African human rights law journal

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international third parties as a mechanism to address the impasse brought about by the mishandling of the presidential elections by the country’s electoral commission. The Rwandan and Kenyan cases did not thus fall into the ‘classical’ model of power sharing as applied in the DRC where it served as a peace-making tool designed to end the five-year second Congo war. The main objective of the DRC’s power- sharing model was to provide the different stakeholders with a stake in the transitional dispensation so as to win their support for the peace and stabilisation processes that included the profound renewal of the country’s ruling class through free and fair elections.
In spite of their shared perspective with regard to distributing power among the main socio-political stakeholders, power-sharing mechanisms implemented in post-genocide Rwanda, post-election Kenya and ‘post-war’ DRC differed very significantly in terms of their content and scope, a direct consequence of the different contexts in which they were applied.
In Rwanda, the fact that the RPF had won the war and the defeated Habyarimana bureaucracy and security forces had almost entirely relocated outside the country not only imposed the RPF as the sole agenda setter in terms of the power-sharing mechanism, but also confined the latter to the national executive and legislature. In Kenya, power was only shared in the national executive because the post- electoral dispute only focused on the result of the presidential elections. However, in the DRC, power sharing was all-encompassing,

extending to spheres and sectors as different as the national and provincial executives, the national legislature, the diplomatic corps, the public enterprises, the national army and the national police as well as transitional institutions designed to support the democratic process, including the electoral commission.

Although acknowledged as a precious peace-making tool and a mechanism to foster inclusiveness, social cohesion and national unity, power sharing does not always perform well in the areas of justice and human rights in ‘post-violence’ societies.
In post-genocide Rwanda, the military victory of the RPF on the battlefield provided an ample opportunity to the country’s new leadership for the pursuit of justice and the punishment of human rights violations perpetrated during the war and the genocide. Seizing this opportunity, the international community established the ICTR while Rwandan authorities used the national judicial system, the Gacaca courts and the NURC, to prosecute human rights violations committed during the country’s crisis and/or work toward national reconciliation. The ICTR, the national judicial system, as well as the Gacaca courts have all ensured that justice has been served for the victims of the genocide and that the perpetrators of human rights violations during Rwanda’s darkest episode have been punished. However, it ought to be acknowledged that this only became possible because of the method of war termination in Rwanda (ending in military victory). Furthermore, although impunity has been avoided in Rwanda, the justice that has been served by the international and the national processes has been criticised as being one-sided, and as a victors’ justice applying only to the losers.

In the DRC and Kenya, power sharing contributed to turning former conflicting parties and alleged perpetrators of human rights violations into key actors in the search for political stability and peace. As such, although it brought about relative peace and stability, power sharing quickly became a major stumbling block to the pursuit of retributive justice. Still, the same actors have equally displayed a disturbing lack of interest in pursuing restorative justice by undermining the reconciliation commissions and processes. In both countries, power sharing has turned into a shield designed to protect the elite from prosecution for their misdeeds. It has led to systemic impunity, raising the prospects for the direct and enhanced involvement of the ICC as a justice mechanism of last resort for the Congolese and Kenyan victims of human rights abuses at the hands of their self-styled rulers.

In conclusion, the cases of Rwanda, Kenya and the DRC analysed in this article thus highlight the need for

• further academic research into the concept of ‘post-violence’ power sharing in order to distinguish among different strands and their respective implications for justice and human rights;

• resolving the peace versus justice dilemma in post-violence societies through the formulation of a justice and human rights

model compatible with power-sharing mechanisms, especially in societies where the latter imposed themselves as the only possible peace-making tools; and

• learning from the Rwandan experience that power sharing can be adhered to voluntarily as a mechanism to foster inclusiveness, social cohesion and national unity – especially in societies divided along identity lines and emerging from protracted violence – while at the same time pursuing justice for the victims and punishing the perpetrators of past human rights violations.

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