African human rights law journal

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the protection and vindication of rights and the prevention and punishment of wrongs’.19

Although the ideals of human rights and the promotion of justice seem to be shared by all human beings in different societies, practice does not always match theoretical pronouncements. In the case of societies emerging from civil war, the pursuit of justice and the protection and promotion of human rights raise the philosophical question of the feasibility of peace and reconciliation and the avoidance of relapse into violence. In its negative and positive conceptualisations, peace is regarded not only as the absence of direct violence, but also a societal condition that emphasises the resolution of inter-personal and inter-community conflicts through peaceful means. For its part, reconciliation is a complex process that aims at bringing former conflicting parties together in a mutual recognition of their misdeeds, their readiness to forgive one another and their commitment to transform their relationships. It entails ‘finding a way

to live alongside former enemies’.20

So, the main question in societies emerging from protracted civil conflicts revolves around the extent to which justice and human rights can be pursued and protected without jeopardising the peace and reconciliation processes. As Järvinen puts it, ‘[o]ne of the greatest challenges to any post-conflict society is how to deal with past crimes

and other human rights abuses’.21

In much of the literature relating to the question of justice in post- conflict societies, emphasis has been put on transitional justice as the most suitable perspective of justice that ought to be pursued. Transitional justice can be defined as ‘the full range of processes and mechanisms associated with a society’s attempts to come to terms with a legacy of large-scale past abuses, in order to ensure

accountability, serve justice and achieve reconciliation’.22 Its

mechanisms are both judicial (trials) and non-judicial (truth and

reconciliation commissions, amnesties, parliamentary or other

inquiries, lustrations, reparations). Due to this combination of judicial

and non-judicial mechanisms of pursuing justice, transitional justice is

viewed as less antithetical to peace and reconciliation in post-conflict

societies than a justice perspective exclusively focused on retributive

mechanisms. Yet, it ought to be admitted that the balance between

judicial and non-judicial mechanisms of post-conflict transitional

justice is deemed to vary from one society to another, taking into

consideration among other things the specific nature of a conflict

and the mode of its termination. The next three sections analyse the

19 K Annan The rule of law and transitional justice in conflict and post-conflict societies.

Report of the Secretary-General (2004) 4.

20 D Bloomfield ‘Reconciliation: An introduction’ in D Bloomfield et al (eds)

Reconciliation after violent conflict: A handbook (2003) 12.

21 T Järvinen ‘Human rights and post-conflict transitional justice in East Timor’ (2004)

UPI Working Papers 47 36.

22 Annan (n 19 above) 4.

dynamic relationship between power sharing, justice and human rights in Rwanda, the DRC and Kenya.
3 Power sharing after a civil war: The case of Rwanda
3.1 Background to the conflict
The power-sharing dispensation implemented in Rwanda between

1994 and 2003 emerged in the aftermath of the countrys 1994

genocide during the civil war that started in October 1990. According to Lemarchand,23

[a]lthough there is general agreement among Rwanda specialists that the roots of conflict lie in the transformation of ethnic identities that has accompanied the advent of colonial rule, the chain of events leading to the killings begins with the Hutu revolution of 1959-62 ...
Enduring consequences of the revolution were the abolition of the Rwandan Tutsi-based kingship and the establishment of a Hutu- controlled republic in 1962 at independence, followed by the exile of thousands of Tutsi Rwandans to neighbouring countries, including Uganda, the DRC and Tanzania and beyond.

After a three-decade long exile, emigrated Tutsi formed the backbone of the RPF that would launch an armed insurrection from Uganda against the predominantly Hutu government of President Juvénal Habyarimana. The justification for the war thus stemmed from the prolonged confiscation of political power and the attending socio- economic privileges by successive Hutu regimes coupled with the marginalisation of the Tutsi minority.

A lack of meaningful preparation, inadequate manpower and military assistance from Mobutu’s Zaire (DRC) to the Habyarimana regime, among other things, ensured that the RPF’s early offensive in

1990 was a failure. However, three years later, emboldened military power on the part of the RPF, coupled with persistent tensions within

the Habyarimana regime, led to a military stalemate, providing the ground for the Arusha peace talks in Tanzania. While the parties prepared for the negotiation process through the Arusha talks, in March 1992 an interim coalition government was put in place to manage the country until the completion of the negotiations. It encompassed representatives of Habyarimana’s party, Mouvement National Révolutionnaire pour le Développement et la Démocratie (MNRDD), as well as opposition parties, including the Mouvement Démocratique Républicain (MDR), the Parti Social-Démocrate (PSD) and the Parti Libéral (PL). In spite of the signing of the Arusha Peace Accord in 1993 and clear indications of the unravelling of the transitional government starting a month earlier with the dismissal of interim Prime Minister Dismas Nsengiyaremye, the implementation of

23 R Lemarchand The dynamics of violence in central Africa (2009) 81.

the agreement failed to materialise, mainly due to stalling tactics by parties on both sides as well as the difficulty of ‘wringing resources out of a reluctant international community already fatigued by three

years of post-Cold War nation-building experiments’.24 According to


[t]he Arusha Agreement was signed stillborn, mainly because it failed to take account of the extremist CDR [Coalition pour la Défense de la République], either by including it or by containing it. Instead, the peace agreement wholly excluded the CDR, even from the transitional government. Strong in both the government and the army, the extremists faced a double loss: of the government to the opposition and of the army to the RPF.
The stage was thus set for the very unravelling of the Arusha Agreement itself. Only a trigger was needed for the cataclysm to befall the country. This came in the form of the assassination of President Juvénal Habyarimana on 6 April 1994.
3.2 The power-sharing mechanism
The power-sharing mechanism established in Rwanda in the aftermath of the country’s genocide was peculiar in that it emerged in spite of one of the conflicting parties, namely the RPF, winning the war and assuming power militarily. The official explanation as put forward by the new RPF’s rulers was that the spirit of the Arusha Peace Accord signed on 4 August 1993 by all Rwandan parties to the peace talks ought to be preserved. In fact, the RPF’s emphasis on inclusiveness was so appealing that it earned the party praises, even

from academic quarters, as illustrated by the long quote below:26
The government that was inaugurated on July 19, 1994, was a genuine government of national unity. It was fully in the spirit of the Arusha Peace Agreements of August 1993 which the génocidaire regime had sought to destroy. The new president, Pasteur Bizimungu, was an RPF Hutu who had been a government civil servant in the 1980s. Of the twenty-one ministries, the lion’s share (eight) had gone to the RPF; the rest were evenly distributed, with four ministries going to the ... MDR ... three to the ... PSD, three to the Liberals, two to independent personalities, and one to the small Christian Democratic Party. In ethnic terms fifteen of the new ministers were Hutu and only six were Tutsi. After such a catastrophe the new cabinet looked like a small miracle of reason in a sea of madness.
However, in spite of the official proclamations and the external appearances, the newly-designed power-sharing mechanism was an expected far cry from the original compromise contained in the Arusha Accord that provided for a more balanced distribution of

24 G Khadiagala ‘UN peacekeeping in the Great Lakes region: The DRC, Rwanda and Burundi’ in A Adebajo (ed) From global apartheid to global village: Africa and the United Nations (2009) 312.

25 M Mamdani When victims become killers: Colonialism, nativism, and the genocide in

Rwanda (2001) 211.

26 G Prunier Africas world war: Congo, the Rwandan genocide, and the making of a continental catastrophe (2009) 7.

power among all actors in both the civilian sphere and the security sector. Furthermore, more than the quote above reveals, in reality the new balance of power had significantly tilted in favour of the victorious RPF, following a declaration made on 17 July 1994 by the

latter that27
profoundly modified the nature of the political regime agreed in Arusha: It introduced a strong executive presidency, engineered the dominance of the RPF in the government and redrew the composition of the parliament. The new fundamental law was in effect a piece of subtle constitutional engineering, which attempted to hide the monolithic nature of political power.
The RPF’s prominence within the new Rwandan inclusive transitional framework was not limited to legal aspects; it was equally consistent with the manner in which power was exercised. The latter was

characterised by a closely controlled political environment28 in which

the RPF reigned supreme and the very narrow power base which was

made up of ‘the army and the security services, the party officials ...

and a fraction of the urban population … in particular from Uganda, which returned to the country in the wake of RPF’s victory’.29

The gap between the RPF’s professed adherence to the spirit and letter of the Arusha Accord and the reality of their exercise of power in the context of a morally-shattered society contributed to the erosion of the Rwandan post-genocide power-sharing project. According to

Prunier, the ‘collapse of the national unity government30 came in late

August 1995 with the sacking of Prime Minister Faustin

Twagiramungu alongside four ministers, namely, Seth Sendashonga

(Interior), Immaculée Kayumba (Transport and Communications),

Alphonse-Marie Nkubito (Justice) and Jean-Baptiste Nkuriyingoma

(Information). Of course, as Prunier later notes, in spite of this radical

shift, the government of national unity continued to exist for eight

more years until the April 2003 presidential elections, albeit ‘with diminishing credibility’.31

But the credibility of a regime is not solely derived from its legislative intents and style of exercising power. It also owes to the perception it instils among its citizens as well as its bilateral and multilateral partners. In this context, the commitment on the part of the RPF-controlled transitional government of Rwanda (1994-2003) to bringing a sense of normalcy and statehood to the country in the aftermath of a blatant failure on the part of the United Nations (UN), helped legitimise the transitional process in the eyes of the international community. Internally, memories of the horror brought

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