Opinion | Rising from the ashes of civil wars: The quest for Transitional Justice in Sudan
Until when should the trade-off between justice and peace in Sudan prevail. This question is not only rhetorical but is part of Sudanese political reality. In 2005 and after the signing of the Comprehensive Peace Agreement, the late Dr. John Garang briefed party supporters. He explained that the SPLM could not do much on transitional justice because the National Congress Party were only concerned with peace and reconciliation and rejected discussing the formation of a ‘Truth, Justice and Reconciliation’ as a separate protocol within the CPA. This crucial gap in promoting sustainable peace generated conflicts in Sudan and later in South Sudan. The question therein is why transitional justice is avoided. Peace theory gives one reason; justice may turn disruptive to peace, especially peace with a power-sharing component. Interestingly, many countries that avoided the question of transitional justice continue to remain in cyclic conflicts. Paul Collier who coined this concept could not explain the importance of human agency and determination that may help in changing people’s reality. Collier emphasized the role of destiny in which poor countries are prone to civil war and these same countries are vulnerable and could slide back to war within five years. True? No. There are many countries today that averted a slide back to war. Although not substantially proven, but there is some evidence suggesting that countries that included transitional justice as part of conflict settlements and diligently implemented it are able to break-out from the conflict trap. This includes countries such as Sierra Leone, Liberia, and Rwanda as examples. While countries that rejected or could not agree on a transitional justice component or have not implemented it such as Sudan and the Central African Republic continue to linger in conflict.
Getting back to the ongoing peace process that is expected to conclude this month it is interesting to note that the peace agreement would likely exclude major political and rebel forces such as Sudan Liberation Movement (Abdul Wahid Nur) and the Sudan People Liberation Movement (under Abdul Aziz al Hilu). It is not clear whether this peace process would enable Sudan to break-out of the ‘conflict trap’. In my view, without a strong and genuine component of transitional justice sustainable peace would be both elusive and illusive. There are encouraging signals that Sudan might have a transitional justice component this is what the spokesman of the government negotiation team told reporters. However, his statement could not explain much in terms of what are the instruments floated to address the historic injustices inflicted on many Sudanese by the different governments and actors in Sudan.
Sudan’s Prime Minister Dr. Abdallah Hamdouk also joined in the transitional justice rhetoric telling journalists that Sudan shall consider the experiences of Rwanda and South Africa in its quest for transitional justice. These are encouraging developments but it should be realized from the onset that in resolving conflicts there are no readymade solutions and there is no one size fits all recipe. Sudan should learn from others to help in designing solutions that fit its needs and contexts. I am more convinced that the ongoing discussions on the transitional justice components at the peace talks is done at vertical and elites levels. The absence of civil society and affected communities in the discussion would make the process transplantation of solutions from other contexts if not a ‘copy and paste’ exercise. It resembles a tailor who is making a suit without seeing, leave alone measuring his client.
As an example, although the question addressed by transitional justice in South Africa resembles the Sudanese problem the two could prove to be exponentially different. South Africa’s problem emanated from a strained state-society relation. It is between migrants who inherited the state from a colonial power and the majority who are the indigenous people. The state became an instrument for the survival of this minority and as such used the state machination to instill fear and oppress the indigenous people. This has led the state to pursue violence against the majority and instituting an exclusive state with baggage of human rights abuses and crimes against humanity. This has generated mutual fear; for the Boers, they feared a majority rule and for the African communities they feared the continuity of a minority rule that hides behind a violent state. This concern was clearly articulated by former South African president Mr. Pieter Willem Botha when he engaged Nelson Mandela in indirect negotiation. For Botha, he wanted assurances that the Boers would not be disadvantaged if they allow for majority democracy with its tyranny of numbers.
Going to the example of Rwanda which is a tiny country whose territory may constitute a single Sudanese state such as Southern Kordofan, its problem was inherited from the colonial powers. The same as with Sudan in which inequality was nurtured during the ‘closed district’ ordinance and power was transferred to one component to the advantage of another. The prosecuted Tutsi spent 90% of their life since independence as refugees and guns for hire for various regimes in Congo such as the Bunyamulenge. Others joined the Ugandan civil war as recruits in the National Resistance Army (NRA) and became the backbone for the Rwanda Patriotic Front (PRF) that orchestrated the great return home movement of 1990 and carried out an insurgency that dismantled the Interhamwe militias. Like in the case of the Boers against indigenous population, the conflict in Rwanda was similar a war for survival against a group hiding behind the façade of the state. However, both parties in the two countries realized their ‘mutual vulnerability’ to continue on the same paths and therefore charted a new path towards a common future based on tolerance, co-existence, and interdependence. The Boers lost political, social, and economic prominence in exchange of charting a common future away from constant fear. The same applies to Rwanda.
Coming to the main point, what lessons can Sudan draw from South Africa and Rwanda’s experiences in transitional justice? Interestingly South Africa is an epitome of managing diversity hued with sour racial relations. The South African experience gives lessons on how to deal with entrenched racism that is rooted in the state system and structure and twists it around to achieve an inclusive, tolerant, and peacefully coexisting polity strongly anchored on principles of social justice and equity. The South African Truth and Reconciliation Commission led by the Anglican Archbishop Desmond Tutu succeeded unearthing heinous crimes committed on the basis of racial discrimination. The commission was therefore successful in restoring the fabric of a diversified society. Tapping on the powers of healing by urging perpetrators to tell the truth. The truth for healing supplanted retributive justice and through such mechanism, the South Africans attained restorative justice by naming and shaming but not physically punishing perpetrators.
In Rwanda, the Gachacha courts was a restorative justice mechanism although it was largely a ‘victor’s justice’. The International Criminal Tribunal for Rwanda spent many years without trying major suspects including Felecien Kabuga who was arrested last month after 20 years since the tribunal was formed. The same also with the International Criminal Tribunal for former Yugoslavia that went on for 14 years. Retributive justice although a deterring instrument but is costly in terms of time and resources and societies in most cases need to pull life together. This is the argument of Mahmoud Mamdani in his minority opinion for the African Union Commission of Inquiry on South Sudan in which he argued that although the violence in South Sudan is political but it was carried by constituencies allied to political actors.
Coming back to the Sudan situation, does its context resembles Rwanda or South Africa to borrow their experience. In my view, Sudan needs to generate its own version of transitional justice that is credible and satisficing to prolonged history of state violence and abuses. The state must stand trial through its institutions and traditional parties that contributed in pushing Sudan on the road of social and political injustices. Issues of racial relations (Arabs versus Africans/ Arab-Zurqa) and ethnic and other horizontal differences should be addressed as part of transitional justice. Interestingly Sudan is considered one country that experienced cultural assimilation. In their chapter on Sudan in the General History of Africa Volume IV: Africa in the nineteenth century until the 1880s authors, Ibrahim, Hassan and Ogot, Bethwell (1992) wrote that “the process of cultural and ethnic assimilation [in Sudan] was a two-way process: it led to the Arabization and Islamization of large numbers of Sudanese peoples on the one hand and the indigenization of the Arab immigrants on the other".
Just like the Boers who pushed for an exclusively “all Whites” state by using force and oppression, the Sudanese need to rethink its national identity that has been pushed by force using the state mechanisation. How to forge an inclusive national identity is to move away from an exclusive Arab or African identity – and to embrace Sudanese identity. Mahmoud Mamdani argues that the colonial powers strategically defined themselves in Africa as one race but defined Africans from tribal identity framework. This, he continues, was to create a majority for the colonialists and create no majority among the Africans. The colonialists are seen as white whether they are Scottish, French, English or Spanish – they are one race; while Africans are never defined as Negro that would give Africans a majority but divided Africans into tribes and creating new political identities based on these tribes. Should we speak of the same in Sudan?
It is important that the questions on national identity be defined away from forced claims and processes of cultural assimilation that serves certain interests. This should be discussed transparently and be considered an urgent and important matter. Francis Mading Deng is known to have said that ‘what divides the Sudanese are issues that are not said’; I add another phrase that what divides the Sudanese are issues that are not discussed in the open. Issues of race relations in Sudan requires serious and open discussions without pre-emptive rhetoric of asserting pre-determined national identities. Sudan should brace itself and pay the price in discussing national identity even if it means losing membership in regional entities.
It should be noted that crimes committed on racial grounds need to be opened up. The abuse of state resources to promote exclusive identities should be discussed openly and perpetrators be subjected to options of denouncing their acts publicly or face retributive justice. Those responsible for arming para-military tribal militias that flared mayhems in Darfur, Kordofan and Eastern Sudan should be held accountable for the death and destruction. All lands that are taken by force including natural resources should be returned to their owners. This should be the Sudanese version of transitional justice that must combine retributive and distributive justice and be carried through a combined agency of national and international bodies. Sudanese memory is not short and there are experiences in which processes of transitional justice were politically twisted and ended up covering crimes and building stronger and delicate grievances.
Lastly, I hope that the ongoing negotiations are not approaching transitional justice from either the victor’s justice or the politically-induced transitional justice that offer painkiller to curb cancer. Transitional justice would be of no value if cannot engage with these grievances head-on away from the politics of delay or ‘tagiliy’ as coined by Alex de Waal. Instead of rejecting discussions on secularism and self-determination, it is time to put these on the table and receive the outcome with an open mind. Ethiopia closed speculations when it placed the right to self-determination as part of its constitution. Finally, I think there is a big challenge to Sudanese young generation – the generation that succeeded in deposing the worst tyranny non-violently. Would these emerging generation help Sudan rise from the ashes of historic injustices or would this heritage remains the ‘Achilles heel’ that would shatter prospects for a brighter future?
The Author is a PhD Candidate studying International Relations with focus in Conflict, Peace, and Security and is reachable through firstname.lastname@example.org
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