African human rights law journal



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AFRICAN HUMAN RIGHTS LAW JOURNAL

(2013) 13 AHRLJ 254-280

The tensions between power sharing, justice and human rights in Africa’s ‘post-violence’ societies: Rwanda, Kenya and the Democratic Republic of the Congo


Sadiki Koko*

Researcher, Institute for Dispute Resolution in Africa (IDRA), College of Law, University of South Africa



Summary

In recent years, power sharing has been used in Africa as a strategy to ensure national unity and social cohesion in a context of extreme ethnic polarisation (Rwanda), as a peace-making tool designed to end a stale- mated civil war (Democratic Republic of the Congo), and a mechanism to overcome a situation of inter-community violence and socio-political instability created by the mishandling of an electoral process (Kenya). This article argues that power sharing as a result of a stale-mated civil war and a mishandled electoral process tends to undermine the pursuit of justice and the protection and promotion of human rights; and power sharing in the context of a civil war that ended in a military victory is usually unbalanced and promotes victors’ justice.
1 Introduction
A characteristic of the wars that have plagued Africa since the end of the Cold War is the internal nature of these wars. Yet, this trend is not new in so far as Africa is concerned. In fact, interstate wars in post- colonial Africa have been rare, the three exceptions being the wars between Somalia and Ethiopia (1977-1978), between Uganda and

* BA (Hons) (Kinshasa), MCOM (Conflict Resolution and Peace Studies) (KwaZulu- Natal); sadikkf@unisa.ac.za. This article is a revised version of a paper presented at the International Expert Seminar on Law, Power Sharing and Human Rights held at the University of Antwerp, Belgium, 10-11 May 2012.



Tanzania (1978-1979), and the Ethiopian-Eritrean war (1998-2002).1



The post-1990 context is dramatically different from that of the

previous period as the end of the Cold War has diminished the

incentives of the major powers to prevent or, at best, contain armed

conflicts in the developing world, including in Africa. As a

consequence, the number of civil wars in Africa quickly soared and, with it, attempts to resolve them. According to Annan:2


In 1996 alone, 14 of the 53 countries of Africa were afflicted by armed conflicts, accounting for more than half of all war-related deaths worldwide and resulting in more than 8 million refugees, returnees and displaced persons.

As elsewhere in the world,3


[t]he pattern of war terminations in sub-Saharan Africa has changed substantially over the past two decades ... The number of state-based conflicts terminating in victories has decreased sharply, while the number ending in negotiated settlements has risen.
Negotiated settlements to end civil wars usually involve power sharing, which has since emerged as the preferred mechanism to end civil war in Africa. However, as has become so evident, the use of power sharing has not been limited to civil war situations. In both Kenya and Zimbabwe, power sharing has been used as a tool to break the deadlock created by contested electoral processes. Still, in the case of post-1986 Uganda and post-1994 Rwanda, power sharing was used by the victorious National Resistance Movement (NRM) and Rwandan Patriotic Front (RPF) as a strategy aimed at preserving a degree of national unity and fostering some kind of social cohesion in the context of state collapse as a result of either prolonged periods of instability (Uganda) or widespread identity-related killings (Rwanda).

This article seeks to investigate the tensions between power sharing, on the one hand, and justice and human rights, on the other, in African societies emerging from protracted violence, specifically Rwanda, the Democratic Republic of the Congo (DRC) and Kenya. The central argument is that, although power sharing as a peace- making tool or a mechanism to foster national unity and social cohesion is likely to contain violence, it raises tensions in so far as the pursuit of justice and the protection and promotion of human rights are concerned. Furthermore, while power sharing as a result of a stalemated civil war and a mishandled electoral process tends to undermine significantly the pursuit of justice and the protection and promotion of human rights, power sharing in the context of a civil


1 O Furley & R May ‘Introduction’ in O Furley & R May (eds) Ending Africas wars: Progressing to peace (2006) 3.

2 K Annan ‘The causes of conflict and the promotion of durable peace and sustainable development in Africa. A report of the United Nations Secretary- General’ (1998) http://www.un.org (accessed 13 February 2012).

3 A Mack & T Cooper ‘A new peace in Africa?’ (2008) 4 Conflict Trends 9.

war ended in a military victory is usually unbalanced and promotes victors’ justice.

Before turning to the specific country discussions, it is necessary to clarify the concept of power sharing and its links to justice and human rights.


2 Power sharing: Clarifying the concept
Power sharing and the different mechanisms designed for its operationalisation, namely, ‘government of national unity’, ‘inclusive government’, ‘coalition government’, ‘grand coalition’, and so forth, have varied meanings. ‘Two, actually separate, strands of research use the term “power sharing”, often without recognising the differences

in terms of democracy and conflict management.4

The first strand, labelled the ‘consociational democracy’ school, is concerned with practical strategies of distributing power among socio-political stakeholders in divided societies as a means of guaranteeing adequate group representation and fostering democratic participation. It can be traced back to Lijphart’s 1968



article on typologies of democratic systems’.5 Lijphart was concerned

with addressing the exclusion of minorities brought about by a

rigorous application of liberal democracy principles and rules in

ethnically- and/or religiously-divided societies. He thus proposed the

concept of a consociational democracy, a group-based form of democracy, with its four main components, namely,6


a grand coalition of the political leaders of all significant segments of the plural society ... the mutual veto or ‘concurrent majority’ rule, which serves as an additional protection of vital minority interests ... proportionality as the principal standard of political representation, civil service appointments, and allocation of public funds, and ... a high degree of autonomy of each segment to run its own internal affairs.

According to Jarstad,7


[w]here people vote along ethnic lines, political parties representing ethnic minorities have no chance of ever forming a majority, and shifting majorities in parliament are therefore unlikely.
Under such conditions, majority rule is not only undemocratic, but also dangerous; it spells majority dictatorship and civil strife rather than democracy.8

4 AK Jarstad ‘Power sharing: Former enemies in joint government’ in AK Jarstad & TD Sisk (eds) From war to democracy: Dilemmas of peace building (2008) 108.

5 A Lijphart ‘Typologies of democratic systems’ (1968) 1 Comparative Political Studies

3.

6 A Lijphart Democracy in plural societies: A comparative exploration (1977) 25.

7 Jarstad (n 4 above) 110.

8 A Lijphart Patterns of democracy: Government forms and performance in thirty-six countries (1999) 32-33.

As can be deduced from the arguments above, Lijphart’s concept of power sharing applies to already-liberal democratic societies. At most, it could be extended to others that voluntarily and peacefully embarked on the process of crafting governance institutions consistent with the core values, principles and practice of liberal democracy. ‘Although Lijphart takes power sharing and

consociationalism as synonymous’,9 his concept of consociationalism

does not necessarily cater for inclusive governance mechanisms

emerging as a result of internal wars ending in stalemates, especially if

such inclusive governance mechanisms were not based on social

identity specificities.

The second strand of research relating to power sharing is rooted in the field of conflict management. ‘In this discourse the main function of power sharing is to end violence.’10 This practice of power sharing

emerges in the context of civil (armed) conflict characterised by the inability of either party to defeat the other militarily. In such contexts, parties generally refer to a neutral and impartial third party to facilitate dialogue and possibly help them reach a middle ground as they commit to resolving their dispute through non-violent means. The rationale behind this practice of power sharing is the understanding that, ‘[b]y dividing power among rival groups during the transition, power sharing reduces the danger that one party will become

dominant and threaten the security of others.11 This is relevant as

‘exclusion, rather than greed alone, is the key factor behind most African conflicts’.12 In this context, it becomes easy to understand why, with its emphasis on the inclusion of non-state stakeholders

(rebel groups, political parties, civil society) in transitional mechanisms, power sharing is commended as ‘a recipe for peaceful cohabitation’.13

This article focuses on the conflict management dimension of power sharing. It examines the practice of power sharing as a result of armed conflict or a contested electoral process. In contrast to the consociational approach that is both preventive and built on a long- term perspective, the conflict management dimension of power sharing is reactive and temporary. It seeks to address the problem of power illegitimacy through accommodative transitional mechanisms entrusted with conducting popular consultations and elections for institutional renewal in ‘post-war’ or ‘post-violence’ societies. Provisions of power sharing in this approach are generally derived from peace (or political) agreements signed by parties and, depending on a specific conflict situation, ‘[guarantee] the

9 R Lemarchand ‘Consociationalism and power sharing in Africa: Rwanda, Burundi, and the Democratic Republic of the Congo’ (2006) 422 African Affairs 106.

10 Jarstad (n 4 above) 108.

11 K Papagianni ‘Power sharing, transitional governments and the role of mediation’ (2008) CHD Background Papers 42.

12 Lemarchand (n 9 above) 2.

13 As above.

participation of representatives of significant groups in political decision making, and especially in the executive, but also in the legislature, judiciary, police and army’.14 They have ‘a demonstrated

ability to provide a sense of security to former combatants facing the immediate prospect of working together peacefully after a severe conflict such as a civil war’.15

However, it has been argued that the ‘[i]nclusion of warring parties in a power-sharing arrangement does not always end violence’.16

Furthermore, by excluding the general public from matters affecting national life directly, power sharing is not only elitist but also tends to undermine democratic processes. In countries such as Liberia and the DRC, where the distribution of power encompassed the economic sector (public corporations), power sharing turned out to be an impediment to the countries’ economic recovery. Still, by providing

rebels with a share of state power, the practice of power sharing17


creates an incentive structure would-be leaders can seize upon by embarking on the insurgent path as well. As a result, and irrespective of their effectiveness in any given case, power-sharing agreements contribute to the reproduction of insurgent violence.
In the cases of Liberia and Sierra Leone, former Liberian transitional President Amos Sawyer argues that power-sharing governments established to end civil war in these two countries were ‘substantially, if not totally, controlled by armed groups whose leaders could hardly find in such arrangements sufficient incentive to blunt their greed and

ambition’.18 This means that by bringing together diverse groups

with diverging interests, power-sharing arrangements succeed with

regard to inclusiveness without necessarily guaranteeing the

effectiveness of these hybrid mechanisms.

Lastly, perhaps the most important discussion regarding power sharing as a peace-making tool relates to its relationship with justice and human rights, on the one hand, and peace and reconciliation, on the other. The protection and promotion of human rights are regarded as building blocks in the emergence of a justice-based society. Justice can be defined as a set of ideas, values and practices seeking to ensure that all individuals forming part of a society are treated in an equal, fair, deserving and righteous manner. Justice, according to Kofi Annan, is ‘an ideal of accountability and fairness in


14 Papagianni (n 11 above) 42.

15 Hoddie & Hartzell cited by A Mehler ‘Peace and power sharing in Africa: A not so obvious relationship’ (2009) 432 African Affairs 108 454.

16 Jarstad (n 4 above) 117.

17 Mehler (n 15 above) 455.

18 A Sawyer cited by Mehler (n 15 above) 463.

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