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4 Power sharing to end a civil war: The case of the

Democratic Republic of the Congo

4.1 Background to the conflict
The DRC conflict that led to the 2003-2006 power-sharing dispensation being analysed hereunder started on 2 August 1998. It followed on a decision by Laurent-Désiré Kabila to send back to their country Rwandan troops that had assisted him in toppling the Mobutu regime a year earlier. In response to Kabila’s decision, the Rwandan government took upon itself to topple its former ally and install a new and friendly leader in its giant neighbour. As was the case in 1996, it subsequently helped set up a Congolese rebellion, the Rassemblement Congolais pour la Démocratie (RCD), to make the whole

initiative look ‘authentically Congolese,57 before being joined by

Uganda and Burundi.

However, the blitzkrieg Rwanda and the RCD had initially hoped for never materialised, mainly thanks to Kabila’s ability to secure military assistance from Zimbabwe, Namibia and Angola, setting the stage for the five-year second Congo war. The war brought into Congolese territory seven national armies supporting either government (Angola, Chad, Namibia and Zimbabwe) or the rebellion (Burundi, Rwanda and Uganda). While Rwanda fully supported and controlled the mainstream RCD headquartered in the far-eastern city of Goma, Uganda sought to cast its own zone of influence by helping establish the Mouvement de Libération du Congo (MLC) before endorsing RCD’s splintering groups, namely, the RCD-Kisangani/Mouvement de Libération (RCD-K/ML) and the RCD-National (RCD-N).

Still, the second war was also a confluence of foreign non-state armed groups pursuing a regime-change agenda against their respective countries. They included the União para Independencia Total de Angola (UNITA); the Alliance pour la Libération du Rwanda (ALiR, later known as the Forces Démocratiques pour la Libération du Rwanda

55 See the NURC’s official website on (accessed 21 October 2012).

56 National Unity and Reconciliation Commission Annual report of activities by the

National Unity and Reconciliation Commission: February 1999-June 2000 (2000) 2.

57 Prunier (n 26 above) 396.

or FDLR); the Conseil National pour la Défense de la Démocratie/Forces de Défense de la Démocratie (CNDD-FDD/Burundi); and so on. Ultimately the war failed to produce a clear winner on the battlefield, setting the stage for the ceasefire and negotiation processes that would pave the way to the 2003–2006 power-sharing transitional mechanism analysed below.
4.2 The power-sharing dispensation
The 2003-2006 power-sharing dispensation in the DRC was derived from the Global and Inclusive Agreement on Transition in the Democratic Republic of Congo, signed on 17 December 2002 through the Inter-Congolese Dialogue (ICD) process. The ICD was held in South Africa between February-April and September- December 2002. It was aimed at providing an opportunity for Congolese socio-political stakeholders to resolve the intractable crisis triggered by the second Congo war. The all-inclusive transitional mechanism it produced was inaugurated on 30 June 2003 when incumbent Joseph Kabila was sworn in as the transitional head of state. It was based upon a very sophisticated power-sharing equation that took into account not only the warring parties (the former government, RCD-Goma, RCD-K/ML, RCD-N, MLC and Mai-Mai), but also representatives of civil society and political parties. It provided for a president seconded by four vice-presidents. National government positions were proportionally shared among the parties. The same principle applied to the two houses of the transitional parliament, namely, the National Assembly and the Senate. Provision was made equally for power sharing at the provincial level, in the diplomatic corps as well as in state-owned enterprises. Power sharing was even extended to ‘democracy supporting institutions’, namely, the Independent Electoral Commission, the National Media Authority, the Truth and Reconciliation Commission, the National Human Rights Commission and the Commission on Ethics and Fight against Corruption. The security sector (national army and national police) was exclusively earmarked for warring parties. The transition was designed to last between two and three years, culminating in the organisation of free and fair elections throughout the country.

Despite some failures, the core provisions of the transitional mechanism as expressed in the Global and Inclusive Agreement were implemented. On account of this mechanism, the DRC was able not only to regain its territorial integrity after five years of a de facto balkanisation, but also, and more importantly, to hold the first free and fair elections in 41 years. Yet, these encouraging end results should not obstruct the disappointing shortcomings that represented the permanent features of the transitional dispensation. First, the transitional dispensation was fraught with exorbitant operational costs due to the large number of personnel it brought about at all levels. The national executive was made up of 60 ministers and deputy ministers, beside the president and his four deputies. The National

Assembly had 500 members and the Senate had 120, all unelected. Second, the transitional dispensation was in every regard ineffective and lacked internal cohesion. Throughout the transition, all inclusive institutions remained fractious. Ultimately, the transitional dispensation only held because of the persistence and commitment of

the UN peace-keeping mission (MONUC)58 deployed in the country,

as well as other key international stakeholders. As Reyntjens rightly

observed, ‘[w]hile MONUC has been rightly criticised for its lack of

robustness, its sheer presence ... has been crucial in preserving the transition’.59 However, he remarked that ‘[t]he externally-induced nature of the transition [was] also its weakness’. In fact, he argues:60

During the second war, regional powers, South Africa in particular, imposed a settlement and, together with international players, put the DRC under a de facto trusteeship and imposed elections on a reluctant domestic political class.
4.3 Implications for justice and human rights
With a death toll of between 3,5 and 5 million people, the second Congo war has been rightly dubbed the bloodiest armed conflict in the world since World War II.61 The conflict equally displaced millions

more, both within and beyond Congo’s national borders. Narratives of the war are replete with accounts of alleged mass atrocities, war crimes, crimes against humanity and other large-scale human rights violations by warring parties on both sides of the conflict spectrum. In this context, it was expected that the end of the civil war would provide an opportunity for perpetrators of the most grievous human rights violations to be prosecuted and some form of justice to be dispensed to their victims.

However, from the onset the transitional mechanism deployed in the DRC following on the provisions of the Global and Inclusive Agreement did not emphasise the pursuit of justice and the promotion of human rights. The fact that the war ended through a negotiated settlement with representatives of all warring parties assuming strategic positions in all spheres of power brought about the paradigmatic dichotomy of peace versus justice. If anything, it was unrealistic to expect a commitment to justice from the very people who stood to be prosecuted in the first place. Instead, consistent with the Global and Inclusive Agreement, President Kabila enacted Decree- Law 03-001 of 15 April 2003, granting amnesty for all minor infringements to rules of war as well as political and opinion crimes

58 Mission de l’Organisation des Nations Unies en publique Démocratique du Congo or

United Nations Mission in the Democratic Republic of Congo.

59 Reyntjens (n 27 above) 263.

60 Reyntjens 7.

61 E Rogier ‘Democratic Republic of Congo: Problems of the peacekeeping process’

in O Furley & R May (eds) Ending Africas wars: Progressing to peace (2006) 99.

committed between 2 August 1998 and 4 April 2003.62 Although the amnesty law clearly avoided covering war crimes, genocide and crimes against humanity, there was no guarantee that the country’s dilapidated justice infrastructure combined with the lack of commitment to justice on the part of all transitional actors would help in making any significant difference.

Cognisant of the difficulty of pursuing retributive justice within the context of power sharing, parties to the Global and Inclusive Agreement called for a South African-style Truth and Reconciliation Commission (TRC). According to Law 04/018 of 30 July 2004 establishing the TRC, the latter was conceived as a dialogue framework, as opposed to a judicial process, designed to unite the Congolese people. The proposed TRC process emphasised disclosure, forgiveness and reparation. Like other transitional institutions, the TRC’s composition was designed to be inclusive of all parties to the

Global and Inclusive Agreement.63 In spite of the enactment of Law

04/018 followed by the actual appointment of all 21 members of the

Commission, the latter was never operational due to a lack of funds

and, more importantly, the lack of commitment from all actors. The

same fate befell the National Human Rights Commission, established by Law 04/019 of 30 July 2004.64 Its main objective consisted of protecting and promoting human rights. Both commissions failed to

live up to their noble missions. As transitional institutions, they were formally phased out on 6 December 2006 when Joseph Kabila was sworn in as the first president of the Third Republic in the DRC.

Besides its unwillingness to pursue effective justice, whether retributive or restorative, the transitional dispensation in the DRC was unable to protect and promote people’s human rights. The signing of the Global and Inclusive Agreement as well as the subsequent deployment of a power-sharing mechanism did not necessarily translate into absolute stabilisation of the DRC. Continued low- intensity violence, especially in the eastern parts of the country – combined with the disappointing incoherence and ineffectiveness characteristic of all transitional institutions including in the security sector – meant that, for many Congolese, the signing of the Global and Inclusive Agreement did not bring much significant improvement in so far as their human rights were concerned. Even more disturbing was the fact that transitional leaders were not only unwilling to

62 See ‘Présidence de la République, Décret-Loi no 03-001 du 15 avril 2003 portant amnistie pour faits de guerre, infractions politiques et d’opinion’ Journal Officiel Numéro Spécial 17 April 2003.

63 See ‘Présidence de la République, Loi no 04/018 du 30 juillet 2004 portant organisation, attributions et fonctionnement de la Commission Vérité et Réconciliation’ Journal Officiel Numéro Spécial 1 August 2004.

64 See ‘Présidence de la République, Loi no 04/019 du 30 juillet 2004 portant organisation, attributions et fonctionnement de l’Observatoire National des droits de l’Homme’ Journal Officiel Numéro Spécial 1 August 2004.

commit to protecting and promoting human rights, but were also responsible for violating them.

The ineffectiveness displayed by the transitional government in pursuing justice and protecting and promoting human rights paved the way to the International Criminal Court (ICC) to intervene in pursuit of Congolese war crimes suspects. With government co- operation, the ICC was able to arrest Thomas Lubanga and Mathieu Ngudjolo Chui in connection with the 2002-2003 inter-community violence in the Ituri district in North Eeastern DRC. However, it ought to be mentioned that the inter-community violence in Ituri did not form part of the conflict network dealt with by the Global and Inclusive Agreement. Furthermore, government has refused to execute an ICC arrest warrant against Bosco Ntaganda, former commander of the Congrès National pour la Défense du Peuple (CNDP), arguing that this would jeopardise the peace process agreed upon in

2009 between government and the CNDP. However, three years after the signing of the Goma Peace Agreement between government and

the CNDP, insecurity still persists in eastern DRC, as symbolised by the emergence of the Movement of 23 March (M23) in April 2012. The M23 is a new rebel group made up of former CNDP combatants and civilian officials. It officially claims to have been established as a result of the Congolese government’s stalling on the effective implementation of the 2009 Goma Agreement. However, as subsequent developments have demonstrated, this official line of explanation masks the real motives behind the establishment of this rebel movement which ought, instead, to be found in President Kabila’s ‘attempt ... to rotate ex-CNDP soldiers out of the Kivus in a bid to [both] smash the ex-CNDP parallel chains of command’ within the North Kivu military region and ‘to break up the “mafia”

controlling the east of the country’.65
5 Power sharing after a contested electoral process: The case of Kenya
5.1 Background to the post-electoral violence
It would be mistaken to envisage the 2007-2008 violence that engulfed Kenya following the controversial December 2007 elections as a mere case of post-electoral violence, especially if one takes into consideration the variations in patterns of violence observed in different locations of the country. Although it is true that the violence was triggered by the disputed result of the presidential election, it ought to be acknowledged that the violence was equally an expression of the major contradictions besetting Kenyan society and

65 P Jones ‘Rwanda’s connection to the M23 rebels must not be ignored’ http:// (accessed 31 May 2013).

which have their root causes in the country’s colonial legacy compounded by its peculiar post-colonial political experiences.

Kenya was a British protectorate and later became a colony between 1895 and 1963. The main pattern of British colonisation in Kenya was its policy of establishing white settler communities around the Rift Valley region, the homeland of, amongst others, the Kalenjin. The formation of settler communities thus formed part of the colonial urbanisation and socio-economic development drive. Hence, it targeted the country’s most fertile lands and most development-prone region. The formation of settler communities was directly linked to large population movements, both as a deliberate colonial policy for the provision of cheap labour and as an ongoing private initiative as people sought to take advantage of opportunities brought about by urbanisation and the development of white settlements. The white settlement policy and its attending large-scale population movements contributed to disrupting patterns of land ownership in a society where land right was primarily a collective or communal right. This development triggered a two-pronged response on the part of those who lost their ancestral land. On the one hand, it fed anti-colonial sentiment, a precursor to nationalist awakening for the end of colonisation. On the other hand, it fed inter-ethnic resentment between ‘migrant’ ethnic groups (Kikuyu) and Rift Valley’s ‘native’ communities (Kalenjin).

In this context, independence was regarded as an ideal moment to redress colonisation-orchestrated injustices, especially with regard to the land question. However, ‘[l]and policy in “independent” Kenya

has faithfully perpetuated the colonial land tenure system’.66 As far as

the Rift Valley region is concerned, this has through the years

translated into feelings of land dispossession among local groups

(including the Kalenjin) in the hands of the ‘economically and

politically dominant Kikuyus, who redistributed government-held land to their own advantage after independence’.67 But since land right was collective in its essence, protests for land restitution were deemed

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