever the case may be, the reality is that, going forward, Africa and the rest of the world will have to negotiate a difficult minefield in interstate relations.
At the centre of all this is the question about the management of post-conflict political processes, and the balance that should be struck between justice and reconciliation.
Are these two ideals mutually exclusive?
This is one of the key questions that inform the Mapungubwe Institute for Strategic Reflection (Mistra) annual lecture, which will be presented by Professor Mahmood Mamdani, the director of the Makerere Institute of Social Research in Uganda.
In the words of Mamdani, from an abstract of the lecture: “Whether in the Balkans (southeast Europe) or in Rwanda or Congo, international criminal trials are the preferred response to extreme violence.
“That precedent is that violence must be criminalised without exception, its perpetrators identified and tried in a court of law. I shall propose an alternative way of thinking of mass violence as political rather than criminal.”
When South Africa was trying to devise a process on how to deal with its past, the interlocutors looked at two seminal experiences: the Nuremberg Trials in Germany and the experience of the Chilean Truth Commission.
One of the key critiques of the two, and of other attempts at arriving at transitional justice, was that they were too prosecutorial in their approach.
South Africa wanted to combine a search for the truth, which had secondary prosecutorial elements attached to it, with a healing process that emphasised reconciliation.
There have been many critiques of South Africa’s approach via the Truth and Reconciliation Commission (TRC), including those who claim that many of the perpetrators literally got away with murder.
On the other hand, the compensation of the victims was never adequately addressed. Hence the sense that South Africa has not yet dealt adequately with the past.
The ICC is the inheritor of these and many other attempts by the global community to address the issue of human rights violations.
The key question is whether it has succeeded in this effort, both as a platform to punish criminal conduct and as a deterrent.
How fundamentally relevant are the lessons of the Nuremberg Trials in the 21st century? Or is all “politics” in the end universal, irrespective of the period.
The law that brought the ICC into being (also named the Rome Statute) came into effect on July 2002. And the?32 African nations that signed it represent the largest regional bloc. South Africa is a proud signatory.
The question needs to be posed, though, whether South Africa’s management of the negotiated transition, including the TRC process, fully accorded with the principles that were later to inform the statute. Is there a nuance in the nation’s approach from which universal lessons can be drawn?
»?Martin is head of the humanities faculty at Mistra
»?Mamdani will present the Mistra annual lecture at Wits tomorrow