P221 – Representation, Participation and Punishment: Contesting Justice in Africa
9 July, 14:00 – 15:30

Anders Gerhard / Centre of African Studies, University of Edinburgh
Zenker Olaf / University of Bern


Justice is at the heart of debates about political representation, economic participation and criminal justice. Since the struggle for independence, these debates have loomed large in politics south of the Sahara. Drawing on modernization and dependency theories they have been mainly framed in terms of social justice in the context of widespread poverty and inequality. Since the 1990s, a new paradigm of liberalism based on individual rights and obligations has emerged. As a consequence, justice has also been framed in terms of democratic and civil liberties as well as transitional justice.
The panel invites contributions that interrogate these various ways of framing justice, their multifarious connections, contradictions and gaps. It brings together empirical studies of (1) economic development and empowerment, (2) democratic participation and representation and (3) transitional justice mechanisms. Conventionally these three broad subject areas have been discussed in isolation from each other. By focusing on the underlying theme of attempts to realize justice by representation, participation and punishment the panel aims at developing a new perspective on political theory and history in Africa.

Représentation, participation et peines : contestation de la justice en Afrique
La justice est au cœur des débats relatifs à la représentation politique, à la participation économique et à la justice pénale. Depuis le combat pour l’indépendance, ces débats ont compté en matière politique au sud du Sahara. Dans le sillage des théories de la modernisation et de la dépendance, ils se sont notamment construits autour de la thématique de la justice sociale, dans un contexte de pauvreté endémique et d’inégalités. Depuis les années 1990, un nouveau paradigme libéral fondé sur une logique de droit et de devoir émerge. Par conséquent, la problématique judiciaire s’est également trouvée rattachée aux questions de libertés démocratiques et civiles, ainsi qu’au concept de justice transitionnelle.

Ce panel invite des contributions interrogeant les différents chemins menant à la construction de la justice, la grande variété des liens entre ces chemins, de leurs contradictions et de leurs divisions. Il établit une passerelle entre (1) les travaux empiriques ayant trait au développement économique et à la responsabilisation, (2) la représentation et la participation démocratiques et (3) les mécanismes de justice transitionnelle. Ces trois grands sujets d’études ont traditionnellement été considérés de manière isolées les uns des autres. En se concentrant sur le thème sous-jacent des tentatives visant à mettre en œuvre la justice par le biais de la représentation, la participation et la nature des peines, ce panel entend développer une nouvelle perspective concernant l’histoire et la théorie politique en Afrique.


Paper 1

Anders Gerhard / University of Edinburgh

Zenker Olaf / Free University Berlin

Retributive vs. distributive justice: Popular demands and official narratives in Sierra Leone and South Africa

This presentation compares popular demands for justice with official narratives how justice is achieved in two countries where transitional justice institutions have played a role in defining justice and the new socio-political order. It will compare the debate about retributive justice in Sierra Leone with the debate about distributive justice in South Africa.
In Sierra Leone, an international criminal tribunal, sought to bring justice by punishing those ‘bearing greatest responsibility’ for war crimes and crimes against humanity but many people have been disappointed by the vision of retributive justice espoused by the court. They have been demanding recognition for their suffering and social justice in the form of public services and poverty reduction. Ethnographic evidence from outreach events conducted by representatives of the court highlights the disconnect between the court’s vision of global justice and people’s demands.
With the end of apartheid, the new South African state immediately embarked upon a substantial land reform programme. Constituting a kind of reparation programme, land reform has adhered to the liberal logic of transitional justice, addressing historical wrongs through legal institutions. However, expectations regarding African agrarian production have largely not been met. Some critics have blamed the government’s lack of political will and the restrictive rule of law for this failure, advocating instead nationalisation of all land.

Paper 2

Bens Jonas / Rheinische Friedrich-Wilhelms-Universität Bonn

Legitimate Justice in International Criminal Law in Africa – Towards an Emotional Approach?

‘Why do people obey the law?’, the legitimacy question, is one of the classical topics of legal theory and is of great importance in the context of transitional justice: is the new order of punishment regarded as a legitimate legal answer to past cruelties or simply as victor’s justice? The International Criminal Court (ICC) for instance is often seen as illegitimate in the political discourses on the African Continent.
Several theories approach the question of legitimacy: Rational Choice Models consider the enforcement of legal action as central. Normative Models lay emphasis on the moral discourse, which has to be in alignment with legal practice. Procedural Justice Models see a connection between the perceived fairness of the legal process and the perceived of legitimacy of the legal order.
Recent Law and Emotion research challenges these theories of legitimacy as all of them rest upon concepts of rationality and reasonableness regarding the participants in a legal system. When one introduces concepts of emotion into the realm of legitimacy – in other words: if one asks the question if the legal system “feels right” – the analysis shifts in important ways.
It is the aim of this paper to outline the consequences of such an approach for the analysis of transitional justice and criminal prosecution, exemplified at the ICC proceedings against leading figures of the Lord’s Resistance Army (LRA) in Uganda.

Paper 3

Gibert Marie / Nottingham Trent University

Transnational Advocacy Networks in the Hissène Habré Affair

In early 2013 Senegal, upon the request of the African Union, inaugurated the Extraordinary African Chambers (EACs) tasked with prosecuting former Chadian president Hissène Habré for the crimes and human rights abuses committed under his rule. The trial is expected to start in 2015. The EACs, although the product of state action, are the result of years of investigation and lobbying exercised by a ‘transnational advocacy network’ (Keck and Sikkink, 1998) made of Chadian, Senegalese and international non-governmental organisations and their representatives. The proposed paper, based on the content analysis of a number of primary sources (NGO reports and statements, individual auto-biographies, newspaper reports), will focus on these organisations and individuals, trying to make sense of their interests and motivations, as well as the way they worked, communicated and organised to bring about the trial of Habré (and of his accomplices in Chad). Who are they and who do they represent? What has driven their twenty-year-long struggle to bring Habré to trial? Why and how have individuals and organisations from different countries come to work together? What has been their role in bringing about the EACs? What role are they playing in the current investigations and in the preparation of the trial itself? This paper will attempt to address these questions and map these actors and the considerable work that takes place behind the official, state executive and judiciary scenes.

Paper 4

Dezalay Sara / Goethe Universität Frankfurt am Main

Stay the hand of justice in post-conflict Burundi: Lawyers between lawfare and extraversion

The issue of justice has been at the forefront of domestic and international efforts towards rebuilding the rule of law in post-conflict Burundi. This presentation underlines the role played by lawyers historically in the construction of the state and in brokering global-led transformations in post-conflict Burundi. It underscores that the judiciary and the Burundian legal field more generally have been shaped by politics of instrumentalization of the law and judicial institutions for repressive and political purposes: initiated under the Belgian mandate, those were pursued by the successive Tutsi-dominated military regimes and are perpetuated by the government in power since the 2005 political transition. On the other hand, international investments in the aftermath of the 1993 have promoted Burundi as a “laboratory” of “bottom-up” rule of law investments, through non-governmental initiatives. These investments have reinforced the bifurcation of the legal field: between politically dependent judicial institutions, and a market for legal reform that is deeply “extraverted” (Bayart 2000) and reliant on international NGOs and donors. This bifurcation is further strengthened by the emergence of the current government as a “liberalized authoritarian regime” (Cavatorta 2013) relying on “lawfare” (Comaroff 2001) as an instrument of repression, as a resource in domestic politics but also as a strategy of opposition through internationalized relays and resources.

Paper 5

Dancer Helen / University of Brighton

The discourse of haki sawa: Equal rights, justice and constitutional reform in Tanzania

This paper explores Tanzanian concepts of justice and rights (haki) in the context of new equality provisions in Tanzania’s draft constitution of 2014. The Kiswahili word haki (meaning both justice and rights) has a rich socio-linguistic meaning (Geertz 1983, Hirsch 1998) and is deeply embedded in the political history of Tanzania itself. Haki and equal rights (haki sawa) are closely associated with the father of the nation, Mwalimu Julius Nyerere and the country’s political independence. More recently, the discourse of haki sawa has played an important role in debates on women’s land rights and constitutional reform in Tanzania.
These discourses of justice and rights are also evident in legal contexts. A legacy of Tanzania’s social and political history is the complexity of normative frameworks for doing justice that feature in its contemporary plural legal system. Here, justice encompasses values of reconciliation and peace as well as common law legal principles of natural justice. Local norms of reconciliation are used both within families and in tribunal settings. These in turn form part of the social values and approaches to dispute resolution of a particular community. This paper reflects upon the origins and usages of Tanzanian notions of justice and equal rights and their relationship with other norms in recent constitutional reforms and in legal processes of justice.

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